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us/10525897.json

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+"{\"id\": \"10525897\", \"name\": \"UNITED STATES of America, Plaintiff-Appellant, v. Clifford R. PIERSON, Defendant-Appellee\", \"name_abbreviation\": \"United States v. Pierson\", \"decision_date\": \"1991-10-07\", \"docket_number\": \"No. 90-5399\", \"first_page\": \"1044\", \"last_page\": \"1049\", \"citations\": \"946 F.2d 1044\", \"volume\": \"946\", \"reporter\": \"Federal Reporter 2d Series\", \"court\": \"United States Court of Appeals for the Fourth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T20:29:35.586924+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before ERVIN, Chief Judge, and WIDENER, and HAMILTON, Circuit Judges.\", \"parties\": \"UNITED STATES of America, Plaintiff-Appellant, v. Clifford R. PIERSON, Defendant-Appellee.\", \"head_matter\": \"UNITED STATES of America, Plaintiff-Appellant, v. Clifford R. PIERSON, Defendant-Appellee.\\nNo. 90-5399.\\nUnited States Court of Appeals, Fourth Circuit.\\nArgued April 12, 1991.\\nDecided Oct. 7, 1991.\\nAs Amended Oct. 25, 1991.\\nDavid Earl Godwin, Asst. U.S. Atty., Clarksburg, W.Va., argued (William A. Ko-libash, U.S. Atty., on brief), for plaintiff-appellant.\\nStephen Godfrey Jory, Busch, Jory, Smith & Talbott, Elkins, W.Va., argued, for defendant-appellee.\\nBefore ERVIN, Chief Judge, and WIDENER, and HAMILTON, Circuit Judges.\", \"word_count\": \"2750\", \"char_count\": \"16716\", \"text\": \"OPINION\\nERVIN, Chief Judge:\\nClifford Pierson was charged in a three count indictment resulting from a bombing incident. These charges included two counts relating to the explosion and one count of making false declarations to the Grand Jury. After a jury trial, Pierson was acquitted of the explosives charges but was convicted of the false declarations charge. At sentencing, the government urged that Pierson be sentenced as an accessory after the fact under sections 2J1.3(c) and 2X3.1 of the Federal Sentencing Guidelines. The district court found that Pierson should not be sentenced as an accessory after the fact. The government appealed this determination. We find no error in the sentence imposed by the district court and hereby affirm.\\nI\\nOn Monday morning, November 14,1988, a pipe bomb exploded in the Home National Bank in Sutton, West Virginia. The explosion seriously injured the bank's chief executive officer, Roy W. Cutlip. The bomb was inside a file box which had been placed on Cutlip's desk. It exploded when he opened the file box. The box was placed on Cutlip's desk sometime between 10:30 a.m. Sunday, November 13 and 7:00 a.m. Monday, November 14. Two witnesses testified that they saw Pierson, a bank officer for Home National, on or near the bank premises during the Sunday afternoon to Monday morning time period. Investigators obtained permission to search Pier-son's home. There they found and seized a pipe wrench.\\nOn January 11, 1989, Pierson appeared before the Federal Grand Jury. He was asked whether he was at the bank on Sunday afternoon or early Monday morning. He denied being present at the bank on either occasion.\\nIn late August 1989, the Alcohol Tobacco and Firearms laboratory notified investigators that its toolmark expert was of the opinion that Pierson's pipe wrench was the tool which had made marks on the pipe fragments that were recovered from the scene of the bombing. When Pierson was informed of the pipe wrench evidence, he responded that someone else must have stolen the wrench and then returned it.\\nOn September 20, 1989, the Grand Jury in the Northern District of West Virginia handed down a three count indictment against Pierson. Count I charged Pierson with knowingly possessing a firearm (a destructive device) in violation of 26 U.S.C. \\u00a7 5861(c) and 5871. Count II charged Pier-son with malicious damage by means of an explosive (a pipe bomb) resulting in injuries to another person in violation of 18 U.S.C. \\u00a7 844(i). Count III charged Pierson with knowingly making false material declarations to the Grand Jury while under oath in violation of 18 U.S.C. \\u00a7 1623. The allegedly false declarations were Pierson's denials that he had been at the bank near the time of the bombing. A jury trial was held on March 13-16, 1990. Pierson was acquitted on Counts I and II but was convicted on Count III.\\nIn the original presentence report, the probation officer calculated Pierson's offense level at 15. He used a base offense level of 12 as provided in \\u00a7 2J1.3(a) of the Federal Sentencing Guidelines (\\\"Guidelines\\\") and adjusted it upwards 3 levels for substantial interference with the administration of justice under Guidelines \\u00a7 2J1.3(b)(2) because the offense involved false testimony before a grand jury. Pier-son objected to the 3 level enhancement under \\u00a7 2J1.3(b)(2). The government objected to the offense level, arguing that \\u00a7 2J1.3(c) required that the court apply \\u00a7 2X3.1 because Pierson was an accessory after the fact.\\nAt the sentencing hearing, the district court agreed with the defendant's objection to the 3 level enhancement. The court disagreed with the government's assertion that \\u00a7 2X3.1 should be applied. Therefore, the court found that Pierson's base level was 12 and his criminal history category was I. Thus, the sentencing range was 10-16 months. The court then sentenced Pier-son under Guidelines \\u00a7 501.1(d) to 5 months imprisonment, followed by supervised release for two years with the first 5 months being spent in home detention. Thereafter, Pierson filed a Motion for Confinement In Work Release Facility seeking a reconsideration of the terms of his sentence. The court denied Pierson's motion and declined to modify the terms of Pier-son's sentence.\\nThe government appealed Pierson's sentence on the ground that the court should have applied \\u00a7 2X3.1. The court's determination that Pierson was not an accessory after the fact in this case was a legal conclusion which is subject to de novo review. See United States v. Huppert, 917 F.2d 507, 510 (11th Cir.1990).\\nII\\nThis case involves the application of Section 2J1.3(c) of the Guidelines. Section 2J1.3(c) is a cross reference section which provides:\\n(1) If the offense involved perjury or subornation of perjury in respect to a criminal offense, apply \\u00a7 2X3.1 (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above.\\nUnited States Sentencing Commission, Guidelines Manual, \\u00a7 2J1.3(c) (Nov. 1989) (hereinafter U.S.S.G.). Section 2X3.1 is the \\\"Accessory After the Fact\\\" section which provides:\\n(a) Base Offense Level: 6 levels lower than the offense level for the underlying offense, but in no event less than 4, or more than 30.\\nU.S.S.G. \\u00a7 2X3.1. Thus, under \\u00a7 2J1.3(c), a court must determine if Pierson's perjury was \\\"in respect to a criminal offense.\\\" If so, the court must apply \\u00a7 2X3.1 if application of \\u00a7 2X3.1 would result in a greater sentence than determined under the other sections of \\u00a7 2J1.3.\\nIn this case, it is clear that Pierson's perjury was \\\"in respect to a criminal offense.\\\" His perjury related to whether or not he was near the bank near the time of the bombing. Pierson repeatedly testified that he was not, and the jury apparently believed that Pierson lied to the Grand Jury in those denials. Bombing is certainly a criminal offense. See 18 U.S.C.A. \\u00a7 844(i) (West.Supp.1991). Therefore, it is clear that the perjury was in respect to a criminal offense. As a result, \\u00a7 2J1.3(c) requires the application of \\u00a7 2X3.1, unless \\u00a7 2X3.1 by its terms does not apply to the facts in this case.\\nOnce we have determined that \\u00a7 2X3.1 applies, we must then determine what sentence, if any, would be required under \\u00a7 2X3.1. The district court found that \\u00a7 2X3.1 did not apply without a great deal of discussion. The court stated:\\nThe probation officer addressed this position in the Second Addendum to the Pre-sentence Report and found that he did not believe this should apply, because the defendant was acquitted of the underlying offense. And the underlying offense is described in 2X3.1, as an offense to which the defendant is convicted of being an accessory.\\nJoint Appendix at 50. We cannot agree with the rationale of the district court. The Guidelines do not require a conviction of the underlying offense unless the particular provision expressly requires conviction. See U.S.S.G. \\u00a7 1B1.3, Application Note 5. Application Note 5 to \\u00a7 1B1.3 provides:\\nA particular guideline (in the base offense level or in a specific offense characteristic) may expressly direct that a particular factor be applied only if the defendant was convicted of a particular statute_ Unless such an express direction is included, conviction under the statute is not required.\\nId. Section 2X3.1 does not expressly require a conviction of the underlying offense. Therefore, we find that the district court was wrong in its rationale for not applying \\u00a7 2X3.1. However, this conclusion does not end our inquiry. We must still determine whether \\u00a7 2X3.1 applies in this case.\\nUnfortunately, we have found no caselaw directly dealing with the interplay between \\u00a7 2J1.3 and \\u00a7 2X3.1. However, a recent Eleventh Circuit case involved a similar guideline provision and gives us great guidance. See United States v. Huppert, 917 F.2d 507 (11th Cir.1990) (dealing with the issue of whether to apply \\u00a7 2X3.1 through Guideline 2J1.2(c)(1)).\\nGuideline \\u00a7 2J1.2 is the Obstruction of Justice provision. See U.S.S.G. \\u00a7 2J1.2. It is very similar to \\u00a7 2J1.3. Both begin with a base level of 12. Compare U.S.S.G.\\n\\u00a7 2J1.2(a) with U.S.S.G. \\u00a7 2J1.3(a). Both add 8 levels if the offense involved personal or property damage. Compare U.S.S.G. \\u00a7 2J1.2(b)(1) with U.S.S.G. \\u00a7 2J1.3(b)(l). Both add 3 levels if the offense resulted in a substantial interference with the administration of justice. Compare U.S.S.G. \\u00a7 2J1.2(b)(2) with U.S.S.G. \\u00a7 2J1.3(b)(2). Finally, both have a cross reference section to \\u00a7 2X3.1 if the offense was \\\"in respect to a criminal offense.\\\" Compare U.S.S.G. \\u00a7 2J1.2(c)(1) with U.S.S.G. \\u00a7 2J1.3(c)(l). The language in each provision is identical.\\nThe Commentary to the Perjury Section (\\u00a7 2J1.3) indicates that the Perjury Section should be interpreted like the Obstruction of Justice Section. The Background Commentary provides:\\n\\\"The Commission believes that perjury should be treated similarly to obstruction of justice. Therefore, the same considerations for enhancing a sentence are applied in the specific offense characteristics, and an alternative reference to the guideline for accessory after the fact is made.\\\"\\nU.S.S.G. \\u00a7 2J1.3, Background Commentary. Due to this instruction to treat the two provisions similarly, we think it appropriate to look at the Commentary to the Obstruction of Justice Section (\\u00a7 2J1.2) for further guidance. The Background Commentary to \\u00a7 2J1.2 provides:\\nThe specific offense characteristics reflect the more serious forms of obstruction. Because the conduct covered by this guideline is frequently part of an effort to assist another person to escape punishment for a crime he has committed, an alternative reference to the guideline for accessory after the fact is made.\\nU.S.S.G. \\u00a7 2J1.2, Background Commentary. The Eleventh Circuit seized upon this Background Commentary to \\u00a7 2J1.2 in United States v. Huppert, 917 F.2d 507 (11th Cir.1990).\\nIn Huppert, the defendant was indicted on two counts for obstructing justice. He had encouraged two persons who had been subpoenaed to the grand jury to testify that his deceased associate was involved in certain money laundering activities which were under investigation. Huppert was convicted of the two counts of obstructing justice in violation of 18 U.S.C. \\u00a7 1503. At sentencing, the trial court determined that the government had presented sufficient evidence to prove that Huppert was guilty of the underlying criminal activity under investigation. Id. at 509. The trial court also determined that Huppert was trying to help others by obstructing justice. Id. The trial court applied \\u00a7 2J1.2(c)(l) and then treated Huppert as an accessory after the fact under \\u00a7 2X3.1.\\nThe Eleventh Circuit reversed the trial court's sentencing. Id. at 511. The court began by noting that determining whether Huppert was an accessory after the fact was a legal conclusion subject to de novo review. Id. at 510. The court then found that the district court had erred in concluding that Huppert attempted to protect others and therefore was an accessory after the fact. Id. The court relied upon the above mentioned Background Commentary to \\u00a7 2J1.2 as support for its holding:\\nThe guideline itself contemplates that one sentenced through the cross-reference as an accessory cannot be a principal.... [Ujnder the guidelines, relevant conduct is incorporated into the base offense level by a prescribed process. Section 2J1.2(c)(l) provides a specific method by which a court may consider conduct outside the offense of conviction. That method is consistent with our understanding of the law of principals and accessories. Because Huppert cannot be sentenced as an accessory after the fact, we conclude that the district court incorrectly applied \\u00a7 2J1.2(c)(l) to this case.\\nId. at 511.\\nThe Huppert reasoning is instructive. In the case at bar, Pierson was charged as a principal in the bombing at the bank. He was not charged as an accessory. When he denied being present at the bank near the time of the bombing, it seems more than likely that Pierson was trying to protect himself, rather than others.\\nThe government argues that Huppert is factually distinguishable. The government points to the fact that Huppert was convicted of being a principal in the underlying offenses. In contrast, Pierson was acquitted of being a principal in the underlying offenses. As a result, the government contends that Pierson must have been trying to protect someone other than himself. However, it is just as likely, if not more likely, that Pierson was trying to protect himself. In fact, he may have successfully done just that given his acquittal in the underlying two counts. We do not believe that the government's assertion that Pier-son must have been protecting others is supportable. The fact that the government charged him as principal in Counts I and II refutes that assertion.\\nUnder the rationale of Huppert, Pierson is not an accessory after the fact. This view is further supported by the holding in United States v. Berkowitz, 712 F.Supp. 707 (N.D.Ill.1989), rev'd on other grounds, 927 F.2d 1376 (7th Cir.1991). There, Ber-kowitz was convicted of two counts of obstruction of justice and one count of stealing United States property. Id. at 708. The district court held that \\u00a7 2X3.1 was inapplicable to Berkowitz:\\nThe government also claims that the court should apply \\u00a7 2X3.1, which results in a higher offense level for Counts I and II. Section 2X3.1, however, is inapplicable. That section is entitled, \\\"Accessory After the Fact.\\\" Applying \\u00a7 2X3.1 in the instant case would result in treating Berkowitz as an accessory to his own alleged tax fraud and mail fraud. The official comments to \\u00a7 2J1.2 indicate that such an application of \\u00a7 2X3.1 is not appropriate. Therein, the commission explains that \\u00a7 2X3.1 is applied in obstruction of justice cases \\\"[bjecause the conduct covered by the [obstruction of justice] guideline is frequently part of the effort to assist another person to escape punishment for a crime he committed.\\\" (Emphasis added.) Since Ber- kowitz did not commit obstruction of justice to assist another person, \\u00a7 2X3.1 is inapplicable.\\nId. at 709.\\nWe find that section 2X3.1 does not apply in this case for the reasons stated in Hup-pert and Berkowitz, namely that Pierson was most likely trying to protect himself and not others. Although Huppert and Berkowitz involved \\u00a7 2J1.2(c) rather than \\u00a7 2J1.3(c), the reasoning of those cases is applicable by analogy. The commentary to \\u00a7 2J1.3 supports the use of such an analogy between \\u00a7 2J1.2(c) and \\u00a7 2J1.3(c). See U.S.S.G. \\u00a7 2J1.3, Background Commentary-\\nWe note that when the government seeks to enhance a sentencing range, it bears the burden of proof. United States v. Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir.1989). We find that Pierson's range should be enhanced under \\u00a7 2X3.1. Therefore, we find that the district court properly refused to apply \\u00a7 2X3.1 in this case, and we affirm the sentence imposed upon Pierson.\\nAFFIRMED.\\nUnited States v. Berkowitz, like Huppert, involves the interaction between \\u00a7 2J1.2(c) and \\u00a7 2X3.1 rather than \\u00a7 2J1.3(c) and \\u00a7 2X3.1.\"}"

us/10542077.json

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+"{\"id\": \"10542077\", \"name\": \"REO INDUSTRIES, INC., Plaintiff-Appellant, v. NATURAL GAS PIPELINE COMPANY OF AMERICA, Defendant-Appellee\", \"name_abbreviation\": \"Reo Industries, Inc. v. Natural Gas Pipeline Co. of America\", \"decision_date\": \"1991-06-03\", \"docket_number\": \"No. 90-1660\", \"first_page\": \"447\", \"last_page\": \"458\", \"citations\": \"932 F.2d 447\", \"volume\": \"932\", \"reporter\": \"Federal Reporter 2d Series\", \"court\": \"United States Court of Appeals for the Fifth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T20:58:01.268297+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BROWN, SMITH, and WEINER, Circuit Judges.\", \"parties\": \"REO INDUSTRIES, INC., Plaintiff-Appellant, v. NATURAL GAS PIPELINE COMPANY OF AMERICA, Defendant-Appellee.\", \"head_matter\": \"REO INDUSTRIES, INC., Plaintiff-Appellant, v. NATURAL GAS PIPELINE COMPANY OF AMERICA, Defendant-Appellee.\\nNo. 90-1660.\\nUnited States Court of Appeals, Fifth Circuit.\\nJune 3, 1991.\\nMarshall Searcy, Sam Dalton, Locke, Purnell, Rain & Harrell, Dallas, Tex., Jody G. Sheets, Culton, Morgan, Britain & White, Amarillo, Tex., for plaintiff-appellant.\\nDennis M. Dylewski, Mark A. Bukaty, Daniel R. Cabianca, Calvin, Dylewski, Gibbs, Maddox & Verner, Houston, Tex., Jerome Mrowca, Asst. Gen. Counsel, Mid-Con Corp., Lobard, Ill., for defendant-appel-lee.\\nBefore BROWN, SMITH, and WEINER, Circuit Judges.\", \"word_count\": \"6657\", \"char_count\": \"39690\", \"text\": \"JOHN R. BROWN, Circuit Judge:\\nREO Industries appeals from summary judgment for Natural Gas Pipeline (NGPL) in this action for declaratory judgment and damages for the alleged breach of an operating agreement. REO complains that NGPL has breached the agreement governing rights to produce oil and gas by interfering with its right to produce gas. Federal jurisdiction is based on diversity, and Texas law is applied. The dispute centers on the interpretation of the contract, and so we review, as with any question of law, de novo on appeal from summary judgment. Finding no genuine issues of material fact and no legal error, we affirm.\\nHere's What Happened\\nREO owns oil rights, and NGPL owns gas rights on the same 640 acres in the West Panhandle field. They are successors to the parties to a 1933 operating agreement governing oil and gas development activities on the subject property and other properties. The agreement specifies procedures to be followed when, in drilling, the oil operator finds gas or the gas operator finds oil.\\nThe one drilling the well may offer the well to the other, who is not obligated to buy. If tender is made and the option to purchase is exercised, the price is to be determined in part by a joint production test. If the option is not exercised, the drilling party retains his well and \\\"its production,\\\" and must pay the royalties on such production. See infra, note 5.\\nNGPL and its predecessor (Texoma), as gas operators have been producing gas from a well on the land since 1935.\\nIn 1985, REO drilled a well designated Troutman No. 1, seeking oil but finding gas. Paragraphs V and VII of the contract address this situation. Paragraph V ap plies when a joint production test on a gas well shows capacity to produce more than 3,000,000 cubic feet of gas per day, and Paragraph VII applies to gas wells showing an open flow volume of 3,000,000 or less cubic feet per day. Under Paragraph V, the oil operator must offer the gas well to the gas operator at the net cost of the well, and under Paragraph VII the well is to be offered at half its cost.\\nFor our purposes, the significant provisions of Paragraph V are as follows:\\n\\\"[T]he Gas Operator shall have the option to purchase such well, (but it shall not be required to do so).... [SJhould Gas Operator fail within said ten (10) days to notify Oil Operator of its election to so purchase said gas well, then Oil Operator shall own said well and have the right, subject to the limitations herein named, to operate such well . for its own use and benefit. In the event Oil Operator operates such gas well, it shall pay to the lessor, his heirs or assigns, the gas rental or royalty provided for in the lease upon which said well is located.\\\"\\nThe language of Paragraph VII is similar, providing that \\\"[i]f the party entitled to purchase said well\\\" does not, then \\\"the party drilling the well shall own said well and the production therefrom, and shall have the right to operate such well for its own use and benefit....\\\"\\nREO offered the well to NGPL (by letter dated August 6, 1985 and received September 9, 1985). NGPL declined to participate in a joint production test or to purchase the well, stating that \\\"Natural [NGPL] is satisfied with the performance of its existing gas well on the section and, as long as Natural continues to produce its existing gas well, no one can legally operate the referenced well as a gas well under current Railroad Commission regulations.\\\" The Texas Railroad Commission's Rule 38 and the appropriate field rules permit only one gas well on 640 acres, so the well is useless to NGPL (and to REO) unless NGPL plugs its pre-existing well or the Commission grants an exception to the rule. Exceptions to the Railroad Commission's rule are granted only to prevent waste or the confiscation of property.\\nREO made a second offer to perform a joint production test and to sell its well, which was also refused. NGPL continued to operate its gas well. REO applied to the Commission for an exception, which NGPL opposed. The parties' arguments before the Commission focused on ownership of the gas reserves under the operating agreement as well as the questions of waste or confiscation of property. NGPL asserted that the Commission was the wrong forum since it lacked the legal power either to construe the contract or determine title to the gas.\\nPresumably bowing to the Commission's lack of primary jurisdiction, REO withdrew its application from the Commission and sued in state court seeking declaratory judgment and damages for NGPL's alleged interference with its operations in breach of Paragraphs II and XV of the operating agreement.\\nParagraph II provides: \\\"[I]t is further understood that each party shall so conduct its operations and so locate its improvements and equipment on said premises as to interfere as little as possible with operations of the other.\\\" Paragraph XV further states: \\\"Each party agrees . to comply with all state and federal laws and to protect any interest of the other party in such leases against liens or encumbrances caused by its acts or omis-sions_\\\" (Emphasis added.)\\nREO asserted that these provisions obligated NGPL not only to refrain from opposing REO's application to the Commission, but more significantly to either buy REO's well or plug its own well and forfeit all its rights under its gas lease in order to permit REO to operate its well under Rule 38.\\nNGPL moved for summary judgment after removing to federal court, claiming i) REO had not fulfilled conditions precedent imposed by the agreement; ii) NGPL was not obligated to buy the proffered well or plug its own well; iii) NGPL had not breached the agreement by opposing REO's Rule 38 application; iv) NGPL's conduct was not a proximate cause of any damage to REO; and v) REO's claims were not ripe for judicial determination.\\nREO filed cross motion for partial summary judgment on the issues of liability for and causation of damages, claiming i) it had fulfilled the conditions precedent (or they were merely covenants); ii) NGPL was obligated to buy the well; iii) NGPL had interfered, in breach of Paragraphs II and XV of the contract, with REO's contractual right to operate the gas well by opposing REO's application for an exception and failing to plug its own well; and iv) NGPL's conduct proximately caused damages to REO.\\nThe court granted NGPL's motion and dismissed REO's claim, determining that: i) NGPL did not breach the agreement because it did not require NGPL to refrain from opposing REO's application to the Commission and certainly did not impose the Hobson's choice either to buy REO's well or abandon its leasehold rights by plugging its own; ii) REO's claims were not ripe because REO had shown no injury; and iii) even if there was an injury, NGPL's conduct was not the cause of any damages to REO. The trial court denied REO's motion for reconsideration and new trial.\\nNo Title\\nTexas has adopted the theory of ownership of oil and gas in place, beneath the surface of the land. Under Texas law, oil or gas in place, beneath the surface, is part of the realty, and becomes personalty upon production and severance. Generally, a Texas oil or gas lease operates not as an ordinary lease, but as a deed or conveyance of a determinable fee simple estate, investing the lessee with title either to the oil or the gas, or both, in place.\\nIt is undisputed that NGPL is the record title holder of gas rights under an oil and gas lease and thereby owns the gas under the subject acreage. But REO argues that upon NGPL's election not to purchase the well, the Operating Agreement transferred to REO title to all the gas its well \\\"could produce,\\\" with the consequence that NGPL forfeits all its pre-existing, exclusive rights to the gas reserves under the acreage. This ownership by implied transfer is the basis of REO's claim that NGPL interfered with REO's operations, in breach of the agreement, by failing either to refrain from opposing REO's application for an exception to Rule 38 or to plug its own well.\\nREO sought as damages the amount of money it could have earned if NGPL had not interfered with its right to operate the well. REO has not, and cannot, claim that NGPL has converted gas belonging to REO by continuing to produce gas from NGPL's pre-existing well.\\nNonetheless, since the parties have agreed that in this field one well can produce all the gas under the 640 acres, REO essentially contends that by failing to purchase a well it does not need, NGPL has forfeited the entirety of its exclusive rights to gas under its lease on this acreage.\\nSince, despite REO's lamentations, it has to be uncontradicted that no gas \\u2014 whoever owns it \\u2014 can be produced from REO's well without a Rule 38 exception, REO's other claims are of secondary importance to that of the claimed forfeiture of NGPL's exclusive ownership of all the gas in place under the acreage.\\nConstruing a contract under Texas law, the following principles apply: Interpretation of an unambiguous contract is a question of law, and the determination of whether a contract is ambiguous is also a question of law. A contract is not ambiguous merely because the parties have a disagreement on the correct interpretation. A contract is not ambiguous \\\"when it is reasonably open to just one interpretation given the rules of construction and the surrounding circumstances.\\\" Contracts are to be construed in their entirety to give effect to the intent of the parties, considering each provision with reference to the entire contract, so that every clause has some effect and no clause is rendered meaningless. A contract is given its plain grammatical meaning unless that meaning would defeat the intent of the parties. And, of course, the interpretation of the writing should be undertaken \\\"in the light of the circumstances\\\" at the time the contract was executed. Most significantly, Texas courts will not construe a contract to result in a forfeiture unless it cannot be construed in any other way.\\nWe hold that summary judgment was appropriate here because the contract is unambiguous. We agree with the District Court that the correct interpretation of the writing in light of the circumstances giving rise to its confection and to avoid an unnecessary forfeiture is that, although technically REO owns its well and any gas produced by that well, since no gas can be produced without an exception to Railroad Commission Rule 38, REO owns no gas and no economic value has attached to REO's potential, technical right under the contract to gas it may abstractly produce.\\nREO asserts that we are bound by our 1940 decision in Southern Minerals Corp. v. Simmons to hold in its favor.\\nWe are, of course, bound by stare decisis to our legal holdings \\u2014 in Southern a contract interpretation. Thus, we must interpret the same contract in the same manner. But, although the Southern Minerals contract also provided for the results when one operator found the other's product, it differed from the contract we interpret in several significant ways.\\nFirst, the Southern Minerals contract required the drilling party producing the other's product to complete the well and offer it to the other. The operating agreement here permits the operator to complete the well and offer it to the other. Because the oil operator was required to complete the well, the court in Southern said, \\\"A construction which would require the driller to complete the well for the other party to make his choice to take or reject it, and if he rejected it then to plug the well and lose it, would be too unfair to have been in contemplation.\\\"\\nWhile in that case it \\\"would be too unfair to have been in [the] contemplation\\\" of the parties to require a drilling operator to complete a well that was not productive of the product for which it had rights, sinking additional funds and efforts into a well, with no potential benefit if the other chose not to buy, it is not, in this case, \\\"too unfair to have been in [the] contemplation\\\" of the parties to permit the operator to take such a risk in hopes of still making a return on his so-far unsuccessful well. It is, on the other hand, \\\"too unfair to have been in contemplation\\\" for NGPL as gas operator to be expected to purchase an unneeded gas well or forfeit all of its gas rights.\\nSecond, REO points out that in Southern Minerals, the court relied in part on the agreement's \\\"provision that the royalties on gas from a well not taken over\\\" were to be paid by the party drilling the well. \\\"There would be no royalties without production, and the royalties are justly paid by him who owns the production.\\\"\\nParagraph V of the operating agreement at issue here, supra note 5, provides that if an oil operator retains and operates a gas well under the paragraph, it is to pay the gas rental or royalties on its own production. Paragraph XII apportions taxes between the oil operator and the gas operator by providing that the gas operator shall pay all taxes upon the gas rights \\\"excepting such taxes upon gas from and gas rights in particular wells which the Oil Operator under the provisions of this operating agreement may have acquired, which taxes the Oil Operator shall pay if sepa rately assessed or taxed, and, if not, then its fair and equitable apportionment thereof.\\\" (Emphasis added.)\\nREO says that these provisions are meaningless if not interpreted to mean that REO owns all the gas that \\\"could be produced\\\" from its well. But it is not meaningless to interpret the contract to mean that REO is to own all gas actually produced from the well.\\nNo gas can legally be produced from REO's well because of Rule 38, and no royalties on that well's production are payable unless there is production. Thus, REO has never owned any gas and can owe no taxes based on ownership of the gas. The contract provisions are not rendered meaningless by our construction; the circumstances to which they apply simply have not arisen.\\nFurther, the result produced is consistent with Southern and the language used by that court in declaring that the oil drilling party owned all the gas that \\\"would be produced\\\" from an individual well. There the parties were not limited by Railroad Commission proration rules to one gas well. The interpretation of the contract in Southern did not produce a forfeiture of all gas rights of the gas operator, as would be produced here under REO's construction. We do not and cannot find that the parties intended that the failure to exercise the option to pay for REO's gas well would result in NGPL's forfeiture of its exclusive leasehold gas rights.\\nThird, and perhaps most significantly, the opinion in Southern does not reflect that there was any legal impediment to the oil operator's ability to operate a gas well or receive its production. In the case at hand, NGPL cannot have breached the agreement by interfering with rights to produce gas that, because of Rule 38, have never existed. Furthermore, NGPL's actions cannot have caused REO to lose rights that, because of Rule 38, have not come into existence.\\nNo Breach\\nWe reject the contention that NGPL, by opposing REO's Rule 38 exemption petition to the Commission, breached the agreement. The trial court properly held that because the contract itself provides that it is subject to state and federal statutes and regulations (paragraph XX), and the Commission's rules require notice and permit interested parties to appear at a hearing prior to granting such an exception, there is no breach.\\nThe Texas case REO cites for the proposition that one may agree in a contract to refrain from exercising a legal right is not significant here. Unlike the explicit agreement in that case to refrain from exercising specific rights, NGPL's agreement in Paragraphs II and XV of the operating agreement not to interfere with REO's operations cannot reasonably be construed to constitute an agreement to refrain from exercising the right \\u2014 if not the duty to prevent waste \\u2014 granted by the Commission to oppose an exception.\\nWe similarly reject REO's contention that the agreement's Paragraph II and XV non-interference provisions require NGPL to plug its well and forfeit its gas rights. The provisions cannot reasonably be so construed.\\nAlthough it is often said that implied contract provisions are generally not favored by Texas law, they are regularly employed by Texas courts in construing oil and gas leases. \\u2022 Several factors are relevant in allowing a court to imply a covenant: First, it must appear from the ex press terms of the contract that the implied term was so clearly in the contemplation of the parties that they deemed it unnecessary to express it, or the implied term must be indispensable to give effect to the intent of the parties as disclosed by the contract as a whole.\\nNothing in this contract warrants the implication proposed by REO \\u2014 that NGPL must forfeit its gas leasehold rights, plug its well and refrain from opposing REO's application for a Rule 38 exception, in order to avoid interfering with REO's operations.\\nThe trial court properly ignored as inconsequential the factual disputes regarding conditions precedent to NGPL's option to purchase REO's well. On our construction of the contract, this possible factual controversy did not raise a genuine issue of material fact.\\nNo Injury\\nREO complains that the District Court improperly deferred to the Railroad Commission \\\"under the doctrine of primary jurisdiction.\\\" This is not an accurate depiction of the trial court's holding, which did not use the phrase \\\"primary jurisdiction\\\" and in no way deferred to the Railroad Commission. The court did state that the complaint was \\\"not ripe\\\" because without an exception to Rule 38, REO's well had no economic value. Since it had not lost anything of any economic value, REO had not been injured. The court simply decided that REO has lost nothing because it had nothing to lose; it had no gas and could lawfully deliver none.\\nThe doctrine of primary jurisdiction, by contrast, is a doctrine of judicial abstention whereby a court which has jurisdiction over a matter, nonetheless defers to an administrative agency for an initial decision on questions of fact or law within the peculiar competence of the agency.\\nPrimary jurisdiction differs from exhaustion of administrative remedies and ripe ness in that those concepts determine the stage at which a court may review an administrative action. No review of administrative action was sought here; REO had withdrawn its Rule 38 exception application and sought other relief in court.\\nA court, under Texas law, generally should defer under the doctrine of primary jurisdiction to an agency that has jurisdiction over a matter that is before the court. But no question of primary jurisdiction was involved here. REO did not ask the court for resolution of any matter within the Railroad Commission's jurisdiction. Moreover, had it done so, its request would have properly been denied as judicially ineffectual.\\nREO correctly points out that the Railroad Commission does not have jurisdiction over the contractual dispute between REO and NGPL. The Railroad Commission has no authority to determine title to land or property rights. It has no jurisdiction to award damages. And it has no jurisdiction over the interpretation of contracts.\\nThus, the court was empowered to, and did properly decide the contract interpretation, title, and damages issues. .\\nREO's request for damages to compensate it for the loss of the economic value of the well \\u2014 lost potential profits\\u2014 simply goes out on the court's bottom line holding that REO had not yet suffered any cognizable injury, because the well was worthless \\\"until and unless an exception to Rule 38 was obtained\\\" to permit the flow of a single molecule of gas from the well. REO never had any exploitable economic interest in the potential production of the REO gas well even though the contract gives it the right to operate its well subject to pertinent laws and regulations. The operating agreement cannot grant REO the right to operate the well in the sense of authorizing actual production and delivery of the gas. That is controlled by valid Texas statutes and applicable proration regulations of the Railroad Commission. Without a Rule 38 exemption, REO could not produce a molecule of gas.\\nWhat it could not legally do is no basis for a claim for lost profits, because no economic value ever attached to the well. Even if NGPL had not opposed REO's application for a Rule 38 exception and REO had not voluntarily withdrawn the application, there is no probative certainty that the Commission would have approved the exception. In fact, REO concedes that the possibility of an exception is remote. The parties do not contest that one well can drain all of the recoverable gas reserves beneath the acreage. Thus the court properly held that REO has not been injured.\\nNo Causation\\nREO's complaint that the District Court incorrectly decided the issue of causation can easily be disposed of.\\nThe District Court held that even if NGPL's actions breached the contract and even if REO suffered damages, REO's damages were not causally related to the breach. This was so because it was the voluntary withdrawal of its application for a Rule 38 exception that brought about the worthlessness of REO's gas well. Assuming, without deciding, the correctness of this conclusion, there is no probative certainty that the Commission would have approved REO's application for an exemption if NGPL had not opposed the application. Thus there was no clear causal link between NGPL's action and any injury. REO's contentions ignore this lack of a threshold causal link. Thus the court correctly decided that NGPL's actions were not the cause of any injury to REO.\\nNo Case\\nTherefore, because REO has shown no breach of contract, no injury, and no damages caused by NGPL's actions, the District Court is correct.\\nAFFIRMED.\\n. The parties have stipulated to this ownership scheme. Documents in this record, which may be incomplete on the point since ownership of the oil rights is not disputed, suggest that REO owns less than all the oil rights (i.e., only limited farm-out rights; see infra, note 2) or did when this controversy arose.\\nSeparate ownership of the oil rights and gas rights in the same tract of land is common in the Texas Panhandle. This separation of rights is known as \\\"phase severance.\\\" See, e.g., Amarillo Oil Co. v. Energy-Agri Prod., 794 S.W.2d 20, 21 (Tex.1990); Note, Phase Severance of Gas Rights from Oil Rights, 63 Tex.L.Rev. 133, 133\\u2014 37 (1984).\\n. In 1935, Sinclair Prairie Oil Company, the successor to a 1926 oil and gas lease on the subject acreage known as the \\\"Troutman Property,\\\" separated the oil and gas rights by assigning the gas rights under the lease to Texoma Natural Gas Company. The assignment incorporated by reference a 1933 Operating Agreement that had been concluded between the same parties to govern their activities as oil operator and gas operator on other specified properties with severed oil and gas rights. NGPL is the successor to Texoma's gas rights. Maynard Oil Company succeeded to Sinclair's oil and casinghead gas rights.\\nREO drilled the well at issue here pursuant to a November 21, 1984 farm-out lease in which Maynard agreed to assign 25 percent of its interest in its oil rights to REO. On June 5, 1985 Maynard assigned to REO an undivided 25 percent of its interest \\\"INSOFAR AND ONLY INSOFAR as said lease covers rights . in the . well [at issue in this case],\\\" reserving for Maynard an overriding royalty interest. On April 15, 1986, Maynard assigned to REO all its interest in the lease \\\"INSOFAR AND ONLY INSOFAR as said lease covers rights . in [the same] well.\\\" The latter assignment was made effective November 19, 1985, and included rights under any contracts or agreements related to the lease.\\n. Operating agreements such as the one at issue here are designed to anticipate problems that might arise due to the separate ownership. A significant problem can arise when one operator drills but encounters the other's product. Without an agreement, the operator could not produce the other's product and might not be able to recover its drilling costs. To encourage continued development of the lease through drilling and production, avoiding possible termination of the lease or delay rentals or shut-in royalties resulting under standard oil and gas leases in the absence of production, and protecting both operators from such wasteful and harsh results, such agreements provide ways for the unsuccessful operator to recover his drilling costs by selling such a well or producing from it.\\nFor instance, the court in Southern Minerals Corp. v. Simmons, 111 F.2d 333 (5th Cir.), cert. denied, 311 U.S. 688, 61 S.Ct. 66, 85 L.Ed. 445 (1940) wrote, \\\"When [the parties] sought to separate the ownership of oil from gas, instead of leaving the matter in such shape that if one in drilling reached the other's product, he would have to plug the well and lose the drilling cost, the agreement was made that the well should be completed, with a right in the other to pay for it and take it over. Id. at 336. See also, e.g., Guffey v. Stroud, 16 S.W.2d 527 (Tex.Comm'n.App.1929, opinion adopted) (adjudication of rights where oil lessee produced gas and no operating agreement was involved).\\n. A well designated Troutman 1-SP produced from 1935-1963, and was replaced by Troutman R-l-SP, which has been producing since 1963.\\n. Paragraphs V and VII provide:\\n[V] In event the Oil Operator while drilling for oil shall encounter gas and does not elect to continue drilling to a greater depth in search for oil, or drills deeper in search for oil but does not find it, then and in either such event, and if and when the well upon its completion as a gas well shows on joint production test a capacity to produce at a rate of more than three million (3,000,000) cubic feet of gas per day, the Gas Operator shall have the option to purchase such well (but it shall not be required to do so) at the net cost thereof including necessary equipment to the formation from which such gas is being produced, (net cost to include Fifty Dollars ($50.00) per month for overhead and supervision while drilling), except that the Gas Operator shall not be required to reimburse the Oil Operator in an amount greater than the usual and ordinary costs of drilling and equipping such wells in the vicinity. Within twenty (20) days after Oil Operator has completed such a gas well, it shall tender in writing, by registered mail, such well to the Gas Operator; together with an estimated itemized statement of such net cost thereof. After receipt of such tender the Gas Operator shall have ten (10) days, during which time it shall notify Oil Operator of its election to purchase or of its rejection to purchase such well. In event the Gas Operator elects to purchase said gas well, it shall pay to Oil Operator such net cost as above set forth within twenty (20) days from and after receipt of the final itemized statement, including the actual cost in place of any new material or the reasonable cash value of same if second hand. However, should Gas Operator fail within said ten (10) days to notify Oil Operator of its election to so purchase said gas well, then Oil Operator shall own said well and have the right, subject to the limitations herein named, to operate such well (but it shall not be required to do so unless indispensable to prevent cancellation of the lease, and shall not be required to do so in any event if there be no available market for the product) for its own use and benefit. In the event Oil Operator operates such gas well, it shall pay to the lessor, his heirs or assigns, the gas rental or royalty provided for in the lease upon which said well is located.\\n[VII] In the event Oil Operator, in drilling for oil shall bring in a gas well with an open flow volume at the rate of three million (3,000,000) or less cubic feet per day, or the Gas Operator, in drilling for gas, shall encounter oil production in a well of twenty-five (25) barrels, or less, per day on a ten (10) days' consecutive test, and the party drilling such well does not elect to continue drilling deeper in search of its own product, or does so without finding it, then such drilling party shall notify the other party, in writing, within ten (10) days after the end of the production test, and enclose an itemized estimated statement of the cost of drilling such well and information as to its production and formation, whereupon the other party shall have the right and option (but it is not required to do so), at any time within ten (10) days from the receipt of such written notice, to take over such well by paying one-half (I/2) of the cost thereof under the same terms and conditions as set out in Paragraphs IV* and V above, whichever may be applicable thereto. If the party entitled to purchase said well as aforesaid does not desire and elect to take over such well by paying one-half (V2) of the cost thereof, the party drilling the well shall own said well and the production therefrom, and shall have the right to operate such well for its own use and benefit, subject to the limitations herein contained, (but is not required to do so unless indispensable to prevent cancellation of the lease, and shall not be required to do so in any event if there be no available market for the product).\\n(Emphasis added; * Paragraph IV applies to oil wells drilled by the gas producer.)\\n. Tex.Admin.Code, tit. 16, \\u00a7 3.38 (1988 & 1990-91 West Supp.) [hereafter cited as 16 TAC \\u00a7 xx (19xx) ]. The section in effect in 1985 provided: \\\"No well shall be drilled on less, but may be drilled on more, acreage than that required for a standard proration unit as established in the applicable rules for any oil, gas, or geothermal resource field except as provided in this section.\\\" Id. \\u00a7 3.38(a)(1) (1988) (effective January 1, 1976). The current language, id. at \\u00a7 3.38(b)(1) (1990-91 Supp.), is similar: \\\"No well shall be drilled on substandard acreage except as hereinafter provided.\\\"\\nRule 38 is read in conjunction with the applicable field rules. Rule 3 of the Commission's special gas field rules applies to the West Panhandle Field: \\\"[T]he standard proration unit, or acres to be assigned the well for gas allocation purposes, shall be six hundred forty (640) continuous and contiguous acres....\\\" Railroad Commission of Texas, Oil and Gas Division, Oil and Gas Docket No. 108, Special Order No. 10-13,196, Adopting and Promulgating Field Rules to Apply to All Gas Wells Located in the West Sweet and West Sour Areas of the Panhandle Field, Rule 3(a), September 24, 1948. The currently effective language is similar: \\\"[n]o gas proration unit shall contain less than six hundred forty (640) acres.\\\" Railroad Commission of Texas, Oil and Gas Division, Docket No. 10-87,017, Amended Final Order Adopting and Clarifying Rules and Regulations, March 20, 1989.\\n. \\\"The commission, in order to prevent waste or . to prevent the confiscation of property, may grant exceptions to the density provisions....\\\" 16 TAC \\u00a7 3.38(a)(4) (1988) (effective January 1, 1976). The same language appears in the current version of Rule 38 at 16 TAC \\u00a7 3.38(f) (1988 & 1990-91 Supp.).\\n. The motion for partial summary judgment reserved for trial the remaining issues of the amount of damages and attorneys' fees.\\n. Ryan Consol. Petroleum Corp. v. Pickens, 155 Tex. 221, 285 S.W.2d 201 (1955), cert. denied, 351 U.S. 933, 76 S.Ct. 790, 100 L.Ed. 1462 (1956).\\n. Texas Co. v. Daugherty, 107 Tex. 226, 176 S.W. 717 (1915).\\n. Humble Oil & Ref. Co. v. West, 508 S.W.2d 812 (Tex.1974).\\n. W.T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27 (1929).\\n. Technical Consultant Services, Inc. v. Lakewood Pipe, 861 F.2d 1357, 1362 (5th Cir.1988) (citing Myers v. Gulf Coast Minerals Management Corp., 361 S.W.2d 193, 196 (Tex.1962)); Kutka v. Temporaries, Inc., 568 F.Supp. 1527, 1534 (S.D.Tex.1983); Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983).\\n. Deauville Corp. v. Federated Dep't Stores, Inc., 756 F.2d 1183, 1193 (5th Cir.1985) (applying Texas law); Watkins v. Petro-Search, Inc., 689 F.2d 537, 538 (5th Cir.1982) (applying Texas law); Kutka, 568 F.Supp. at 1534; Reilly v. Rangers Management, Inc., 727 S.W.2d 527, 529 (Tex.1987); Coker, 650 S.W.2d at 394.\\n. Sun Oil Co. (Delaware) v. Madeley, 626 S.W.2d 726, 727 (Tex.1981).\\n. Technical Consultant, 861 F.2d at 1362 (applying Texas law); see also, Deauville, 756 F.2d at 1193; Watkins, 689 F.2d at 538; Kutka, 568 F.Supp. at 1534; Reilly, 727 S.W.2d at 529; Coker, 650 S.W.2d at 393-94.\\n. Watkins, 689 F.2d at 538 (citing Sun Oil, 626 S.W.2d at 727-28)); Reilly, 727 S.W.2d at 529; Ideal Lease Serv., Inc. v. Amoco Prod. Co., Inc., 662 S.W.2d 951, 953 (Tex.1983); Coker, 650 S.W.2d at 393.\\n. Deauville, 756 F.2d at 1193; Coker, 650 S.W.2d at 393.\\n. Reilly, 727 S.W.2d at 529.\\n. Technical Consultant, 861 F.2d at 1362; Deauville, 756 F.2d at 1193; Watkins, 689 F.2d at 538; Reilly, 727 S.W.2d at 529; Coker, 650 S.W.2d at 394.\\n. Reilly, 727 S.W.2d at 530; Henshaw v. Texas Natural Resources Foundation, 147 Tex. 436, 216 S.W.2d 566, 570 (1949).\\n. 111 F.2d 333 (5th Cir.), cert. denied, 311 U.S. 688, 61 S.Ct. 66, 85 L.Ed. 445 (1940).\\n. Id. at 336-37 (emphasis added).\\n. Id. at 336 (emphasis added).\\n. 16 TAC \\u00a7 3.38(a)(4) (1988) (effective January 1, 1976); Id. \\u00a7 3.38(f) (1988 & 1990-91 Supp.).\\n. Id. \\u00a7 1.24 (1988) (effective January 1, 1976).\\n. Kennard v. McCray, 648 S.W.2d 743, 745 (Tex.Ct.App.1983).\\n. Atlantic Richfield Co. v. Exxon Corp., 663 S.W.2d 858, 870 (Tex.Ct.App.1983), rev'd on other grounds, 678 S.W.2d 944 (Tex.1984); Emmord's, Inc. v. Obermiller, 526 S.W.2d 562, 565 (Tex.Civ.App.1975).\\n.Certain specific implied covenants are recognized by Texas courts construing oil and gas leases. They are: \\\"(1) to develop the premises, (2) to protect the leasehold, and (3) to manage and administer the lease.\\\" Amoco Prod. Co. v. Alexander, 622 S.W.2d 563, 567 (Tex.1981) (oil company owed its lessor a duty to seek administrative relief).\\nCf. Sun Exploration and Production Co. v. Jackson, 31 Tex.Sup.Ct.J. 604, 1988 WL 220582 (July 13, 1988) (implied covenant of further exploration of leased premises after securing production), withdrawn on motion for rehearing, 783 S.W.2d 202 (Tex.1989) (no implied covenant of further exploration exists independent of implied covenant of reasonable development); Cabot Corp. v. Brown, 754 S.W.2d 104, 106 (Tex.1987) (implied duty to \\\"obtain the best price reasonably possible,\\\" rather than a fair or reasonable price); Texas Oil and Gas Corp. v. Hagen, 31 Tex.Sup.Ct.J. 140, 1987 WL 47847 (Dec. 15, 1987) (oil and gas lease imposes duty upon lessee to act as a reasonably prudent operator, but not a duty to act with \\\"highest good faith\\\" in marketing lessor's gas), opinion withdrawn [pursuant to parties' settlement agreement], 760 S.W.2d 960 (Tex.1988).\\nAlthough the precise limits of these covenants may be uncertain, their purpose is to give effect to the intent of the parties in creating an oil and gas lease. The provisions REO contends should be implied are not of this nature.\\n. Fuller v. Phillips Petroleum Co., 872 F.2d 655, 658 (5th Cir.1989); Kutka v. Temporaries, Inc., 568 F.Supp. 1527, 1535-36 (S.D.Tex.1983); Danciger Oil & Ref. Co. v. Powell, 137 Tex. 484, 154 S.W.2d 632, 635 (1941); Grimes v. Walsh & Watts, Inc., 649 S.W.2d 724, 727 (Tex.Ct.App.1983); Stalcup v. Eastham, 330 S.W.2d 237, 240 (Tex.Civ.App.1959).\\n. See, e.g., Television Cable Service, Inc. v. Bryant, 684 S.W.2d 196, 198-99 (Tex.Ct.App.1984) (for discussion of primary jurisdiction as applied under Texas law).\\nFor Federal purposes, the doctrine of primary jurisdiction is healthy and frequently used. See, e.g., Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U.S. 411, 79 S.Ct. 1210, 3 L.Ed.2d 1334 (1959) (affirming primary jurisdiction reference to ICC of tariff matter within agency's competence, 253 F.2d 922 (5th Cir.1958)); Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907) (even though action existed at common law and statute authorized suit in federal district court or complaint before ICC, plaintiff must invoke redress through ICC which had power to alter unreasonable rates in established schedules); Huber Corp. v. Denman, 367 F.2d 104, 111-12, 120-21 (5th Cir.1966) (directing reference, under doctrine of primary jurisdiction, to FPC to determine question of its own jurisdiction over matter arguably within jurisdiction of the commission); Weymouth v. Colorado Interstate Gas Co., 367 F.2d 84, 101-03 (5th Cir.1966) (companion case to Huber, same); Carter v. American Tel. & Tel. Co., 365 F.2d 486 (5th Cir.1966) (affirming primary jurisdiction reference to FCC of tariff validity in private antitrust action), cert. denied, 385 U.S. 1008, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967); Mobil Oil Corp. v. FPC, 463 F.2d 256, 265-66 (D.C.Cir.1971) (on review of FPC orders following primary jurisdiction reference in Huber, reversing FPC's orders and approving court reference to commission under \\\"broad and supple doctrine of primary jurisdiction\\\"), cert1 denied sub nom Mobil Oil Corp. v. Matzen, 406 U.S. 976, 92 S.Ct. 2409, 32 L.Ed.2d 676 (1972); Annotation, The Doctrine of Primary Jurisdiction as Defined and Applied by the Supreme Court, 38 L.Ed.2d 796.\\n. Television Cable Service, 684 S.W.2d at 198-99 (quoting D & S Investments, Inc. v. Mouer, 521 S.W.2d 118 (Tex.Civ.App.1975), citing Davis, Administrative Law Doctrines, 28 Tex.L.Rev. 376, 400 (1950)); see also, U.S. v. Western Pac. R.R. Co., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956).\\n. Penny v. Southwestern Bell Tel. Co., 906 F.2d 183, 187 (5th Cir.1990) (applying Texas law); Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411, 413 (1961); Television Cable Service, 684 S.W.2d at 199.\\n. Amarillo Oil Co. v. Energy-Agri Products, Inc., 794 S.W.2d 20, 26 (Tex.1990) (title to gas); Railroad Comm 'n v. City of Austin, 524 S.W.2d 262, 268 (Tex.1975) (title to gas); Jones v. Killingsworth, 403 S.W.2d 325, 328 (Tex.1965).\\n. Foree v. Crown Cent. Petroleum Corp., 431 S.W.2d 312, 316 (Tex.1968).\\n. Biskamp v. General Crude Oil Co., 452 S.W.2d 515, 517 (Tex.Civ.App.1970).\\n. Tex.Nat.Res.Code Ann. \\u00a7 81.051 (Vernon 1978).\\n. Texas law denies recovery of potential profits where damages are uncertain or speculative. Southwest Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1099 (1938). Furthermore, because REO has alleged only a hypothetical injury, there may be no \\\"case or controversy,\\\" and it is highly doubtful that REO has standing to sue for such damages in federal court. Mideast Sys. and China Civil Constr. Saipan Joint Venture, Inc. v. Hodel, 792 F.2d 1172, 1176 (D.C.Cir.1986).\\n. The party complaining of a breach of contract carries the burden of proving that he suffered pecuniary loss as a result of the breach. Copenhaver v. Berryman, 602 S.W.2d 540, 543 (Tex.Civ.App.1980).\"}"

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+"{\"id\": \"10602739\", \"name\": \"TEAMSTERS LOCAL UNION 769, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, Helpers of America, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Peoples Gas System, Inc., Intervenor\", \"name_abbreviation\": \"Teamsters Local Union 769 v. National Labor Relations Board\", \"decision_date\": \"1976-04-08\", \"docket_number\": \"No. 75-1250\", \"first_page\": \"1385\", \"last_page\": \"1397\", \"citations\": \"532 F.2d 1385\", \"volume\": \"532\", \"reporter\": \"Federal Reporter 2d Series\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T17:56:06.985894+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BAZELON, Chief Judge, TAMM, Circuit Judge and JUSTICE, United States District Judge for the Eastern District of Texas.\", \"parties\": \"TEAMSTERS LOCAL UNION 769, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, Helpers of America, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Peoples Gas System, Inc., Intervenor.\", \"head_matter\": \"TEAMSTERS LOCAL UNION 769, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, Helpers of America, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Peoples Gas System, Inc., Intervenor.\\nNo. 75-1250.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nArgued Jan. 13, 1976.\\nDecided April 8, 1976.\\nRehearing Denied May 13, 1976.\\nSeymour A. Gopman, North Miami Beach, Fla., for petitioner. William T. Coleman, Jr., Miami, Fla., was on the brief for petitioner.\\nElliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., with whom John C. Miller, Acting Gen. Counsel and John S. Irving, Jr., Deputy Gen. Counsel, N. L. R. B., Washington, D. C., were on the brief for respondent.\\nJesse S. Hogg, Coral Gables, Fla., with whom W. Reynolds Allen, Coral Gables, Fla., was on the brief for intervenor.\\nBefore BAZELON, Chief Judge, TAMM, Circuit Judge and JUSTICE, United States District Judge for the Eastern District of Texas.\\nSitting by designation pursuant to 28 U.S.C. \\u00a7 292(d).\", \"word_count\": \"4286\", \"char_count\": \"26207\", \"text\": \"Opinion for the court by Chief Judge BAZELON.\\nCircuit Judge TAMM dissents from the opinion.\\nBAZELON, Chief Judge:\\nIn September, 1966 Teamsters Local Union 769, the petitioner, was certified by the NLRB as the exclusive bargaining representative of the production, maintenance and distribution employees of Peoples Gas System Inc.'s Miami operations. The Union and employer signed a three-year contract in 1967 and, after a strike in February, 1970, signed a second three-year contract that expired on February 6,1978. Negotiations on a third contract began on January 9, 1973. After six bargaining sessions and several communications by phone and letter, the Company, on April 23, 1973, filed a representation election petition with the Board and thereafter refused to bargain further with the Union.\\nOn May 15, 1973, the Union filed an unfair labor practice charge with the Board, alleging that the employer's refusal to bargain violated \\u00a7 8(a)(5) of the National Labor Relations Act, 29 U.S.C. \\u00a7 158(a)(5). The General Counsel issued a complaint, and after conducting hearings, the Administrative Law Judge found the Company guilty of an unfair labor practice. His decision was reversed by a three-member panel of the Board. After the Union's petition for reconsideration was denied, the Union filed this appeal.\\nI\\nA threshold question has been raised by the Intervenor-Employer in a motion to dismiss the appeal as moot. In support of this motion Intervenor notes that the record, as supplemented by order of this court in response to an earlier motion by Intervenor, reveals that on the day after its motion for reconsideration was denied, the Union filed a petition for certification of representative with the Board. An election was held on May 30, 1975, which the Union lost by roughly a 3-2 margin. No objections to the election were filed, and on June 10, 1975, the results were certified. Intervenor contends that even if its refusal to bargain were unlawful, the likelihood of repetition is now almost nil, since there currently is no bargaining representative for the unit. In-tervenor therefore urges this court to exercise its discretion to decline to adjudicate this case.\\nImplicit in Intervenor's argument is the assumption that even if the Union were to prevail on the merits, the only appropri ate remedy after the Union's election defeat would be a cease and desist order aimed against future refusals to bargain. If all that were at issue were the possible issuance of a cease and desist order, Inter-venor's argument might be persuasive. But we agree with the position taken by counsel for the Board that the Board's remedial powers are not so limited. At least at this stage of the proceedings, we are not prepared to say that were the Board's decision to be reversed, the Board would be powerless to mandate a new election or even to issue a bargaining order. To be sure, the Board's practice has been not to issue a bargaining order on the basis of pre-election refusals to bargain if a union thereafter loses an election and the results are certified. Nor has the Board entertained challenges to elections based on conduct occurring before the election petitions were filed. But these rules were developed to prevent parties from bypassing the Board, seeking an election, and then, if unsuccessful in a fair election, seeking relief from the Board. Intervenor concedes that this appears to be the first case in which an election was requested and held only after all Board remedies had been exhausted and solely as a means of \\\"bypassing\\\" the courts \\u2014 that is, of avoiding the delay attendant upon appellate review. We do not believe the Board would lack the power \\u2014 and will not speculate as to whether it would have the will \\u2014 to create an exception to its rules in this case. Accordingly, we reach the merits of the petition for review.\\nII\\nThe Board's decision begins with a statement of the well-established principle applicable to withdrawals of recognition from incumbent unions:\\nAfter the certification year has run, an employer may lawfully withdraw recognition from an incumbent union because of an asserted doubt of the union's continued majority, if its withdrawal occurs in a context free of unfair labor practices and is supported by a showing of objective considerations providing reasonable grounds for a belief that a majority of the employees no longer desire union representation. infringement and thereafter had no test failures after the pile was formed.\\nThis formulation is in general conformity with our requirement that serious doubt of the Union's majority be shown, and essen tially is not contested on this appeal. What is at issue here is whether there was a sufficient objective basis to give rise to such a doubt.\\nThe Board relied on a combination of three factors to find an objective basis for a reasonable doubt. First, it noted that from February, 1970, immediately before a strike, to April, 1973, there was a \\\"severe and dramatic\\\" decline in the number of dues-checkoff authorization cards on file with the Company. In 1970, 76% of all members of the unit, and 90% of all non-probationary members\\u2014persons who had been employed for over 90 days and under company policy were eligible for checkoff\\u2014 had submitted authorizations; in 1973 the comparable figures were 39% and 51%.\\nSecond, the Board discussed what it termed \\\"a sudden and unexplained change in bargaining posture under circumstances strongly suggestive of a lack of confidence by the Union itself as to the degree of support it had maintained.\\\" Specifically the Board noted that the Union, after having insisted throughout the 1973 negotiations that it would strike if no agreement had been reached when the old contract expired, announced on February 2, four days before the expiration date, that the bargaining committee would submit the employer's final but incomplete offer to the membership, but would recommend rejection; that on February 5th the bargaining committee reversed itself and recommended acceptance of the offer; and that after a series of communications, concerning what agreement, if any, had been reached, the Union, on April 11, 1973 and again several times after the Company withdrew recognition, announced its willingness to sign whatever agreement the Company drafted, subject to the Union's right to proceed through the Board to vindicate its claim that agreement already had been reached on certain issues.\\nThird, the Board noted substantial changes in the composition of the unit since 1970. During the strike, 40% of the work force had been permanently replaced. In September, 1972, the size of the unit increased 17% by the addition of previously non-unionized employees acquired in a merger with a competitor; none of those employees had submitted checkoff authorization cards as of April, 1973 despite an organizational effort beginning in January, 1973. And from September, 1972 to April, 1973, the unit experienced a 36% turnover.\\nRelying on \\\"the totality of these circumstances,\\\" the Board found that the employer had an objective basis for doubting the Union's continuing majority.\\nIll\\nPetitioner contends that the employer could not reasonably have doubted the Union's majority when a majority of the eligible employees had submitted checkoff authorizations. Insofar as petitioner argues for a per se prohibition on employers ever withdrawing recognition from an incumbent union under these circumstances, we cannot agree. Just as an employee's decision not to submit an authorization card does not necessarily mean he opposes the union, so, too, a decision to submit a card\\u2014or not to withdraw an already submitted card\\u2014does not necessarily mean the employee supports the union. Decisions to submit or not withdraw authorizations may be attributable to confusion, ignorance, peer pressure, and, in cases of failure to withdraw, to procrastination or inertia. For these reasons, the Board has more than once upheld an employer's refusal to bargain with an incumbent union even though a majority of the employees had submitted checkoff authorizations. In an appropriate case, we would agree.\\nBut insofar as petitioner is contending that the employer bears a heavy burden in this case, petitioner is clearly correct. The Union can claim the benefit of two well-established presumptions (in addition to the general presumption that an incumbent union has a continuing majority): (1) that all the employees on checkoff \\u2014 51% of the nonprobationary employees \\u2014 supported the Union as their bargaining representative; and (2) that the same proportion of new or probationary employees \\u2014 51%\\u2014also supported the Union. In light of these presumptions, the employer could reasonably doubt the Union's continuing majority if, but only if, there were an objective basis for believing either that (a) the checkoff cards overstated the Union's support among the nonprobationary employees, or (b) a lesser percentage of the probationary employees supported the Union such that the Union lacked a majority of the total unit. In finding an objectively based reasonable doubt, however, the Board's opinion fails to focus on these narrow issues; indeed, the opinion does not appear to attach any significance to the fact that a majority of the eligible employees were on checkoff. Consequently, we are left at large to speculate as to the relevance of the factors on which the Board did rely.\\nOur difficulty becomes clear when those factors are separately analyzed. The Board first considered the decline in the employees on checkoff. The courts and the Board have recognized the relevance of this consideration when less than a majority of the employees were on checkoff. In those cases the trend of checkoffs strengthened the inference that the low number of checkoff cards reflected a lack of union support. Here, however, the significance of the trend is unclear. Does the decline indicate that persons still on checkoff actually may not support the Union? Does it indicate that persons not yet eligible for checkoff do not support the Union? We do not mean to suggest that the Board could not answer either or both of these questions in the affirmative. The point is that the Board has not provided us with a reasoned basis for doing so.\\nMuch the same is true when the Board's second factor, changes in composition of the unit, is considered. Again, this factor has been considered relevant in other cases, generally when used to impeach the contin uing vitality of an earlier showing of support such as an election. But here the issue is not the significance of some past showing of support, but of a present showing. Thus, the relevance of turnover prior to the present showing of support is attenuated.\\nThe changes in composition on which the Board relied can be divided into two types. First is the 40% turnover occurring after the 1970 strike, and the 17% accretion resulting from the 1972 merger \\u2014 changes \\\"under circumstances suggesting a lesser degree\\\" of Union support. But all the persons added as a result of these two events already were, if they were still employed by the Company, nonprobationary employees at the time recognition was withdrawn. Thus, they already were counted as part of the 51% on checkoff or the 49% off. Perhaps the Board intended to conclude that the circumstances under which these employees were added suggests that even those who submitted authorization cards might not have been Union supporters, so that the 51% figure is misleading. Or perhaps the Board thought these circumstances were relevant to the issue of Union support among new employees. But again the Board failed to articulate its reasons for so concluding.\\nThe second aspect of the change in composition was the 36% turnover from September, 1972 to April, 1973 \\u2014 turnover under \\\"neutral\\\" circumstances. The relevance of this turnover is even less clear. Precisely because the circumstances surrounding the turnover were neutral, the high rate\\u2014 projected to 61% annually \\u2014 does not appear relevant to establishing doubt as to whether the probationary employees desired to be represented by the Union.\\nThe final factor considered by the Board \\u2014 the Union's \\\"strange\\\" behavior during negotiations \\u2014 is directly relevant to impeaching the significance of the number of employees on checkoff. But the Board's opinion does not indicate whether it regarded the bargaining events as alone sufficient to support its decisions, yet, as already noted, the Board failed to explain the relevance of the other factors. Accordingly, we return the case to the Board for reconsideration and rearticulation of its decision.\\nIV\\nWe briefly consider several additional claims of error raised by petitioner, in the hope of shortcircuiting any future litigation after the proceedings on remand. In so doing, we do not decide whether these grounds, either separately or together, would provide an independent basis for reversing the Board.\\n1. Much of the evidence concerning changes in composition of the unit and the decline in checkoff authorizations was not based on the first-hand knowledge of the witness who supplied it, the counsel to the Company, but on what he was told by personnel in the Company's payroll department. Although petitioner did not object to every hearsay statement, and stipulated to much of the evidence concerning the trend in checkoffs, the hearsay objection was repeatedly advanced. The Administrative Law Judge's ruling is not entirely clear, but it appears that he admitted the testimony solely to establish the Company's motivation for withdrawing recognition, and not to prove an objective basis for action The ALJ's opinion clearly assigns little weight to the hearsay testimony The Board, however, treated the testimony as fully probative evidence. Petitioner argues that the Board erred in so doing.\\nThat the Board has some discretion to admit evidence that would be inadmissible in a court of law cannot be denied. Nor can its power to overrule an ALJ's ruling on evidentiary issues be questioned. But the Board at least should address the evidentiary questions, and articulate its reasons for reversing the ALJ. \\u2022 In this case the Board failed to do so.\\n2. Petitioner points to a number of areas in which it alleges the Board decision is inconsistent with prior or subsequent Board decisions. The Board cannot be expected, on pain of reversal, to anticipate and distinguish every marginally relevant case that a litigant might uncover in preparing a petition for review. But the Rule of Law requires that agencies apply the same basic standard of conduct to all parties appearing before them. Thus, \\\"if an agency glosses over or swerves from prior precedents without discussion it may cross the line from the tolerably terse to the intolerably mute.\\\"\\nSome of the cases to which petitioner points are so palpably distinguishable that there was no need for the Board to address them. But in at least two re spects, petitioner's argument has some merit. First, in drawing an inference from the decision of the employees added by merger not to submit checkoff cards, the Board appears to have ignored its decisions holding that such a decision does not mean the employees oppose representation by the Union. Second, the Board recited events that occurred after the employer withdrew recognition from the Union, suggesting that it was relying on such events in contravention of several Board decisions. We do not mean to imply that the Board necessarily was precluded from relying on these facts. It was, however, required to justify its decision to do so.\\nReversed.\\n. NLRB v. Typographical Local 101, 152 U.S.App.D.C. 365, 470 F.2d 1274 (1972).\\n. See NLRB v. Raytheon Co., 398 U.S. 25, 27, 90 S.Ct. 1547, 1548, 26 L.Ed.2d 21, 24 (1970).\\n. See, e. g., Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 405, 13 L.Ed.2d 233, 241 (1964); 29 U.S.C. \\u00a7 160(c) (1970).\\n. Irving Air Chute, 149 NLRB 627 (1964), enforced, 350 F.2d 176 (2d Cir.1965); see Retail Clerks Local 1401 v. NLRB, 149 U.S.App.D.C. 370, 463 F.2d 316 (1972). See also Bernel Foam Products, 146 NLRB 1277 (1964).\\n. Goodyear Tire & Rubber Co., 138 NLRB 453 (1962); Ideal Electric & Manufacturing Co., 134 NLRB 1275 (1961).\\n. Peoples Gas System, Inc., 214 NLRB No. 141 at 2 (1974).\\n. See, e. g., Industrial Wrkrs. Local 289 v. NLRB, 155 U.S.App.D.C. 112, 476 F.2d 868, 881 (1973) and Machinists Lodges 1746 and 743 v. NLRB, 135 U.S.App.D.C. 53, 416 F.2d 809, 812 (1969), cert. denied, 396 U.S. 1058, 90 S.Ct. 751, 24 L.Ed.2d 752 (1970), quoting Stoner Rubber Co., 123 NLRB 1440, 1445 (1959).\\n.See Bartenders, Hotel, Motel & Restaurant Employers Bargaining Ass'n, 213 NLRB No. 74 at 9 (1974) (equating \\\"reasonable doubt\\\" and \\\"serious doubt\\\"). Compare cases cited note 7 supra with Dallas Drivers Local 745 v. NLRB, 163 U.S.App.D.C. 100, 500 F.2d 768, 770 (1974), and Retail Union v. NLRB, 151 U.S.App.D.C. 209, 466 F.2d 380, 393 (1972) (both employing a \\\"reasonable doubt\\\" test).\\nThis court, along with other circuits, see, e. g., NLRB v. Washington Manor Inc., 519 F.2d 750, 751 (6th Cir.1975); Retired Persons Pharmacy v. NLRB, 519 F.2d 486, 489 (2d Cir.1975); Orion Corp. v. NLRB, 515 F.2d 81 (7th Cir. 1975), and the Board, see, e. g., Guerdon Industries, 218 NLRB No. 69 (1975); Celanese Corp., 95 NLRB 664 (1951), has repeatedly held that to be a defense, a \\\"reasonable\\\" or \\\"serious\\\" doubt requires both objective facts to support it and good faith in asserting it. Here, however, the Board did not discuss the employer's motivation in withdrawing recognition from the Union. Petitioner does not contend, however, that the Board deviated from its prior decisions in this regard.\\n. During all times relevant to this case, Florida was a right to work state.\\n. Intervenor contends that the ALJ and the Board erred in including two employees as being on checkoff, and that without these employees the relevant percentage would be under 50%. We cannot say, however, that the Board's factual finding is without substantial support in the record.\\n. The Board also stated that from 1970 to 1973 the turnover rate was 36%. That statement does not appear to be supported by anything in the record.\\n. See, e. g., Terrell Machine Co. v. NLRB, 427 F.2d 1088 (4th Cir.), cert. denied, 398 U.S. 929, 90 S.Ct. 1821, 26 L.Ed.2d 91 (1970); NLRB v. Gulfmont Hotel Co., 362 F.2d 588 (5th Cir. 1966); Harpeth Steel Inc., 208 NLRB 545 (1974); Barrington Plaza & Tragniew, Inc., 188 NLRB 962 (1970), enforcement denied in part, 470 F.2d 669 (9th Cir.1972).\\n. This is especially true where, as here, the authorization cards, by their terms, are revocable for only a ten day period each year.\\n. Mitchell Standard Corp., 140 NLRB 496 (1963); Randall Co., 133 NLRB 289 (1961).\\n. See, e.g., Machinists Lodges 1746 & 743, supra note 7, at 812 n.8; NLRB v. Howe Scale Co., 311 F.2d 502, 505 (7th Cir.1963); NLRB v. Auto Ventshade, Inc., 276 F.2d 303, 307 (5th Cir.1960); United Supermarkets, Inc., 214 NLRB No. 142 at 3 (1974); Mitchell Standard Corp., supra note 14, at 500.\\n. See, e.g., Strange & Lindsey Beverages, Inc., 219 NLRB No. 190 (1975); Laystrom Manufacturing Co., 151 NLRB 1482 (1965), enforcement denied, 359 F.2d 799 (7th Cir.1966). See also, e.g., NLRB v. King Radio Corp., 510 F.2d 1154, 1156 (10th Cir.), cert. denied, 423 U.S. 839, 96 S.Ct. 68, 46 L.Ed.2d 58 (1975); Dallas Drivers Local 745 v. NLRB, supra note 8, at 771.\\n. National Cash Register Co. v. NLRB, 494 F.2d 189, 194-95 (8th Cir.1974); Ingress-Plastene, Inc. v. NLRB, 430 F.2d 542, 546-47 (7th Cir.1970); NLRB v. H. P. Wasson & Co., 422 F.2d 558, 561 (7th Cir.1970); Convair Division, 169 NLRB 131 (1965). See also Machinists Lodges 1746 & 743 v. NLRB, supra note 7, at 812 (relying on decline in checkoff cards but not specifying percentage on checkoff).\\n. Although unstated, the justification appears to be that since the reasons why union supporters would not submit authorization cards remain constant over time, a sharp decrease in the number of cards suggests a decrease in union support (and not an increase in the number of supporters not on checkoff).\\n. See e.g., Taft Broadcasting, 201 NLRB 801 (1973); Lloyd McKee Motors Inc., 170 NLRB 1278 (1968); Stoner Rubber Co., 123 NLRB 1440 (1959). But see, e.g., cases cited note 16 supra.\\n. Petitioner has not questioned whether the Board's assumption that replacements for strikers are less likely to support a union than strikers can be reconciled with decisions such as Industrial Wrkrs. Local 289 v. NLRB, supra note 7, at 881, James Whitfield Inc., 220 NLRB No. 64 (1975), or King Radio Corp., 208 NLRB 578 (1974), enforced, 510 F.2d 1154 (10th Cir. 1975), all holding that strikebreakers are not presumptively anti-union.\\n. In its brief, the Board fails to recognize this fact, and thus uses turnover in 1970 and in September of 1972 to support an inference that the new employees \\u2014 those hired after January, 1973 \\u2014 did not support the Union in the same ratio as the nonprobationary employees. Brief at 15 & n. 12.\\n. It would seem that, if anything, the new employees should more strongly support the Union than the old employees, since the new employees were not hired under circumstances suggesting a lesser degree of Union support.\\n. See, e.g., SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943); Sheet Metal Local 223 v. NLRB, 162 U.S.App.D.C. 145, 498 F.2d 687 (1974); UAW v. NLRB, 136 U.S.App.D.C. 104, 419 F.2d 686 (1969).\\n. It is unclear whether counsel's testimony regarding turnover after the 1970 strike was based on first hand knowledge. See Tr. at 170. The remainder of his statistical testimony admittedly was hearsay.\\n. See Tr. at 167 (stipulated that 90% of non-probationary employees on checkoff in 1970); Jt. Exhibit 1 (listing of all nonprobationary employees as of April 23, 1973 with indication of which were on checkoff).\\n. See Tr. at 170, 195-96, 197-98.\\n. Compare Tr. at 195, 196 (testimony admissible only to prove good faith) with id. at 198 (if documents were given to General Counsel, \\\"you can't contradict it unless it's not a fact, and if you think it's significant, present the testimony\\\").\\n. Tr. at 195, 196; cf. Schwarzenbach-Huber Co. v. NLRB, 408 F.2d 236 (2d Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 436, 24 L.Ed.2d 425 (1969).\\n. Peoples Gas System, Inc., supra note 6, at 17 (\\\"asserted replacement of 40 percent of the strikers\\\"), 21 (\\\"no probative evidence . to substantiate these figures\\\" concerning checkoff cards), 24 (\\\"unsubstantiated\\\" evidence regarding turnover \\\"a weak reed . to sustain a reasonable doubt\\\").\\n. 29 U.S.C. \\u00a7 160(b) (1970) states that \\\"so far as practicable,\\\" Board hearings \\\"[shall] be conducted in accordance with the rules of evidence . .\\\" The courts have read this section liberally. See, e.g., NLRB v. Addison Shoe Corp., 450 F.2d 115 (8th Cir.1971); NLRB v. Capitol Fish Co., 294 F.2d 868 (5th Cir.1961); NLRB v. W. B. Jones Lumber Co., 245 F.2d 388 (9th Cir. 1957); NLRB v. Hod Carriers Local 210, 228 F.2d 589 (2d Cir.1955).\\n. Cf. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Local 4-243, Oil Wrkrs. v. NLRB, 124 U.S.App. D.C. 113, 362 F.2d 943 (1966).\\n. See, e.g., Local 4-243, supra note 31, at 946; F. W. Means & Co. v. NLRB, 377 F.2d 683 (7th Cir. 1967). See also cases cited note 23 supra.\\n. Greater Boston TV Corp. v. FCC, 143 U.S. App.D.C. 383, 444 F.2d 841, 852 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 2233, 29 L.Ed.2d 701 (1971); see, e.g., Teamsters Local 814 v. NLRB, 167 U.S.App.D.C. 387, 512 F.2d 564, 567 (1975); id., at 571-72 & cases cited n.15 (Bazelon, C. J., dissenting in part).\\n. For example, petitioner complains that in considering its \\\"strange\\\" bargaining behavior, the Board ignored Kentucky News, 165 NLRB 777 (1967), holding that the failure to implement a strike threat was \\\"no basis for the conclusion . . . [of] lack of employee support.\\\" But there the Union's decision not to strike was an isolated event whereas here the Board considered the decision in the context of a series of events culminating in what the Board regarded as \\\"capitulation\\\" by the Union. Similarly, petitioner contends that Barrington Plaza & Tragniew, supra note 12, precluded the Board from considering the turnover after the 1970 strike because it was too remote in time. But Tragniew, by its terms, is limited to cases in which an employer defends against an 8(a)(5) charge by contending that at the time of a prior contract the union lacked majority support.\\n. See cases cited note 12 supra.\\n. See, e.g., Bartenders, Hotel, Motel & Restaurant Employers Bargaining Ass'n, supra note 8; Orion Corp., 210 NLRB 633 (1974), enforced, 515 F.2d 81 (7th Cir.1975).\\n.We do not consider intervenor-employer's contentions that the ALJ improperly excluded some of its evidence establishing an objective basis for the employer's doubt. .On remand the Board can reopen the hearings to consider this evidence if it finds the evidence already in the record insufficient to support the employer's claim, and further finds that the ALJ erred in excluding the additional evidence.\"}"

us/11327518.json

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+"{\"id\": \"11327518\", \"name\": \"Grogan v. United States\", \"name_abbreviation\": \"Grogan v. United States\", \"decision_date\": \"1968-10-14\", \"docket_number\": \"No. 142\", \"first_page\": \"830\", \"last_page\": \"830\", \"citations\": \"393 U.S. 830\", \"volume\": \"393\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T18:30:27.733487+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Grogan v. United States.\", \"head_matter\": \"No. 142.\\nGrogan v. United States.\\nHubert Humphrey for petitioner.\\nSolicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Sidney M. Glazer for the United States.\", \"word_count\": \"33\", \"char_count\": \"227\", \"text\": \"C. A. 5th Cir. Certiorari denied.\"}"

us/11501661.json

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+"{\"id\": \"11501661\", \"name\": \"Cinsa, S.A. de C.V., plaintiff v. United States, defendant and General Housewares Corp., defendant-intervenor\", \"name_abbreviation\": \"Cinsa, S.A. de C.V. v. United States\", \"decision_date\": \"1997-04-04\", \"docket_number\": \"Court No. 93-09-00538\", \"first_page\": \"341\", \"last_page\": \"352\", \"citations\": \"21 Ct. Int'l Trade 341\", \"volume\": \"21\", \"reporter\": \"United States Court of International Trade Reports\", \"court\": \"United States Court of International Trade\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T17:28:51.234881+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Cinsa, S.A. de C.V., plaintiff v. United States, defendant and General Housewares Corp., defendant-intervenor\", \"head_matter\": \"966 F. Supp. 1230\\nCinsa, S.A. de C.V., plaintiff v. United States, defendant and General Housewares Corp., defendant-intervenor\\nCourt No. 93-09-00538\\n(Dated April 4, 1997)\\nManat\\u00ed, Phelps & Phillips (Irwin P. Altschuler, David R. Amerine and Ronald M. Wisla) for plaintiff.\\nFrank W. Hunger, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, (VeltaMelnbrencis) for defendant.\\nKing & Spalding (Joseph W. Dorn and Gregory C. Dorris) for defendant-intervenor.\", \"word_count\": \"5160\", \"char_count\": \"33289\", \"text\": \"Opinion\\nMusgrave, Judge:\\nPlaintiff Cinsa, S.A. de C.V. (\\\"Cinsa\\\") brings this action to contest the final results of the fourth administrative review of the antidumping duty order Porcelain-on-Steel Cooking Ware from Mexico; Final Results of Antidumping Duty Administrative Review, 58 Fed. Reg. 43,327 (1993). In the final results, the U.S. Department of Commerce (\\\"Commerce\\\") determined that Cinsa would be assessed a 8.18% dumping margin. Pursuant to 19 U.S.C. \\u00a7 1516a(a)(2)(A)(ii) (1994) Cin-sa appealed the final results and requested that this Court reverse the final results and remand the action with respect to: (1) calculation of the cost of production (\\\"COP\\\") and constructed value (\\\"CV\\\") using historical rather than revalued depreciation; (2) calculation of COP and CV ex- eluding employee profit sharing expense; (3) calculation of CV using Cinsa's arm's length purchase prices to value enamel frit raw material costs; and (4) calculation of COP and CV using all verified interest income. The Court has jurisdiction over this matter pursuant to 19 U.S.C. \\u00a7 1516a(a)(2)(A) (1994) andremands Commerce's finding of calculation of CV to determine whether the transfer price of enamel frit constituted an arm's length transaction as prescribed by the statute and previous practice. The Court affirms the final results with respect to the calculation of COP and CV using revalued rather than historical depreciation, calculation of COP and CV including employee profit sharing expense and calculation of COP and CV using all verified interest income.\\nBackground\\nOn December 2, 1986, Commerce issued an antidumping duty order on Porcelain-on-Steel Cooking Ware from Mexico, 51 Fed. Reg. 43,415 (1986). On January 30,1991, Commerce initiated its fourth administrative review of the order as to Cinsa and another Mexican manufacturer covering the period from December 1,1989 to November 30,1990. Porcelain-on-Steel Cooking Ware from Mexico; Notice of Initiation, 56 Fed. Reg. 3,445 (1991). On February 13, 1991 Commerce issued an anti-dumping questionnaire to Cinsa and Cinsa filed a timely response on April 26,1991. Commerce issued a supplemental questionnaire to Cinsa on June 5,1991 and Cinsa made timely supplemental response on June 21, 1991. Commerce conducted an on-site verification of Cinsa's questionnaire responses between July 8 and July 12, 1991. Separate sales and cost verification reports were issued on December 17, 1991.\\nOn December 27,1991, Commerce issued its preliminary determination establishing a 6.27% dumping margin for Cinsa. Porcelain-on-Steel Cooking Ware from Mexico; Preliminary Results of Antidumping Duty Administrative Review, 56 Fed. Reg. 67,062 (1991). For the preliminary determination Commerce revised Cinsa's reported COP and/or CV calculations to: (1) increase COP and CV to take into account revalued depreciation; (2) increase COP and CV to take into account employee profit sharing expenses; (3) use best information available (\\\"BIA\\\") to increase the reported raw material costs for enamel frit; and (4) increase COP and CV by offsetting total interest expense with short-term interest expense to zero. Cinsa and defendant-intervenor General Housewares Corp. (\\\"GHC\\\") submitted their comments on January 27, 1992. On February 3, 1992, Cinsa and GHC filed comments in rebuttal. On August 16,1993, Commerce published the final results of the antidump-ing administrative review establishing an 8.18% antidumping duty assessment rate and future duty deposit rate for Cinsa. Porcelain-on-Steel Cooking Ware from Mexico; Final Results of Antidumping Duty Administrative Review, 58 Fed. Reg. 43,327 (1993) (\\\"final results\\\").\\nOn August 24,1993, Cinsa timely filed comments alleging ministerial and clerical errors in Commerce's final results. On September 1,1993, GHC filed a response to Cinsa's claims of clerical errors. Cinsa timely filed this action to contest the alleged errors on September 15,1993. On December 23,1993, Commerce determined that certain errors were, indeed, made in the final results and revised Cinsa's antidumping duty assessment rate and future duty deposit rate to 6.71%. OnMarch31,1994, this Court granted leave for Commerce to publish the corrected final results of its fourth administrative review, which was published on May 6, 1994. Porcelain-on-Steel Cooking Ware from Mexico; Amendment to Final Results of Antidumping Duty Administrative Review, 59 Fed. Reg. 23,694 (1994). Cinsa nevertheless appeals the findings made in the amended final results with respect to Commerce's: (1) calculation of COP and CV using revalued rather than historical depreciation; (2) calculation of COP and CV including employee profit sharing expense; (3) calculation of CV using Cinsa's arm's length purchase prices to value enamel frit raw material costs; and (4) calculation of COP and CV using all verified interest income.\\nStandard of Review\\nThe Court \\\"shall hold unlawful any determination, finding, or conclusion found to be unsupported by substantial evidence on the record, or otherwise not in accordance with law, \\\" 19 U.S.C. \\u00a7 1516a(b)(1)(B) (1994). Substantial evidence \\\"means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\\\" Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (citation omitted). \\\"[Substantial evidence] is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. \\\" Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620 (1966) (citations omitted). \\\"As long as the agency's methodology and procedures are reasonable means of effectuating the statutory purpose, and there is substantial evidence in the record supporting the agency's conclusions, the court will not impose its own views as to the sufficiency of the agency's investigation or question the agency's methodology.\\\" Ceramica Regiomantana, S.A. v. United States, 10 CIT 399, 404-5, 636 F. Supp. 961, 966 (1986), aff'd 5 Fed. Cir. (T) 77, 810 F.2d 1137 (1987) (citations omitted).\\nDiscussion\\nI. Revalued Depreciation Costs vs. Historical Depreciation Costs:\\nIn a preliminary matter, Commerce asserts that Cinsa is barred from bringing the issue of distortion of depreciation cost methods because Cinsa failed to raise the issue during the administrative proceeding. The Court finds that Cinsa's well documented disagreement with the use of revalued depreciation costs in determining COP/CV in the administrative record necessarily involves the issue of distortion. As Commerce states, \\\" [t]his Court has accepted Commerce's practice of using a 'firm's expenses as recorded in its financial statements as long as those statements are prepared in accordance with the home country's GAAP and do not significantly distort the firm's financial position or actual costs.'\\\" Def.'s Mem. Opp'n Pl.'s Mot. Summ. J. at 11. (emphasis added) (citations omitted). Commerce cannot utilize the language of the Court in one instance and disregard that same language in another. The Court finds that distortion of costs is a necessary component in the review of depreciation cost methodology as the quote above clearly points out.\\nCinsa submitted depreciation costs based on the historical method in its questionnaire response but submitted financial statements that utilized revalued depreciation costs. Cinsa argues that historical depreciation values best reflects the actual costs during the period of review (\\\"POR\\\"). Commerce relied on depreciation costs based on the revalued method that Cinsa had used to calculate its own financial records. The issue turns on where the burden of persuasion lies: is Commerce required to make a finding that the home market GAAP does not distort COP or is the burden on Cinsa to make a showing that the home market GAAP distorts COP? It is the view of Commerce that the revalued numbers reflect the method accepted by Mexican GAAE] ending their inquiry. Cinsa argued that revalued figures distort the actual costs of the merchandise and should not be used in calculating COP\\nPursuant to an affirmative finding of sales at less than fair value (\\\"LTFV\\\") Commerce is directed to impose an antidumping duty \\\"in an amount equal to the amount by which the foreign market value exceeds the United States Price for the merchandise.\\\" 19 U.S.C. \\u00a7 1673(2)(B) (1994). When Commerce makes a determination that foreign market value (\\\"FMV\\\") cannot be based on home market pricing due to inadequate sales at prices not below the COP in that home market, as is the case here, Commerce may use constructed value (\\\"CV\\\") as a basis for FMV. 19 U.S.C. \\u00a7 1677b(a)(4) (1994). CV is determined by calculating the sum of the cost of materials and the \\\"fabrication or processing of any kind employed in producing such or similar merchandise which would ordinarily permit the production of that particular merchandise in the ordinary course of business.\\\" 19 U.S.C. \\u00a7 1677b(e) (1994).\\nIn determining CV under these circumstances, Commerce has utilized the cost values from Cinsa's questionnaire responses and from Cinsa's submitted financial statements. Both revalued and historical cost methods are recognized under Mexican generally accepted accounting principles (\\\"GAAP\\\"). Commerce has employed both historical and revalued depreciation methods in determining CV in previous cases. The relevant legislative history provides that Commerce \\\"will employ accounting principles generally accepted in the home market of the country of exportation if [Commerce] is satisfied that such principles reasonably reflect the variable and fixed costs of production the merchandise.\\\" H. R. Rep. No. 93-571, at 71 (1973).\\nIn determining the proper methodology in determining CV, the Court has previously found that\\nthis Court has consistently upheld Commerce's reliance on a firm's expenses as recorded in the firm's financial statements, as long as those statements were prepared in accordance with the home country's GAAP and does not significantly distort the firm's actual costs.\\nFAG U.K. Ltd. v. United States, 20 CIT 1277, 1290, 945 F. Supp. 260, 271 (1996) (citations omitted). The same situation exists in the instant case. Cinsa submitted its financial statements that reflected revalued depreciation costs which were consistent with Mexican GAAP The Court finds that the burden rests on Cinsa to prove that the use of revalued depreciation in calculating CV and COP distorted costs.\\nThe court finds that respondents have failed to demonstrate that the ITA's decision to use Hyundai's revalued depreciation expenses is distortive. The verified revalued depreciation expenses were consistent with Korean GAAP and were based on information obtained directly from Hyundai's financial statements.\\nLaclede Steel Co. v. United States, 18 CIT 965, 975, (1994). Commerce is directed to make a finding that cost values reflect the home country GAAP and were based on that firm's financial statements, which is what occurred in the instant case.\\nCinsa failed to satisfy the burden in proving that the use of revalued depreciation costs distorted the actual cost of the subject merchandise. Cinsa argued that use of revalued depreciation costs distorted actual costs of production. Cinsa stated that\\nin calculating COP/CV for a specific period of time, the revaluation of assets has a distortive effect on depreciation expenses. Due to constant revaluation, over time the restatement of depreciation of assets results in charges that can be greater than the acquisition cost of the asset, and can continue past the end of the asset's useful life. Thus, while the restatement of depreciation may be appropriate for financial statement purposes, the restatement of depreciation expenses is not appropriate for all purposes.\\nPl.'s Mem Supp Summ. J. at 14 (emphasis added). Although Cinsa's argument is objectively correct in that any accounting method can or may be distortive, Cinsa fails to demonstrate that the revalued method is dis-tortive in the instant case. Cinsa makes no showing that during the POR use of revalued depreciation distorted costs. For example, Cinsa never posits, much less proves, that using the revalued cost method actually resulted in charges that are greater than the acquisition costs of its assets in this case. Cinsa, therefore, has failed to satisfy its burden and the Court holds that Commerce's use of revalued depreciation costs in determining COP/CV is supported by substantial evidence on the record and otherwise in accordance with law.\\nII. Inclusion of Profit Sharing Expense in COP Calculation:\\nCinsa is required to share earned profits with its employees pursuant to Mexican law. Cinsa shares earned profit only if the company actually earns a profit on its operations. Cinsa did not include profit sharing expense paid during the POR in its calculation of COP/CV claiming that profit sharing is contingent on profitability and is not attributable to the cost of production of the subject merchandise and therefore is properly treated as an income tax, which is not included in COP/CV calculations. Commerce, however, included Cinsa's profit sharing expense in its calculation of COP/CV arguing that profit sharing expenses are a part of the production process and therefore a component of labor wages. Relying on its own administrative precedent, Commerce characterized profit sharing expenses as mandatory payments representing \\\"compensations to the employees involved in the production of the merchandise and administration of the company.\\\" Porcelain-on-Steel Cooking Ware from Mexico; Final Results of Antidumping Duty Administrative Review, 58 Fed. Reg. 43,327 at 43,332 (1993). Commerce has found that all \\\"costs related to labor, bonuses and fringe benefits are considered to be part of the labor expense and, thus, a cost of production.\\\" Porcelain-on-Steel-Cooking Ware From Taiwan, 51 Fed. Reg. 36,425 at 36,428 (1986).\\nIncluding profit sharing expense in the calculation of the COP is an issue of first impression for the Court. Constructed value is ascertained by calculating the sum of the\\nthe cost of materials and fabrication or other processing of any kind employed in producing the merchandise, during a period which would ordinarily permit the production of the merchandise in the ordinary course of business;\\n19 U.S.C. \\u00a7 1677b(e)(1) (1994). Whether employee profit sharing expenses should be included in CV and COP calculations turns on how profit sharing expenses are classified. If profit sharing expenses are classified as a necessary component of production, as Commerce argues, they are properly includable in COP/CV calculations. If profit sharing expenses are classified as a type of income tax, profit sharing expenses would not be includable in the cost of production. Mexican law requires firms to pay employees a certain percentage of the profits earned, therefore, profit sharing is properly characterized as a cost of doing business in Mexico and the expense is properly classified as a cost of production as required by the statute. The Court finds that Commerce's inclusion of profit sharing expenses in calculation COP/CP is not inconsistent with 19 U.S.C. \\u00a7 1677b(e)(l), is supported by substantial evidence and is otherwise in accordance with law.\\nIII. Related Party Pricing:\\nPursuant to the antidumping statute, Commerce may utilize best information available (\\\"BIA\\\") if pricing between related parties does not \\\"fairly reflect the amount usually reflected in sales in the market under consideration.\\\" Commerce determined that Cinsa purchased enamel frit, an ingredient used in production of the subject merchandise, from a related supplier at prices that were not at arm's length and consequently used BIA to calculate the price in determining the CV of the subject merchandise. In the first three administrative reviews, Commerce accepted the pricing from the related supplier in its calculation of constructed value of the subject merchandise. In the fourth administrative review now before the Court, Commerce departed from this methodology and used BIA in its CV calculation. Cinsa objects to this departure from Commerce's methodology used in the three previous reviews.\\nIn its questionnaire response, Cinsa stated that it obtained enamel frit from a related supplier at a cost substantially lower than sales to unrelated parties. Cinsa explained that this discount was due to factors not associated with the relationship with the supplier. Specifically, Cinsa described in its questionnaire response that the discount was due to the savings of transportation costs and volume discounts. Cinsa argues its questionnaire response provided Commerce with adequate information substantiating its claim that the prices of enamel frit were above the cost of production. Cinsa claims that proof of prices above the cost of production is all that Commerce required Cinsa in certifying that the transfer prices were at arm's length. Further, Cinsa also asserts that the information that it had provided in its questionnaire response was exactly the same for the previous three administrative reviews where Commerce posed the identical question yet reached a different conclusion.\\nCommerce defended its use of BIA by stating that the burden of proof to demonstrate arm's length transactions, the test for related parties, rests squarely on the respondent of the questionnaire. Commerce concluded that Cinsa did not meet this burden in the fourth review because Cinsa failed to provide pricing information on sales of enamel frit to unrelated third parties. In the final results, Commerce found that\\nCINSA's submission indicated that the transfer prices from its related supplier were less than the prices paid by an unrelated pur chaser of the same material, we determined that the transfer prices were not made at arm's length. Therefore, in accordance with 773(e)(2) of the Act [19 U.S.C. \\u00a7 1677b(f)(2)], we used BIA for constructed value to calculate the cost of the enamel frit used by CINSA.\\n58 Fed. Reg. 43,327 at 43,332 (1993). Commerce may disregard transactions between related parties if one of the elements of value does not reflect the amount usually reflected in sales in the market for the subject merchandise. 19 U.S.C. \\u00a7 1677b(f)(2) (1994). The Court agrees with Commerce that the burden is on the respondent to \\\"establish that the transfer price for the purchase of raw material from the related party reflects an arms-lengthprice.\\\" Def.'s Mem. Opp'n Pl.'s Mot. Summ. J. at 26 citing NEC Home Electronics, Ltd. v. United States, 18 CIT 336 (1994). However, the Court finds that Cinsa has fulfilled its burden by supplying Commerce with an explanation of how Cinsa determined that the transfer price was representative of a fair market price and an explanation of how Cinsa determined that transfer prices were above the cost of production. Cinsa provided the information that Commerce directly requested in the questionnaire. The Court agrees with Cinsa that Commerce cannot disregard the transfer prices based on the fact that Cinsa did not furnish third party sales information. Providing Commerce with third party sales information is not the only means by which to prove arm's length transfer prices.\\nCinsa effectively shifted the burden to Commerce by providing a host of information explaining the reasons for the discount in transfer price. The Court finds that Commerce did not subsequently meet its burden in determining that the transfer price was not negotiated at arm's length. Commerce's determination in the final results is merely a conclusory statement that affords the Court no basis for ascertaining whether Commerce took into consideration Cinsa's information that provided reasons for the discount in transfer prices between the related parties.\\nIn the three previous administrative reviews, Commerce accepted Cinsa's submitted transfer prices of enamel frit based on the acceptance that the transfer price was at arm's length. In the fourth administrative review, Commerce rejected Cinsa's submitted transfer prices determining that the transfer prices were not made at arm's length. Cinsa claims that Commerce was obligated to follow the methodology it had adopted in each previous review and Cinsa claims that it provided Commerce with the same information in each of the reviews. Commerce argues that it is not bound by previous determinations and that each \\\"administrative review is a separate administrative procedure, with a separate administrative record, and a separate administrative determination which is reviewable separately by suit in this Court.\\\" Def.'s Mem. Opp'n Pl.'s Mot. Summ. J. at 31. Ironically, Commerce quickly makes the comparison that in the first administrative review Commerce \\\"verified that the frit seller charged an arm's length price.\\\" Id. citing Porcelain-on-Steel Cooking Ware from Mexico, 55 Fed. Reg. 21, 061 at 21,064 (1990). It is clear that Commerce did not verify or attempt to verify the information provided by Cinsa in the fourth administrative review as Commerce had done in the first administrative review. The Court is satisfied that Cinsa provided Commerce with the same information on related party transfer prices and Commerce failed to employ the same methodology in the fourth administrative review.\\nThe Court agrees with Commerce that each administrative review is a separate exercise of administrative procedure opening the possibility of different conclusions based on different facts accumulated. Commerce, however, cannot arbitrarily abandon a relied upon methodology. In other words, Commerce can reach different determinations in separate administrative reviews but it must employ the same methodology or give reasons for changing its practice. It is a well settled rule that an agency cannot arbitrarily change its methodology without explanation. As this Court has found:\\nWhile the Commission is not obligated to follow prior decisions if new arguments or facts are presented that support a different conclusion, this does not permit the Commission to act arbitrarily. This is because it is also a general rule that an agency must either conform itself to its prior decisions or explain the reasons for its departure. This rule is not designed to restrict an agency's consideration of the facts from one case to the next, but rather it is to insure consistency in an agency's administration of a statute.\\nCitrosuco Paulista, S.A. v. United States, 12 CIT 1196, 1209, 704 F. Supp. 1075, 1088 (1988) (citations omitted). It is apparent that Commerce applied a different methodology in the fourth administrative review without providing reasons for its departure. The Court finds that Commerce did not satisfy its burden of verifying that the transfer prices were not at arm's length and that Commerce did not provide adequate reasons for departing from its prior methodology. Therefore the finding is contrary to law and not supported by substantial evidence in the record.\\nIV Calculation of Financial Expense:\\nCommerce included both short and long-term interest expenses in its calculation of COP and used short-term interest income to offset the interest expenses. The threshold question is whether Cinsa properly presented this issue at the administrative level. Both Commerce and GHC assert that Cinsa failed to raise this issue at the administrative review and should be precluded from arguing the issue before the Court. Cinsa states that there is ample evidence on the record to support its claim that this issue was timely raised. In Cinsa's Supplemental Questionnaire Response, Cinsa stated that\\nthe ITA has requested that Cinsa report financial expenses based on the total financial expenses, including short-term and long-term expenses, whether related to the production of the merchandise under investigation or other corporate activities. The last sentence of this question requests Cinsa to exclude long-term income, which suggests that the ITA intends to treat interest income different [sic] from interest expense. Clearly, such different treatment for interest income and expense violates the fundamental precept of antidump-ing comparisons as announced by the Court of Appeals for the Federal Circuit in Smith Corona v. United States, 713 F.2d 1569, 1578 (1982) dumping calculations must be based on an \\\"apples to apples\\\" comparison.\\nPl.'s Supplemental Questionnaire Resp. at 3 (emphasis added). From this language it appears that Cinsa properly raised the issue at the administrative level. Commerce and GHC further argue that Cinsa only objected to Commerce's inclusion of long and short-term interest expenses and Cinsa did not raise the issue of offset income accounts. The response underlined above indicates that Cinsa made an issue of the different treatment by Commerce of expenses and incomes on the record and prior to Commerce's final determination. The Court finds that Cin-sa properly raised this issue at the administrative level and the issue is properly before the Court.\\nCommerce included both short and long-term interest expenses in its calculation of COP and used short-term interest income to offset the interest expenses. Cinsa earned substantially more short and long-term interest income than interest expenses it incurred during the POR, therefore, Cinsa desired to have COP calculated with both short and long-term interest income included. Cinsa claims that Commerce erred when it did not include long-term interest income in COR Cinsa asserts that Commerce should not include either long-term interest expenses or long-term interest income in an effort to make the correct and fair comparison or, in the alternative, if Commerce includes long-term interest expenses, it should also include long-term interest income as an offset, thereby making a fair comparison.\\nCommerce and GHC contest Cinsa's argument on the basis that exclusion of long-term interest income is a \\\"longstanding methodology\\\" and is a \\\"reasonable exercise of its administrative discretion.\\\" Def.'s Mem. Opp'n Pl.'s Mot. Summ. J. at 38. Further, Commerce and GHC contend that long-term interest income does not directly relate to current production cost, while payments of long and short-term interest expense are current costs that must be included in COP Cinsa claims that Commerce erred when it allowed offset of interest income only to the extent of interest expense. Cinsa bases this argument on the point that this policy ignores \\\"any financial income that exceeds the amount of the company's financial expenses, although there is no difference in the na ture of the income taken into account and that ignored.\\\" Pl.'s Reply Br. at 38.\\nCommerce argues that interest income is properly viewed as an offset to interest expense, not to COI] and can only be used to reduce total interest expense to not less than zero. The Court agrees with Commerce. Under the statute, Commerce is directed to determine COP as \\\"accurately as possible the true cost to the respondent of manufacturing the subject merchandise.\\\" Timken Co. v. United States, 18 CIT 1, 10, 852 F. Supp. 1040, 1049 (1994). Commerce is further directed to calculate the COP by including all costs of producing the subject merchandise excluding profit under 19 U.S.C. \\u00a7 1677b and 19 C.F.R. \\u00a7 353.51(c). The cost of producing the subject merchandise necessarily involves the cost of borrowed capital used in its manufacture in the form of interest expense. Without the borrowed capital, Cinsa would not be able to produce the subject merchandise. Income expense attributable to the production of the subject merchandise is properly identified as an expense and, therefore, includable in calculating COP Commerce has made it a practice to offset interest expense with interest income that was generated and attributable to the production of the subject merchandise. This is a practice that benefits the respondent by lowering the COP value, which in turn lowers the dumping margin. In the instant case, the offset effectively reduced the interest expense to zero in the calculation of COR Cin-sa claims that Commerce excluded long term interest income offsets that exceeded interest expenses that would have further lowered the COR\\nThe Court finds that expenses by their nature cannot produce a negative effect on the COR Expenses, as a component of costs, cannot become a profit by the nature of their designation. Cinsa is effectively requesting that Commerce and the Court recognize a negative cost. Based on sound accounting and economic principles, the Court declines to accept a finding of negative costs when calculating COE Interest expense, as a component of COI] is a discrete expense account and as such, cannot provide an offset to any other expense accounts. Once the interest expense account is reduced to zero through the offset of interest income, interest expense and interest income has no further effect on the calculation of COE The Court finds that once interest expense is reduced to zero, no further inquiry is necessary as Commerce cannot enter a profit into the calculation of COE The Court finds that Commerce's calculation of Cinsa's interest expense for COP is supported by substantial evidence and is otherwise in accordance with law.\\nThe Court recognizes the final decision of the binational panel concerning the fifth administrative review of Porcelain-on-Steel Cooking Ware from Mexico. The Court by statute is not bound by the final decision and is not required to consider the final decision.\\nConclusion\\nThe Court remands Commerce's finding of calculation of CV to determine whether the transfer price of enamel frit constituted an arm's length transaction as prescribed by the statute and previous practice. The Court affirms all of Commerce's other findings in the amended final results of the fourth administrative review.\\nSee Circular Welded Non-Alloy Steel Pipe From the Republic of Korea, 57 Fed. Reg. 42,942 (1992) where Commerce used revalued depreciation costs, contrasted with Stainless Steel Hollow Products from Sweden, 58 Fed. Reg. 69,332 (1993) where Commerce used historical depreciation costs.\\nThe final results state;\\nThe Department followed Mexican GAAP and adjusted CINSA's COP data to reflect the revalued depreciation. This approach coincided with CINSA's financial statements, which actually showed historical depreciation adjustments for inflation, and which wereprepared in accordance with Mexican GAAP We did, however, recalculate the amount of the adjustment to the COP to correct a clerical error in the calculation. 58 Fed. Reg. 43,327 at 43,331 (1993).\\n19 U.S.C. \\u00a7 1677b(f)(2) (1994):\\n\\\"a transaction directly or indirectly between [related parties] may be disregarded if, in the case of any element of value required to be considered, the amount representing that element does not fairly reflect the amount usually reflected in sales of merchandise under consideration in the market under consideration.\\\"\\nCommerce requested the following information from Cinsa in the questionnaire:\\nFor Constructed Value, the transfer price for transactions between the related companies may be used to value materials inputs if the transfer prices are above the cost of production. However, the transfer price must \\\"fairly reflect the amount usually reflected in sales in the market under consideration.\\\" For example, if a market exists for the identical or similar input obtained from your related supplier, the price could be compared to purchases from unrelated suppliers. Please explain how you determined that the transfer price was representative of a fair market price. Include an explanation as to how you determined that transfer prices were above the cost of production.\\nIn its questionnaire response, Cinsa stated\\nThe discount from the list price is based upon the fact that Cinsa purchases almost [ j times as much enamel as fthe related supplier] sells to all unrelated purchasers combined . there is little or no transportation or packaging expense incurred in the sale of the enamel products to Cinsa . The data contained in Exhibit 30 confirms that the transfer prices paid by Cinsa exceed [the related supplier's] cost of production.\\nPl.'s Questionnaire Resp. at 60.\\n19 U.S.C. \\u00a7 1516a(b)(3) (1994) Effect of decisions by NAFTA or United States Canada binational panels:\\nIn making a decision in any action brought under subsection (a) of this section, a court of the United States is not bound by, but may take into consideration, a final decision of a binational panel or extraordinary challenge committee convened pursuant to article 1904 of the NAFTA or of the Agreement.\"}"

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+"{\"id\": \"11540179\", \"name\": \"John McGLOTHLIN, Plaintiff, v. Edward MURRAY, et al., Defendants\", \"name_abbreviation\": \"McGlothlin v. Murray\", \"decision_date\": \"1999-04-30\", \"docket_number\": \"No. Civ.A. 93-0981-R\", \"first_page\": \"629\", \"last_page\": \"635\", \"citations\": \"54 F. Supp. 2d 629\", \"volume\": \"54\", \"reporter\": \"Federal Supplement 2d\", \"court\": \"United States District Court for the Western District of Virginia\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T18:40:44.164818+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John McGLOTHLIN, Plaintiff, v. Edward MURRAY, et al., Defendants.\", \"head_matter\": \"John McGLOTHLIN, Plaintiff, v. Edward MURRAY, et al., Defendants.\\nNo. Civ.A. 93-0981-R.\\nUnited States District Court, W.D. Virginia, Roanoke Division.\\nApril 30, 1999.\\nJohn Patton McGlothlin, Bland, VA, pro se.\\nPamela Anne Sargent, Office of the Attorney General, Richmond, VA, for Edward Murray, Various John Does, Various Jane Does, Ron Angelone, Warden Thompson, Assist. Warden Hollar, Mary D. Campbell, T. Stewart, Assist. Warden Lawhorn, defendants.\\nRosalie V. Pemberton, Timberlake, Smith, Thomas & Moses, P.C., Staunton, VA, for Chaplain Roepke, defendant.\\nChaplain Roepke, Staunton, VA, defendant pro se.\", \"word_count\": \"2780\", \"char_count\": \"17579\", \"text\": \"MEMORANDUM OPINION\\nMICHAEL, Senior District Judge.\\nThis matter is before the court on remand from the Court of Appeals for the Fourth Circuit. The Fourth Circuit affirmed this court's order denying relief on the merits of Plaintiff John McGlothlin's complaint. However, the Fourth Circuit vacated this court's order granting attorneys' fees to the Defendants and remanded for application of the twelve factors identified in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974). Plaintiffs subsequent petition for certiora-ri was denied by the Supreme Court of the United States. After reviewing the twelve Johnson factors, and other concerns relevant to cases such as this one, the court finds it appropriate to reduce the amount of the attorneys' fees award to $900.\\nI.\\nPlaintiff, who was an inmate at Dillwyn Correctional Center at the time he brought this lawsuit, has proceeded pro se throughout this litigation, including all appeals. His complaint pursuant to 42 U.S.C. \\u00a7 1983 claims numerous violations of his constitutional rights, specifically his rights under the First and Fourteenth Amendments. Plaintiff alleged that prison officials and the prison chaplain discriminated against him because of his Islamic faith. After an evidentiary hearing, the United States Magistrate Judge recommended denying relief, and this court adopted that recommendation, overruling plaintiffs objections.\\nThereafter, the defendants filed motions for attorneys' fees, which were granted based on the recommendation of the Magistrate Judge. Defendants sought, and were granted, a total of $28,719.25 in attorneys' fees. The court also adopted the Magistrate Judge's recommendations to deny defendants' motions to grant Rule 11 monetary sanctions and to revoke plaintiffs in forma pauperis (IFP) status. Plaintiff never challenged the reasonableness of the amount of the costs and fees calculated by defendants. Instead, plaintiff claimed that an attorneys' fees award in any amount whatsoever would be inappropriate because his claims were not groundless.\\nII.\\nThe Fourth Circuit has adopted the twelve factors in Johnson as the guidelines to used by lower courts in determining a reasonable attorney's fee. See Trimper v. City of Norfolk, 58 F.3d 68, 73 (4th Cir.1995). The twelve Johnson factors are:\\n(1) the time and labor required to litigate the suit; (2) the novelty and difficulty of the questions presented by the lawsuit; (3) the skill required properly to perform the legal service; (4) the preclusion of other employment opportunities for the attorney due to the attorney's acceptance of the case; (5) the customary fee for such services; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount in controversy involved and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the \\\"undesirability\\\" of the case; (11) the nature and length of the attorney's professional relationship with the client; and (12) awards in similar cases.\\n58 F.3d at 73.\\nTwo additions should be made to this list when considering an attorney's fees award against a pro se plaintiff in a case such as this one: (1) the importance of ensuring access to the courts for plaintiffs with civil rights claims, and (2) the financial means of the plaintiff. The Trimper court noted, recalling the decision in Daly v. Hill, 790 F.2d 1071 (4th Cir.1986), that in determining a reasonable attorney's fee under 42 U.S.C. \\u00a7 1988, the court must also be guided by the underlying purpose of that section, which is \\\"to ensure effective access to the judicial process for persons with civil rights grievances without simultaneously producing windfalls to the attorneys.\\\" Trimper, 58 F.3d at 73. In addition, courts within the Fourth Circuit have also considered the plaintiffs financial position to be a relevant factor in determining a reasonable attorney's fees award against a plaintiff. See, e.g., Introcaso v. Cunningham, 857 F.2d 965, 968 (4th Cir.1988), Zaczek v. Fauquier County, 764 F.Supp. 1071 (E.D.Va.1991), aff'd by 16 F.3d 414 (4th Cir.1993).\\nAfter adding these two factors to the twelve in Johnson, the court will undertake to address each of these factors in turn.\\nFirst, the plaintiff significantly increased the time and labor required to litigate this case by his endless flood of pleadings and repeated changes in specifying the allega tions underlying his claims. The litigation began in December 1993 and has lasted to the present, with the Supreme Court handing down its decision denying certio-rari in March 1999. The defendants and their counsel labored throughout that period, including through a two-day evidentia-ry hearing in November 1996. Although the attorney for the state defendants was familiar with the plaintiff and therefore able to decipher his numerous pro se filings fairly readily, the sheer number of those filings multiplied the amount of time she had to spend reviewing and responding to documents. The Bill of Costs and Fees submitted by the attorney for the state defendants appears to this court to reasonably calculate the time and labor required to perform the essential tasks in this litigation, typically allotting five minutes to review orders, letters from plaintiff, and the like. Similarly, the attorney for the chaplain has reasonably calculated the time required to litigate this case in filing her motion for attorney's fees.\\nPlaintiffs claims did not present novel or difficult questions of law. However, plaintiffs methods of litigating, as a pro se plaintiff, and the difficulties in investigating the factual allegations he made to support his claims, forced defendants to interview witnesses and present testimony only to discover that most of those factual allegations were without any basis in reality. However, the questions presented were recognized early on as meritless by the attorney for the state defendants and were therefore fairly simple to attack. Similarly, the chaplain's clear-cut defense that he was not a state actor and therefore not liable under \\u00a7 1983 surfaced fairly early in the litigation.\\nDefendants' counsel were able to perform the legal service to their clients without a high degree of skill because plaintiffs claims eventually collapsed on their own weight. After the evidentiary hearing finally brought to light the reality behind plaintiffs claims, the Magistrate Judge noted that there was an utter lack of evidence to support plaintiffs case. Ferreting out the substance behind the smokescreen of plaintiffs flood of pleadings required relatively little skill, but an inordinate amount of time.\\nPreclusion of other employment opportunities is not a particularly relevant factor in this case. The Assistant Attorney General who represented the state defendants does not choose to handle particular cases, but is engaged on a regular basis by the state to handle whatever matters arise. This litigation diverted her time and attention from other matters she might have handled, but her employment opportunities remain constant due to her position. The chaplain proceeded pro se for most of the time-frame of this litigation. His counsel devoted a total of 38.5 hours to this case, only minimally precluding her from taking on other employment opportunities.\\nBoth counsel have calculated fees using a reasonable hourly rate that comports with the customary fee for such services. Counsel for the state defendants has been awarded fees in the past by federal and state courts at the same rate at which she calculated her fees in this case, $150.00 per hour. Counsel for the chaplain calculated her fees at a slightly lower rate of $125.00 per hour, which is also a reasonable and customary rate for work on this type of case.\\nNeither counsel calculated her fees on a contingency basis, so the sixth factor is not particularly relevant here. The seventh factor, whether there were any time limitations imposed by the client or circumstances, also does not apply in this case. The eighth factor, the amount in controversy and the result obtained, suggests comparing those two variables to arrive at a measure of the degree of success, but this comparison is meaningless unless the plaintiff is the prevailing party.\\nEach of the attorneys for defendants in this case possessed adequate experience, reputation and ability to litigate this case in a professional manner. Counsel for the state defendants is a former law clerk to the Chief Judge for the U.S. District Court for the Northern District of West Virginia, has practiced for 19 years, and specializes in civil rights cases such as this one. Counsel for the chaplain is duly licensed to practice law in the Commonwealth of Virginia, and practices with a reputable law f\\u00edirn in Staunton, Virginia.\\nUndesirability of the case, the tenth factor, also has more significance when plaintiff prevails than when defendants prevail, as in this case. Rarely, if ever, is it desirable to be the defendant in a civil rights suit. As far as state defendants are concerned, the Assistant Attorney General never considered whether or not representing her clients would be desirable; her role in this case is part and parcel of her job. Counsel for the chaplain, who made an appearance mid-way through the litigation, had the benefit of collaborating with counsel for her client's co-defendants, which probably lessened the undesirability of the representation.\\nThe eleventh factor also seems to have an awkward fit for the Assistant Attorney General who represented state defendants: the nature and length of the attorney's professional relationship with the client. The state defendants' counsel has represented these defendants and others similarly situated throughout her employment in the Attorney General's Office and has an ongoing, regular relationship with state actors as defendants. The attorney for the chaplain, on the other hand, had a very short professional relationship with her client, entering an appearance after significant work had already been accomplished in ferreting out the truth behind plaintiffs allegations.\\nThe twelfth factor poses the greatest difficulty for this court. This court has perused the case law in the Fourth Circuit, and cases out of the district courts in Virginia, and finds very few cases in which sizable attorney's fees awards were granted to defendants in \\u00a7 1983 actions brought by pro se, indigent, prison inmates such as this plaintiff. One reason for this is the Supreme Court's caution that \\\"attorney's fees should rarely be awarded\\\" against pro se inmates due to their understandable ignorance of subtle legal and factual issues. See Hughes v. Rowe, 449 U.S. 5, 15, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980). The degree to which a pro se inmate's \\u00a7 1983 action must be frivolous, unreasonable, or without foundation in order for attorney's fees to be assessed against the inmate appears to be greater than that required to award fees against other plaintiffs. See, e.g., Autry v. Woods, 86 F.3d 1148, 1996 WL 276315 (4th Cir.1996) (per curiam) (attorney's fees award upheld where inmate had previously litigated exactly the same claims against the same defendants in state court), Vester v. Murray, 878 F.2d 380, 1989 WL 68870 (4th Cir.1989) (award of attorney's fees against pro se inmate proceeding pursuant to \\u00a7 1983 was vacated because although plaintiffs case was dismissed prior to trial, that is not a sufficient basis for awarding fees when plaintiff is proceeding pro se).\\nEven in cases where the necessary degree of frivolousness or meritlessness was found, thereby warranting an attorney's fees award against a pro se prisoner plaintiff, the amount of that fee rarely reaches the magnitude sought by defendants here. See, e.g., Hughes (although ultimately vacated by the Supreme Court, the amount of attorney's fees awarded by the district court originally was only $400), Zaczek (although it would have been appropriate to award attorney's fees, district court effectively reduced amount of award to zero due to plaintiffs financial condition).\\nThe court's purpose in imposing the fee award in this case was to send a message to plaintiff that he would not be allowed to continue to bring lawsuits such as this with impunity. The backdrop of plaintiffs previous litigation experience signified a key consideration in the Magistrate Judge's determination that a fee award against plaintiff was warranted. In this case, and apparently in past actions brought by plaintiff, the legal claims brought by plaintiff appeared meritorious, alleging violations of rights which prisoners are entitled to enjoy. However, when plaintiff may have, or should have, known that the true factual circumstances underlying those claims would eventually reveal the lawsuits to have very little merit, characterizing the suits as frivolous seems fairly accurate. Frivolousness should be weighed by measuring not only the viability of the legal claims, but the ability of the facts to support those claims. The Magistrate Judge, as well as the defendants, particularly the state defendants, were understandably frustrated because of the flood of pleadings by plaintiff, not only in this case, but in several other lawsuits brought by this plaintiff. However, the court notes in retrospect that it may have placed undue emphasis on the plaintiffs litigation history in assessing fees against him in this particular case. \\\"The mere fact that a prisoner has filed a multiplicity of suits in the past is not an adequate basis for assessing fees against him.\\\" Vester, 878 F.2d 380, 1989 WL 68870 at *2.\\nAfter considering the twelve factors, to the extent they pertain to this case, the ultimate determination of a reasonable amount for attorneys' fees in this case devolves upon the court's discretion. The additional factors which this court feels it must consider after analyzing the twelve Johnson criteria suggest that the court should reduce the amount of the award in this case. First, the court is concerned that awarding attorney's fees against a pro se inmate such as this plaintiff might discourage other inmates who have viable civil rights claims from attempting to access the judicial process to remedy actual violations of their rights. See Trimper, 58 F.3d at 73. Second, the court is concerned that the prospect of this plaintiff ever actually paying the amount calculated by defendants is so remote that to assess that amount against this plaintiff would simply be folly. See Introcaso v. Cunningham, 857 F.2d 965, 968 (4th Cir.1988) (court's decision to award only ten percent of the possible assessment for attorney's fees was upheld due to plaintiffs financial position), Zaczek, 764 F.Supp. at 1080 (after finding that plaintiffs misconduct had prejudiced defendants and caused unnecessary expenses, court nonetheless found that \\\"a monetary sanction would do little to curb his conduct and is not feasible\\\" because pro se inmate plaintiff was unemployed and had few assets). Therefore, the amount of the award must reflect the reality of plaintiffs limited assets and ability to pay, while still making him realize that frivolous litigation has its costs. The court finds that awarding attorney's fees in the amount of $750 to the state defendants and $150 to the chaplain's counsel appropriately balances these concerns.\\nIII.\\nHaving reviewed the twelve Johnson factors and considering the additional concerns arising in \\u00a7 1983 eases brought pro se by inmates such as plaintiff, the court finds that a reasonable attorneys' fee in this case is $900, with $750 to be paid by plaintiff toward the attorney's fees of Pamela Anne Sargent of the Office of the Attorney General and $150 to be paid toward the attorney's fees of Rosalie Pem-berton, counsel for Chaplain Roepke. Although the calculations by counsel of their attorney's fees appear to be accurate and reasonable in amount, the liability of this plaintiff for attorney's fees has been significantly reduced out of concern that such a large fee would not have a real impact on plaintiff because its payment is so unlikely and out of concern that such a large award against a pro se prisoner would discourage inmates with viable claims from seeking access to the courts.\\nAn appropriate Order shall this day issue.\\n. For example, one of the outward manifestations plaintiff cited in his complaint to show that Christian inmates were treated more favorably than Muslim inmates was the relative size and state of the bulletin boards for the Christian and Muslim groups. What plaintiff did not reveal, but probably knew from the beginning, was that prison funds were not utilized to obtain or maintain those bulletin boards. Rather, inmates engaged in fund raising and relied on donations from persons outside the prison facility to pay for the cost of bulletin boards as well as many other services of a religious nature which were provided to inmates.\"}"

us/11687302.json

@@ -0,0 +1 @@
+"{\"id\": \"11687302\", \"name\": \"Anthony VULPIS, Petitioner, v. UNITED STATES of America, Defendant\", \"name_abbreviation\": \"Vulpis v. United States\", \"decision_date\": \"1998-08-06\", \"docket_number\": \"No. 97 Civ. 2191(CBM); No. SSS 89 Cr. 446 (CBM)\", \"first_page\": \"751\", \"last_page\": \"752\", \"citations\": \"14 F. Supp. 2d 751\", \"volume\": \"14\", \"reporter\": \"Federal Supplement 2d\", \"court\": \"United States District Court for the Southern District of New York\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T23:59:21.363931+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Anthony VULPIS, Petitioner, v. UNITED STATES of America, Defendant.\", \"head_matter\": \"Anthony VULPIS, Petitioner, v. UNITED STATES of America, Defendant.\\nNo. 97 Civ. 2191(CBM).\\nNo. SSS 89 Cr. 446 (CBM).\\nUnited States District Court, S.D. New York.\\nAug. 6, 1998.\\nJohn J. Meglio, Flushing, NY, for Petitioner.\", \"word_count\": \"553\", \"char_count\": \"3359\", \"text\": \"Memorandum Opinion Denying Certificate of Appealability\\nMOTLEY, District Judge.\\nPetitioner Anthony Vulpis (\\\"Vulpis\\\") brings the instant motion pursuant to 28 U.S.C. \\u00a7 2253. For the reasons set forth below, the application for a certificate of appealability is denied.\\nOn March 29, 1997, Vulpis moved under 28 U.S.C. \\u00a7 2255 to vacate, set aside, or correct his sentence. Title 28 U.S.C. \\u00a7 2255 provides, in relevant part, that \\\"[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . or is otherwise subject to collateral attack . may move the court which imposed the sentence to vacate, set aside or correct the sentence.\\\"\\nVulpis is currently serving a 12 year, seven month sentence which was imposed on October 3, 1990 for acts relating to his operation of an illegal garbage dumping ground. See United States v. Paccione, 751 F.Supp. 368 (S.D.N.Y.1990). This judge imposed the sentence following a 12-week trial at which a jury found Vulpis guilty of racketeering, racketeering conspiracy, and mail fraud. The Second Circuit affirmed Vulpis' conviction and sentence on appeal. See United States v. Paccione, 949 F.2d 1183 (2d Cir.1991). Vulpis also moved for a new hearing in 1991 based on alleged newly-discovered evidence that the environmental contamination at the waste site predated Vulpis' illegal use of the site. This motion was denied and the denial was summarily affirmed by the Second Circuit. See United States v. Paccione, 962 F.2d 4, Nos. 91-1669, 91-1693, 91-1694 (2d Cir. March 27, 1992); Tr. at 7. Vulpis then collaterally challenged his sentence, pursuant to 28 U.S.C. \\u00a7 2255, on three grounds:\\n1. The court allegedly used an improper offense level in the sentencing based on uncharged and unconvicted environmental offenses.\\n2. Allegedly there had been an intervening change in the law.\\n3. Allegedly Vulpis received ineffective assistance of counsel.\\nOn June 2, 1998, this court held a hearing on Vulpis' \\u00a7 2255 motion. This court denied the motion, on the record, due to Vulpis' failure to make an adequate investigation of his contention that the landfill environment was not harmed and due to want of legal support for the other two contentions. See Tr. at 11, 12, 17, 20, 21. Because of this denial, Vulpis must obtain a certificate of appealability from this court before he may appeal the denial of the \\u00a7 2255 motion to the Second Circuit. See Lozada v. U.S., 107 F.3d 1011, 1014-17 (2d Cir.1997), overruled on other grounds by U.S. v. Perez, 129 F.3d 255 (2d Cir.1997).\\nThis court now determines that the petitioner has failed to make the requisite \\\"substantial showing of the denial of a constitutional right\\\" and, therefore, declines to issue a certificate of appealability. 28 U.S.C. \\u00a7 2253(c)(2) (\\\"A certificate of appealability may issue . only if the applicant has made a substantial showing of the denial of a constitutional right.\\\").\\n. \\\"Tr.\\\" refers to the transcript of the oral argument of the \\u00a7 2255 motion on June 2, 1998.\"}"

us/11709216.json

@@ -0,0 +1 @@
+"{\"id\": \"11709216\", \"name\": \"Cisneros v. Reno, Attorney General\", \"name_abbreviation\": \"Cisneros v. Reno\", \"decision_date\": \"1996-12-02\", \"docket_number\": \"No. 96-596\", \"first_page\": \"1011\", \"last_page\": \"1011\", \"citations\": \"519 U.S. 1011\", \"volume\": \"519\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T21:18:09.710801+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Cisneros v. Reno, Attorney General.\", \"head_matter\": \"No. 96-596.\\nCisneros v. Reno, Attorney General.\", \"word_count\": \"13\", \"char_count\": \"81\", \"text\": \"C. A. 2d Cir. Certiorari denied.\"}"

us/11754047.json

@@ -0,0 +1 @@
+"{\"id\": \"11754047\", \"name\": \"Mouton v. United States\", \"name_abbreviation\": \"Mouton v. United States\", \"decision_date\": \"1980-10-06\", \"docket_number\": \"No. 79-6763\", \"first_page\": \"860\", \"last_page\": \"860\", \"citations\": \"449 U.S. 860\", \"volume\": \"449\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T21:59:00.276185+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mouton v. United States.\", \"head_matter\": \"No. 79-6763.\\nMouton v. United States.\", \"word_count\": \"12\", \"char_count\": \"72\", \"text\": \"C. A. 9th Cir. Certiorari denied.\"}"

us/11806938.json

@@ -0,0 +1 @@
+"{\"id\": \"11806938\", \"name\": \"Al-Wahhab v. Virginia et al. (two judgments)\", \"name_abbreviation\": \"Al-Wahhab v. Virginia\", \"decision_date\": \"1996-04-29\", \"docket_number\": \"No. 95-8116\", \"first_page\": \"1172\", \"last_page\": \"1172\", \"citations\": \"517 U.S. 1172\", \"volume\": \"517\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T22:03:15.372879+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Al-Wahhab v. Virginia et al. (two judgments).\", \"head_matter\": \"No. 95-8116.\\nAl-Wahhab v. Virginia et al. (two judgments).\", \"word_count\": \"15\", \"char_count\": \"93\", \"text\": \"C. A. 4th Cir. Certiorari denied.\"}"

us/12117193.json

@@ -0,0 +1 @@
+"{\"id\": \"12117193\", \"name\": \"UNITED STATES v. SMITH et al.\", \"name_abbreviation\": \"United States v. Smith\", \"decision_date\": \"1819-10\", \"docket_number\": \"\", \"first_page\": \"1247\", \"last_page\": \"1249\", \"citations\": \"27 F. Cas. 1247\", \"volume\": \"27\", \"reporter\": \"Federal Cases\", \"court\": \"United States Circuit Court for the Eastern District of Pennsylvania\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T17:00:54.318055+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"UNITED STATES v. SMITH et al.\", \"head_matter\": \"Case No. 16,345.\\nUNITED STATES v. SMITH et al.\\n[3 Wash. C. C. 525.]\\nCircuit Court, E. D. Pennsylvania.\\nOct Term, 1819.\\nSeamen\\u2014 Correction bt Master\\u2014Right of Resistance\\u2014Confinement of Master\\u2014Revolt.\\n1. The master of a vessel has an absolute authority on board the vessel under his command, and his lawful orders must b\\u00e9 obeyed. He may inflict moderate correction for disobedience, and impertinent language or behaviour. The seaman may endeavour to escape from it; and if he is pursued, and is otherwise exposed to a repetition of such treatment, he may resist for the mere purpose of protecting himself trom injury.\\n[Cited in Fuller v, Colby, Case No. 5,149.]\\n[Cited in Buddington v. Smith, 13 Conn. 33(5; Thompson v. Hermann, 47 Wis. (507, 3 N. W. 579.]\\n2. If the master use an unlawful weapon, or the seaman is exposed to danger of his life, or limbs, he may resort to any necessary species of defence to avoid this danger.\\n[Cited in Fuller v. Colby, Case No. 5,149.]\\n3. If the master strikes the seaman, and is seized by him, and' is so firmly held, as that he cannot extricate himself, the seaman is guilty of confining the captain.\\n4. Quere, what is making a revolt on board a ship?\\nIndictment [against Smith and Coombs], The first count was for confining the captain. 2. For endeavouring to malte a revolt.\\n[Originally published from the MSS. of Hon. Bushrod Washington, Associate Justice of the Supreme Court of the United States, under the supervision of Richard Peters, Jr., Esq.]\", \"word_count\": \"1249\", \"char_count\": \"7069\", \"text\": \"WASHINGTON, Circuit Justice\\n(charging Jury). As something has been said, by the counsel on each side, respecting the authority of the master of a vessel to correct his seamen, and the duty of submission by the latter, it may not, perhaps, be time misemployed, to make some observations upon these subjects, although not necessarily involved in the questions which arise under the present prosecution. The master has an absolute authority on board of his ship; and his orders, .if not unlawful, are, and must be, imperative. Submission is amongst the first duties of the seamen; and their deportment to the master ought to be respectful. He is justified in inflicting moderate correction on the mariners, for disobedience of orders, and for impertinent language and behaviour. Although it would be, in general, more dignified and more prudent, to avoid inflicting personal chastisement on a seaman for offensive language, yet the law does not condemn him for doing so; it is an indulgence to human infirmity, rather than a justification. The seaman, in such a predicament, may endeavour to escape from it; and if pursued, or if he is otherwise exposed to a repetition of such treatment, he may lawfully resist, in such manner as to protect himself against injury. If the master make use of an unlawful weapon, or the seaman is otherwise exposed to apparent danger of life or limb, he may lawfully resort to any species of defence necessary to avert the danger. In the case of U. S. v. Sharp [Case No. 16,264], this doctrine was fully explained.\\nHaving made these general observations, we proceed to the consideration of the first count in the indictment; which is, for confining the master. The evidence on the part of the prosecution is, that after the master had struck at Smith, with a rope of dangerous size, which Smith laid hold of in order to escape the blow, the master struck him with his fist, which Smith returned; and having seized each other, they fell on the deck; and the master, having the ascendency, placed his knee on the breast of Smith; and, in that situation, mutual blows were exchanged, (Smith having hold of the master's collar,) until Boyd, another of the seamen, desired the master not to strike Smith again; upon which he quitted Smith, and ordered all the seamen, who, to the number of eight or ten, had come aft on the quarter deck, to go forward. The witnesses further prove, that, whilst Smith was down, he called to his comrades more than once, and asked if they would see him so treated; that they were ordered by the master to go forward, which they refused to do, until the master had called for his cutlass, and was in a situation to enforce his order. The defendants' witnesses deny that Smith struck the master, or laid hold of him, so as to confine him; some of them deny, also, that Smith called for the aid of his comrades, or that they were ordered by the master to go forward, until he had risen from the deck and called for his cutlass; when they obeyed.\\nUpon .this evidence, it is for you to say, whether the captain was at any time confined by Smith. That Smith, after he was seized by the master, and until he was released, was himself confined, is certain. Nevertheless, if the captain's situation was forced upon him by Smith, if he was so firmly held by Smith that he could not extricate himself, then the defendant is guilty under this count;, because, it has repeatedly been decided in this court, that if the master be placed under re-' straint by his seamen, or by any one of them, for any space of time, however short, whether it be by manual force, or by menace and intimidation, this is, in construction of law, a confinement U. S. v. Sharp [supra]; U. S. v. Bladen [Case No. 14,606]; U. S. v. Smith [Id. 16,337]. If, on the other hand, the master was not so restrained, the insolence of Smith, his return of the captain's blows, however culpable such conduct would render him, and his resistance of the blows he received, would not amount to this offence. One of the witnesses stated, that he and the captain thought it prudent, for some nights after this affray, to keep watch in the cabin, and to be armed. If this was so, and you should be of opinion, that the conduct of the defendants and their associates rendered that measure prudent; and if also, the captain, in consequence of any threatened danger from the seamen, was prevented from the free exercise of all his privileges in every part of the ship, then these circumstances would amount to a constructive confinement; otherwise not. But unless this, in your opinion, was the fact; there is no evidence whatever to convict Coombs upon this count, as he had no personal conflict with the master, which can be construed into a confinement of him.\\nAs to the other count, for endeavouring to make a revolt: What constitutes a revolt, has never been decided by this court. On the contrary, we have always recommended it to the jury, to acquit the accused on counts for making, or endeavouring to make, a revolt. But a most respectable and learned judge of the supreme court (U. S. v. Smith [supra]) has defined it to be an endeavour to excite the crew to overthrow the lawful authority of the master and officers of the ship. Wishing to have this point decided by the supreme court, we shall request the jury, in case they should be of opinion that the defendants are guilty of endeavouring to make a revolt, according to this definition, to find them guilty, subject to the opinion of the court upon the facts of the case.\\nThe jury found the defendants not guilty.\"}"

us/121228.json

@@ -0,0 +1 @@
+"{\"id\": \"121228\", \"name\": \"William Nay WOOD, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee\", \"name_abbreviation\": \"Wood v. Crouse\", \"decision_date\": \"1964-01-31\", \"docket_number\": \"No. 7500\", \"first_page\": \"81\", \"last_page\": \"81\", \"citations\": \"327 F.2d 81\", \"volume\": \"327\", \"reporter\": \"Federal Reporter 2d Series\", \"court\": \"United States Court of Appeals for the Tenth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T02:06:00.231996+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William Nay WOOD, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee.\", \"head_matter\": \"William Nay WOOD, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee.\\nNo. 7500.\\nUnited States Court of Appeals Tenth Circuit.\\nJan. 31, 1964.\\nArthur W. Burke, Jr., Denver, Colo., for appellant.\\nArthur E. Palmer, Asst. Atty. Gen., Topeka, Kan. (William M. Ferguson, Atty. Gen., of Kansas, and Park McGee, Asst. Atty. Gen., Topeka, Kan., on the brief), for appellee.\\nBefore PICKETT and LEWIS, Circuit Judges, and KERR, District Judge.\", \"word_count\": \"213\", \"char_count\": \"1291\", \"text\": \"PER CURIAM.\\nThis is a habeas corpus proceeding in which petitioner, Wood, challenges the validity of five sentences for 30 years each which he is now serving in the Kansas State Penitentiary. The petitioner appeals from an order discharging the writ remanding him to the custody of the respondent warden.\\nWood is also serving, concurrently with the 30 year sentences, another, separate and as yet uncompleted sentence of not less than 10 years. The validity of this sentence is not questioned.\\nIt is well settled that habeas, corpus will not lie when the prisoner will not be entitled to immediate release if there is a determination in his favor in the proceeding. Crawford v. Taylor, 10 Cir., 290 F.2d 197; McGann v. Taylor, 10 Cir., 289 F.2d 820, cert. denied 368. U.S. 904, 82 S.Ct. 182, 7 L.Ed.2d 98.\\nAffirmed.\"}"

us/12151546.json

@@ -0,0 +1 @@
+"{\"id\": \"12151546\", \"name\": \"Saturley v. United States\", \"name_abbreviation\": \"Saturley v. United States\", \"decision_date\": \"1990-06-11\", \"docket_number\": \"No. 89-7408\", \"first_page\": \"930\", \"last_page\": \"930\", \"citations\": \"496 U.S. 930\", \"volume\": \"496\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T02:38:01.207338+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Saturley v. United States.\", \"head_matter\": \"No. 89-7408.\\nSaturley v. United States.\", \"word_count\": \"12\", \"char_count\": \"74\", \"text\": \"C. A. 9th Cir. Certiorari denied.\"}"

us/12175693.json

@@ -0,0 +1 @@
+"{\"id\": \"12175693\", \"name\": \"Raul Rivas RODRIGUEZ, a/k/a Raul Rivas, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent\", \"name_abbreviation\": \"Rodriguez v. Attorney General United States\", \"decision_date\": \"2016-12-19\", \"docket_number\": \"No. 16-1354\", \"first_page\": \"392\", \"last_page\": \"400\", \"citations\": \"844 F.3d 392\", \"volume\": \"844\", \"reporter\": \"Federal Reporter 3d Series\", \"court\": \"United States Court of Appeals for the Third Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T19:36:03.443182+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: AMBRO, SHWARTZ, FUENTES, Circuit Judges.\", \"parties\": \"Raul Rivas RODRIGUEZ, a/k/a Raul Rivas, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent\", \"head_matter\": \"Raul Rivas RODRIGUEZ, a/k/a Raul Rivas, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent\\nNo. 16-1354\\nUnited States Court of Appeals, Third Circuit.\\nSubmitted Under Third Circuit LAR 34.1(a) November 18, 2016\\n(Opinion Filed: December 19, 2016)\\nFabian Lima, Esq., 1500 Walnut Street, Suite 206, Philadelphia, PA 19102, Counsel for Petitioner\\nJur\\u00eda L. Jones, Esq., Holly :M. Smith, Esq., United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent\\nBefore: AMBRO, SHWARTZ, FUENTES, Circuit Judges.\", \"word_count\": \"3213\", \"char_count\": \"19918\", \"text\": \"OPINION\\nSHWARTZ, Circuit Judge.\\n- Raul Rivas- Rodriguez (\\\"Rivas\\\") petitions for review of the decision of the Board of Immigration Appeals (\\\"BIA\\\") dismissing his appeal from an order of the Immigra tion Judge (\\\"IJ\\\") denying his motion to terminate removal proceedings and ordering him removed to the Dominican Republic. Because the conviction that served as a basis for his removal has been vacated, and the Notice of Removal did not specify his participation in a deferred adjudication program as a basis for removal, we will grant the petition. .,\\nI\\nRivas, a native and citizen of the Dominican Republic, was admitted to the United States as a legal permanent resident when he was two years old. In September 2013, following a bench trial in. the Philadelphia Municipal Court, he was convicted of the purchase, receipt, and intentional possession of phencyclidine (\\\"PCP\\\"), and was sentenced to eighteen months' probation.\\nFollowing these convictions, the United States Department of Homeland Security initiated removal proceedings against Rivas and served him with a \\\"Notice to Appear.\\\" A.R. 569-71. The Notice stated that he was subject to removal pursuant to 8 U.S.C. \\u00a7 1227(a)(2)(B)(i) for having been convicted of two state law violations relating to a controlled substance.\\nPrior to his immigration hearing and after receiving this notice, Rivas petitioned the Municipal Court for relief from his convictions under the Pennsylvania Post Conviction Relief Act (\\\"PCRA\\\"). He argued that he received ineffective assistance of counsel because his trial counsel failed to advise him of the possible immigration consequences arising from his conviction and for advising him not to appeal the trial verdict. During the three-day PCRA hearing, Rivas's trial counsel testified that he advised Rivas of the immigration consequences flowing from a conviction and that he could not recall the advice he gave regarding an appeal but \\\"probably would have advised [Rivas] that . it is still no.t a winnable case..., \\\" A.R. 149. After the hearings, and at the request of the Commonwealth, the Municipal Court denied the PCRA petition and then, by agreement of the parties, vacated the guilty verdicts and placed Rivas on pretrial probation for three years as part of a deferred adjudication agreement. Included in the order vacating the judgment were conditions requiring Rivas to: (1) \\\"stipulate to all of the Commonwealth's evidence in the underlying trial\\\"; (2) reside in Pennsylvania; (3) report to court; (4) participate, if necessary, in employment training as well as drug testing and treatment; and (5) \\\"\\u00bfgfee that any violation of any of these conditions will result in a Negotiated Stipulated Trial.\\\" A.R. 120. The Commonwealth agreed to withdraw the charges if Rivas successfully completed his pretrial probation.\\nRivas thereafter filed a motion to terminate his removal proceedings on the ground that his convictions, which constituted the basis for his potential removal, had been vacated. His motion also averred that \\\"[t]he sentences have not been vacated solely to avoid the immigration consequences of his conviction.\\\" A.R.' 128. The IJ denied Rivas's motion arid ordered him removed to the Dominican Republic. The IJ found that since Rivas's trial counsel testified at the PCRA hearings that he did advise Rivas of the immigration consequences of an adverse judgment, and since the Municipal Court denied the PCRA petition, the. IJ was \\\"convinced that the primary and probably the only reason for the conviction vacatur was to permit the respondent to avoid the [i]mmigration consequences of his drug conviction.\\\" App. I 9-10.\\nThe BIA agreed-, finding that the Municipal Court vacated Rivas's convic tions to allow him to avoid their immigration consequences. The BIA also found that even if Rivas's convictions had been vacated on substantive -grounds, the terms of the order vacating the convictions still amounted to a \\\"conviction\\\" under the Immigration and Nationality Act (\\\"INA\\\"). Specifically, the BIA found that since Rivas stipulated to all of the state's evidence against him as part of the agreement vacating his convictions, and since his liberty was restrained under the resulting probation program, he remained \\\"convicted\\\" under immigration law and was removable. Consequently, the BIA affirmed the IJ's denial of Rivas's motion to terminate on two independent grounds. Rivas petitions for review.\\nII\\nSection 1227(a)(2)(B)(i) of the INA provides that \\\"[a]ny alien who at any time after admission has been convicted of a violation of . any law or regulation of a State . relating to a controlled substance . is deportable.\\\" The issue here is whether the disposition of Rivas's state court criminal proceedings render him \\\"convicted\\\" for . purposes of the INA.\\nA\\nA petitioner whose criminal conviction was vacated is no longer \\\"convicted\\\" under the INA where the conviction was vacated on the basis of a substantive or procedural defect in the underlying criminal proceedings. In re Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003), rev'd on other grounds, 466 F.3d 263 (6th Cir. 2006). Conversely, where \\\"a court vacates a conviction for reasons unrelated to the merits of the underlying criminal proceedings,\\\" such as for rehabilitation or to allow a petitioner to avoid the immigration effects of the conviction, then the petitioner \\\"remains 'convicted' for immigration purposes.\\\" Id.; see also Cruz v. Att'y Gen., 452 F.3d 240, 242 (3d Cir. 2006) (concluding that Pickering provides a reasonable interpretation of \\u00a7 1227(a)(2)(B)()i); Pinho v. Gonzales, 432 F.3d 193, 208-10 (3d Cir. 2005) (same). A petitioner who seeks relief from removal bears the burden of proving that his conviction was vacated. 8 C.F.R. \\u00a7 1240.8(d); Syblis v. Att'y Gen., 763 F.3d 348, 352 (3d Cir. 2014).\\nRivas filed a motion for post-conviction relief based on alleged ineffective assistance of trial counsel. After three days of hearings, which included testimony -from trial counsel, the Commonwealth agreed to a settlement pursuant to which Rivas's convictions were vacated. Although- Rivas demonstrated that his convictions were vacated, the IJ and BIA concluded that Rivas failed to show they were vacated within the meaning of the immigration laws.\\nTo determine whether a vacated conviction is nonetheless a conviction for immigration purposes, the IJ must examine the state court record to identify the reasons why the state court vacated the conviction. Pinho, 432 F.3d at 215. To complete this task, the IJ \\\"must look first to the order [that vacated the conviction]. If the order explains the court's reasons for vacating the conviction, the [IJ] 's inquiry must end there. If the order does not give a clear statement of reasons, the [IJ] may look to the record before the court when the order was issued. No other evidence of reasons may be considered.\\\" Id. Thus, the IJ may rely only on reasons explicitly stated in the record and may not impute an unexpressed motive for vacating a conviction. See id.; Cruz, 452 F.3d at 244, 248 (holding that the BIA could reasonably determine that a conviction was vacated to allow a petitioner to avoid immigration consequences where a state prosecutor's letter stipulating the terms of a settlement agreement explicitly stated that the petitioner's scheduled deportation was a reason for the state's support for vacating the conviction). Put simply, \\\"[w]e will not . permit[ ] . speculation . about the secret motives of state judges and prosecutors.\\\" Pinho, 432 F.3d at 214-15.\\nHere, both the IJ and the BIA opined that the state court likely vacated Rivas's convictions to allow him to avoid the convictions's immigration consequences. To support this conclusion, the IJ relied on the facts that Rivas's trial counsel testified at the PCRA hearings that he did advise his client of the immigration consequences of a potential conviction, and that the state court denied Rivas's PCRA petition. However, these facts do not show that the state court vacated the convictions to allow Rivas to avoid their immigration consequences. Moreover, though trial counsel's testimony might have weakened Rivas's ineffective-assistance-of-counsel claim, the record fails to show that his counsel's alleged ineffectiveness was not the reason the convictions were vacated. We know only that the application to vacate was based on two ineffective-assistance-of-counsel claims stemming from the alleged failure of Rivas' counsel to advise him of the immigration consequences of his convictions -and advice to forgo appealing his convictions, and that the convictions were in fact vacated. See Pinho, 432 F.3d at 211-13 (holding that where the record shows that the state did not answer a pending ineffective-assistance-of-counsel claim before agreeing to settlement, this supports the conclusion that the settlement was reached as a result of the constitutional claim). In addition, the IJ did not point to any evidence undermining the conclusion that the Commonwealth settled because of Rivas's pending ineffectiveness claim with respect to his trial counsel's failure to advise him to appeal the convictions. In fact, the IJ repeatedly asserted that the state court record was not clear as to the reasons why the prosecutor agreed to settle Rivas's claim and why the court vacated his' convictions. Moreover, the BIA failed to conf\\u00edne itself to the factual record. Beyond adopting the IJ's findings, it also quoted the following passage wherein the state court addressed Rivas and discussed the vacatur of his convictions:\\n[B]ecause you know the consequences of what would have happened with the conviction that you had\\u2014 Everybody understands it, what would have happened over a possession conviction for POP. You have been given an incredible opportunity here, and I think it's the right opportunity, and I think it's the right result, but you need to understand, it is that opportunity. And if there [are] temptations, go the other way, criminal activity, drug use, anything, there's no margin for error. If you want to be here with your family and you want to move forward in your life and do things, then you need to understand that.\\nApp. I 5 (alterations, other than the ellipses, in original). The BIA found that these statements showed that the court vacated Rivas's convictions to allow him to avoid the resultant immigration consequences. In reaching this finding, however, it speculated as to the unexpressed motives of the state court\\u2014an analysis which we barred in Pinho. 432 F.3d at 215. It is not plain in the above passage that the consequences of convictions to which the court refers are immigration consequences, as opposed to penal consequences flowing from a conviction. Moreover, even if the passage addresses the immigration consequences of the convictions, it does not indicate the reasons why the court vacated the convictions and does not show that the court vacated the convictions because of those consequences. Thus, like .the IJ, the BIA erred in failing to restrict itself to the factual record and impermissibly speculated about the \\\"secret motives of state judges and prosecutors.\\\" Pinho, 432 F.3d at 215.\\nIn sum, Rivas met his burden to show that his convictions were vacated for purposes of the immigration laws, and the record does not show that Rivas's convictions were vacated to avoid their immigration consequences.\\nB\\nThe BIA also found-that even if Rivas's convictions had been vacated on substantive grounds, he nonetheless stood \\\"convicted\\\" for purposes of the immigration laws under the terms of the deferred adjudication agreement. Specifically, it found that since the state court's order vacating Rivas's convictions was conditioned on his stipulating to all of the state's evidence against him for the underlying convictions, and since the order imposed conditions that restricted Rivas's liberty, he stood \\\"convicted\\\" for purposes of the INA. See 8 U.S.C. \\u00a7 1101(a)(48)(A) (stating that a petitioner is \\\"convicted\\\" under the INA if he has \\\"admitted sufficient facts to warrant a finding of guilt\\\" and \\\"the judge has ordered some form of.punishment, penalty, or restraint on the alien's liberty-to be imposed\\\"). We need not decide whether the deferred adjudication agreement could render Rivas \\\"convicted\\\" under the INA since basing Rivas's removal on his deferred adjudication would violate his due process rights.\\n\\\"It is well established, that if an alien is a lawful permanent resident of the United States and remains physically present thereHe may not be deprived of his life, liberty or property without due process of law.\\\" Kwong Hai Chew v. Colding, 344 U.S. 590, 596, 73 S.Ct. 472, 97 L.Ed. 576 (1953). Essential to the due process rights of a noncitizen permanent resident is that \\\"before his expulsion[,] he is entitled to notice of the nature of the charge and a hearing at least before an executive or administrative tribunal.\\\" Id. at 597, 73 S.Ct. 472; see also United States v. Torres, 383 F.3d 92, 104 (3d Cir. 2004) (citing Kwong Hai Chew and reiterating that an alien in removal proceedings has a due process- right to, among other things, \\\"notice of the charges against him\\\").\\nThe INA sets forth the notice that must be given to an alien before removal proceedings can commence:\\nIn removal proceedings under section 1229a of this title, written notice . shall be given in person to the alien . specifying the following:\\n(A) The nature of the proceedings against the alien.\\n(B) The legal authority under which the proceedings are conducted.\\n(C) The acts or conduct alleged to be in violation of law.\\n(D) The charges against the alien and the statutory provisions alleged to have been violated.\\n8 U.S.C. \\u00a7 1229(a)(1); see Choeum v. I.N.S., 129 F.3d 29, 38-39 (1st Cir. 1997) (holding that the due process right to notice owed to a noncitizen permanent resident charged with removability is coextensive with the notice required by \\u00a7 1229(a)(1)).\\nThe only Notice to Appear that DHS served upon Rivas specified that he was charged with removability on the basis of two factual predicates: First, \\\"[y]ou were, on September 26, 2013, convicted in the Municipal Court at Philadelphia for the offense of [i]ntentional possession of a controlled substance by person not registered, to wit PCP, in violation of Pa. C.S.A Title 35 Section 780-113 subsection A16,\\\" A.R. 571. Second, \\\"[y]ou were, on September 26, 2013, convicted in the Municipal Court at Philadelphia for the offense of. [p]urchase/receipt of controlled substance by unauthorized person, to wit: PCP, in violation of Pa. C.S.A Title 35 Section 780-113 subsection A19.\\\" A.R. 571. The Government never lodged additional immigration charges against Rivas. See 8 C.F.R, \\u00a7 1240.10(e) (\\\"At any time during the proceeding, additional or substituted charges of inadmissibility and/or deportability and/or factual allegations may be lodged by the Service in writing.\\\"). As a result, Rivas never received notice charging him as removable on the basis of the terms of the 2015 deferred adjudication agreement, entered almost two years after the convictions identified in the Notice to Appear.\\nConsequently, the BIA's finding that Rivas's motion to terminate removal proceedings could be denied based on the deferred adjudication contravenes \\u00a7 1229(a)(1)(c)'s requirement that the alien be given notice of \\\"[t]he acts or conduct alleged to be in violation of law.\\\" To remove Rivas on the basis of a deferred adjudication in 2015 would base his removal on an entirely different factual ground from that set forth in the Notice to Appear and would violate Rivas's due process rights to notice of the bases for his removal.\\nIll\\nFor the foregoing reasons, we will grant Rivas's petition for review.\\n. The IJ had jurisdiction under 8 C.F.R. \\u00a7 1240.1(a), and the BIA had jurisdiction pursuant to 8 C.F.R. \\u00a7 1003.1(b)(3). Although we generally lack jurisdiction \\\"to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in [\\u00a7 1227(a)(2)(B) ],\\\" we have jurisdiction to review an order of removal to the extent it raises \\\"constitutional claims or questions of law.'' 8 U.S.C. \\u00a7 1252(a)(2)(C)-(D). Consequently, we have jurisdiction to determine \\\"whether, as a matter of law, the disposition of [Rivas's] Pennsylvania criminal charge constitutes a 'conviction' for immigration purposes.\\\" Frias-Camilo v. Att'y Gen., 826 F.3d 699, 702 n.4 (3d Cir. 2016) (citation omitted). Since the BIA's opinion is the \\\"final order,\\\" this Court's review is typically confined to the BIA's opinion. Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). Where, as here, the BIA expressly adopts the IJ's opinion, this Court also reviews that opinion to the extent the BIA adopted it. Sandie v. Att'y Gen., 562 F.3d 246, 250 (3d Cir. 2009).\\n. The INA defines \\\"conviction\\\" as follows:\\n(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and\\n(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed,\\n8 U.S.C. \\u00a7 1101(a)(48)(A).\\n. Contrary to the Government's argument, Rumierz v. Gonzales, 456 F.3d 31 (1st Cir. 2006), does not apply to Rivas's vacatur. There, because the petitioner's motion for post-conviction relief did not specify any substantive reasons to vacate his conviction, the court held that the petitioner could not show that his conviction was vacated on substantive grounds where it was vacated pursuant to an agreement and the record was otherwise silent as to the reason for the vacatur. Id In contrast, Rivas's motion for post-conviction relief did specify substantive grounds upon which he challenged his convictions, and so Rumierz is.inapplicable.\\n. Rivas argues that the DHS waived its right to rely on the deferred adjudication as a basis for removal. Although he casts this argument in terms of waiver, the real complaint is that he did not receive notice that he might be removed on this ground. Because his brief repeatedly states that the Notice to Appear charged him as removable on the basis of the Pennsylvania convictions and that by holding him removable on the basis of the deferred adjudication agreement the BIA \\\"created an .entirely new reason for upholding the IJ's decision,\\\" he has in essence asserted that his due process - rights were violated. Petitioner Br. at 3.\\n. If the immigration authorities wish to pursue Rivas's removal based on an assertion that he stands \\\"convicted\\\" of a controlled substance offense as a result of the terms of his deferred adjudication, then they can initiate removal proceedings anew by serving notice to Rivas stating the grounds upon which he is charged with removability. Duhaney v. Att'y Gen., 621 F.3d 340, 349 (3d Cir. 2010) (\\\"Although there are common elements of fact between the two removal proceedings, the critical acts and the necessary documentation were different.... Accordingly, we hold that the doctrine of res judicata did not bar the Government from lodging additional charges of removability after Duhaney s 2000 conviction was vacated.\\\"). Nothing herein constitutes a view as to whether such proceedings should be commenced or would succeed.\"}"

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+"{\"id\": \"12273508\", \"name\": \"HIGHLAND CDO OPPORTUNITY MASTER FUND, L.P., Plaintiff, v. CITIBANK, N.A., Citigroup Global Markets Inc., Citigroup Global Markets Limited, and Citigroup Financial Products Inc., Defendants; Citibank, N.A., Citigroup Global Markets Inc., Citigroup Global Markets Limited, and Citigroup Financial Products Inc., Counterclaim Plaintiffs, v. Highland CDO Opportunity Master Fund, L.P., Counterclaim Defendant, and Highland CDO Opportunity Fund GP, L.P., and Highland Capital Management, L.P., Additional Defendants to Counterclaim\", \"name_abbreviation\": \"Highland CDO Opportunity Master Fund, L.P. v. Citibank, N.A.\", \"decision_date\": \"2017-09-01\", \"docket_number\": \"12 Civ. 2827(NRB)\", \"first_page\": \"716\", \"last_page\": \"735\", \"citations\": \"270 F. Supp. 3d 716\", \"volume\": \"270\", \"reporter\": \"Federal Supplement 3d\", \"court\": \"United States District Court for the Southern District of New York\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:41:04.419799+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HIGHLAND CDO OPPORTUNITY MASTER FUND, L.P., Plaintiff, v. CITIBANK, N.A., Citigroup Global Markets Inc., Citigroup Global Markets Limited, and Citigroup Financial Products Inc., Defendants. Citibank, N.A., Citigroup Global Markets Inc., Citigroup Global Markets Limited, and Citigroup Financial Products Inc., Counterclaim Plaintiffs, v. Highland CDO Opportunity Master Fund, L.P., Counterclaim Defendant, and Highland CDO Opportunity Fund GP, L.P., and Highland Capital Management, L.P., Additional Defendants to Counterclaim.\", \"head_matter\": \"HIGHLAND CDO OPPORTUNITY MASTER FUND, L.P., Plaintiff, v. CITIBANK, N.A., Citigroup Global Markets Inc., Citigroup Global Markets Limited, and Citigroup Financial Products Inc., Defendants. Citibank, N.A., Citigroup Global Markets Inc., Citigroup Global Markets Limited, and Citigroup Financial Products Inc., Counterclaim Plaintiffs, v. Highland CDO Opportunity Master Fund, L.P., Counterclaim Defendant, and Highland CDO Opportunity Fund GP, L.P., and Highland Capital Management, L.P., Additional Defendants to Counterclaim.\\n12 Civ. 2827(NRB)\\nUnited States District Court, S.D. New York.\\nSigned August 31, 2017\\nFiled 09/01/2017\\nJeffrey T. Prudhomme, Katy Sheppard, Kennedy L. Barnes, Kenneth Neil Hickox, Kristen A.. Miller Reinsch, Michael P. Ai-gen, Paul B. Lackey, Ross Anthony Mortil-laro, Scott Hershman, Lackey Hershman, LLP, Dallas, TX, Kieran M. Corcoran, Lackey Hershman, LLP, New York, NY, for Plaintiff.\\nMarshall Howard Fishman, Goo\\u2019dwin Procter, LLP, Elizabeth M. Zito, Robert John McCallum, Freshf\\u00edelds Bruckhaus Deringer LLP, New York, NY, for Defendants.\", \"word_count\": \"9744\", \"char_count\": \"58690\", \"text\": \"MEMORANDUM AND ORDER\\nNAOMI REICE BUCHWALD, UNITED STATES DISTRICT JUDGE\\nBefore the Court are cross-motions for summary judgment on counterclaim plaintiff Citi's counterclaims and veil piercing claims. Citi seeks to hold counterclaim defendant Highland CDO Opportunity Master Fund, L.P. (\\\"CDO Fund\\\") liable for a $24 million deficit and for indemnif\\u00ed-cation in connection with certain credit default swap agreements. Citi also seeks to hold counterclaim defendants Highland Capital Management, L.P. (\\\"HCM\\\") and Highland CDO Opportunity Fund GP, L.P. (\\\"Highland GP,\\\" and together with CDO Fund and HCM, \\\"Highland\\\") jointly and severally liable for any judgment awarded against CDO Fund under various . veil piercingtheories.\\nFor the reasons stated below.we (1) grant Citi's motion seeking to hold CDO Fund liable on Citi's counterclaims; (2) deny Citi's motion seeking to hold HCM jointly and severally liable with CDO Fund; and (3) grant Highland's motion to dismiss HCM.\\nBACKGROUND\\nI. Overview\\nThis lawsuit arises out of a margin call issued by Citi in December 2008 in connection with certain credit default swap transactions entered into between CDO Fund and Citi. See M & O (ECF No. 150) at 2, 6-8, 28-31. After CDO Fund failed to meet the December 2008 margin call, Citi declared an event of default and seized certain assets that CDO Fund had posted to collateralize the credit default swaps. Id. at 12-22. Citi subsequently auctioned off the collateral, Id. at 23-28.\\nCDO Fund sued Citi,-claiming (1) that Citi breached the agreements governing the credit default swaps because its margin calls were based on valuations that were commercially unreasonable and were made in bad faith and (2) that Citi's subse quent auctioning of the collateral violated Article 9 of the UCC. See Compl. (ECF No. 1).\\nCiti counterclaimed, suing CDO Fund, Highland GP (CDO Fund's general partner), and HCM (CDO Fund's management company). Citi sought to recover a $24 million deficit it claimed that CDO Fund still owed under the agreements governing the credit default swaps and sought indemnification from the counterclaim defendants for all losses and costs that Citi incurred as a result of CDO Fund\\u00eds breach. See Citi's Am. Countercl. (ECF No. 43).\\nAfter discovery, the parties cross-moved for summary judgment. See ECF Nos. 88, 119. In March 2016 we issued a Memor\\u00e1n-dum and Order (1) denying Highland's motion in its entirety; (2) granting Citi's motion that it did not breach the credit default swap agreements when it seized CDO Fund's collateral in December 2008; (3) granting Citi's motion that its sale of collateral in March 2009 did not violate the UCC; and (4) denying Citi's motion that the December 2008 collateral sale did not violate the UCC, thereby permitting CDO Fund's UCC claim to proceed with respect to that collateral. See M & O (ECF No. 150). Citi did not move on its counterclaims, which sought from the counterclaim defendants the recovery'of a $24 million deficit and indemnification for Citi's costs and losses.\\nIn our March 2016 Memorandum & Order, we also noted that the record was incomplete on whether Citi could prevail against HCM under a veil piercing theory. Specifically, we noted that the record was incomplete on (1) the extent of CDO Fund's contacts with its place of incorporation (Bermuda), which is relevant to the choice-of-law analysis for the veil piercing issue, and (2) Citi's contention that it would need to pierce at least one Highland-related entity before reaching HCM. Id. at 67-68.\\nAccordingly, we permitted limited supplemental discovery and permitted a second round of summary judgment motions on the veil piercing issue. Before us now are the parties' cross-motions for summary judgment on Citi's attempt to hold HCM liable for CDO Fund's obligations. See ECF Nos. 188,197.\\nII. Highland Entities\\nThere are numerous Highland-affiliated companies that are relevant to the present motions. Defendant CDO Fund is the original plaintiff and was the counterparty to Citi's credit default swaps. Compl. (ECF No. 1); Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 12. It was a fund structured by HCM to invest in collateralized debt obligations (\\\"CDOs\\\") and collateralized loan obligations (\\\"CLOs\\\"). M & O (ECF No. 150) at 5. It invested principally in CLO equity and mezzanine tranches, the two lowest priority tranches. Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 11.\\nCDO Fund was organized as an exempted limited partnership under Bermuda law. Id. \\u00b6 10. It had neither its own employees nor office, and instead was managed entirely by HCM out of HCM's Texas office. Id. \\u00b6 15. James Dondero\\u2014HCM's co-founder, president, and \\\"dominant partner,\\\" id. \\u00b6 4; McCallum Decl. (ECF No. 199), Ex. 20 at 18:6\\u2014was CDO Fund's principal portfolio manager, Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 17.\\nTodd Travers\\u2014an HCM senior partner who ran its'\\\"CLOs and separate managed accounts\\\" business unit and who reported to- Dondero, McCallum Decl. (ECF No. 199), Ex. 89 at 21:6-24\\u2014was CDO Fund's senior portfolio manager, Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 28.\\nCDO Fund had two limited partners known as its \\\"feeder\\\" funds. Highland CDO Opportunity Fund, L.P. was the \\\"onshore feeder.\\\" Highland's 56.1 (ECF No. 189) \\u00b64. It was organized as a limited partnership under Delaware law, id., and was managed, by HCM, .see Citi's 56.1 (ECF No. 208, Ex. B) \\u00b6 47.\\nHighland CDO Opportunity Fund, Ltd. was the \\\"offshore feeder.\\\" Highland's 56.1 (ECF No. 189) \\u00b6 5. It was organized as a corporation under Bermuda law, kh, and was also managed by HCM, Citi's 56.1 (ECF No. 203, Ex. B) \\u00b635. It was designed primarily to provide favorable tax treatment for foreign investors in CDO Fund. Highland's 56.1 (ECF No. 189) \\u00b6 5.\\nHCM was a special limited partner of the onshore feeder and a voting shareholder of the offshore feeder. Id. \\u00b6 13. Dondero was a director and president of the offshore feeder, Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 34, and the \\\"organizational\\\" limited partner of the onshore feeder, id. \\u00b6 46. Travers was the senior portfolio manager for the two feeder funds. Id. \\u00b6 28.\\nCDO Fund's general partner was defendant Highland GP. Id. \\u00b6 52. It was organized as a limited partnership under Delaware law. Id. Other than de minimis cash,, its sole asset was its partnership interest in CDO Fund. Id. \\u00b6 53. It had no employees or office, id., and was managed by HCM, id. \\u00b6 54.\\nHighland CDO Opportunity Fund GP, L.P.'s general partner was Highland CDO Opportunity GP, LLC. Id. \\u00b6 57. It was organized as a limited liability company under Delaware law. Id. Its sole member was HCM. Id. \\u00b6 58. It had no offices or employees of its own, id., and appears to have been managed by HCM. Other than de minimis cash, its sole asset was its partnership interest in Highland GP. Id.\\nIII. The HFP Notes\\nA central element of Citi's veil piercing claims involves certain note's issued in September 2008 by Highland Financial Partners, L.P. (\\\"HFP\\\"), a hedge fund established and managed by HCM. Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 60, 63. Travers was HFP's CEO and president, and Dondero was one of its directors. Id. \\u00b6 62.\\nHFP faced liquidity concerns going back to April 2008. McCallum Decl. (ECF No. 199), Ex. 120 at 110:14-17. In mid-2008, HFP sought to conduct a private placement to raise $200 million so that HFP could \\\"continue operations as normal\\\" under the belief that $100 million would be \\\"inadequate to fully return to normal operations.\\\" Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 108, 109. The private offering was completed in July 2008, but only raised approximately $97 million; Highland funds contributed approximately $85 million of the total, including $15 million & cash contributed by CDQ Fund. Id. \\u00b6 110; McCallum Decl. (ECF No. 199), Ex. 98 at CD000082727.082.\\nIn September 2008, HFP issued $316 million in long term \\\"senior secured notes\\\" backed by CLOs and life settlement contracts (the \\\"HFP Notes\\\"). Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 128, 130; McCallum Decl. (EOF No. 199), Ex. 17. The income received on the assets backing the notes was to be pooled and distributed to note holders on a quarterly basis; however, HFP had the option of satisfying the distributions in cash or in newly-issued notes (the \\\"payment-in-kind\\\" option). Id., Ex. 17 at CITI-HL-00008157.\\nCDO Fund purchased $47.7 million of the HFP Notes in. exchange for $52.8 million in assets and the forgiveness of a $5.1 million prior obligation. Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 131-32.\\nIV. Citi's October Margin Call\\nIn the fall of 2008, Citi and CDO Fund were parties to two financing arrange-' ments: (1) a secured loan facility with a maturity date of December 1, 2008 (the \\\"Loan Facility\\\"); and (2) a series'of credit default swaps with an aggregate noti\\u00f3nal value of $59 million, M & O (ECF No. 150) at 6. \\\"\\nUnder the credit default, swaps .agreements, CDO Fund posted initial cash collateral (or margin) based on a percentage of Citi's exposure. Id. at 8. If the value of the posted collateral decreased relative to Citi's exposure, CDO, Fund was required to post additional collateral. Id. at 9. Citi's permission was required for CDO Fund to post collateral other than cash and treasury bonds. Id. at 8.\\nOn October 17, 2008, Citi issued a1 $17.6 million margin call to CDO Fund. Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6159. The parties eventually agreed that CDO Fund would satisfy the margin call by pledging its remaining HFP Notes to Citi as collateral, id., with the notes valued at 40% of their $21.4 million face value, or approximately $8.6 million, id. \\u00b6 168; Highland's Opp. 56,1 (ECF No. 209) \\u00b6 168; McCallum Decl. (ECF No. 199), Ex. 3 at CITI-HL-00052734.\\nThe agreement was memorialized on November 25, 2008 (the \\\"November 25 Agreement\\\"). As part of the agreement, HCM also guaranteed CDO Fund's obligation to pay Citi the remaining $5 million balance on the Loan Facility and CDO Fund agreed to meet future margin calls in cash. Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 167. \\u2022\\nThe November 25 Agreement also contained a provision addressing the \\\"pay-raent-in-kind\\\" option on the HFP Notes under which HFP had the option to pay quarterly distributions in newly-issued notes rather than in cash. Under the November \\\"25 Agreement, the parties agreed that as long as Citi held any of the HFP Notes \\u00fander a pledge from CDO' Fund,\\nif HFP has cash available on a Quarterly Payment Date in an amount equal or greater to the Quarterly ' Payment Amount, [HCM] will recommend to the board of directors and management of HFP, to the extent consistent with HCM's fiduciary duties, that HFP not exercise the [payment-in-kind] Option on the Notes for such Quarterly Payment Date.\\nCiti's 56.1 (ECF No. 203, Ex. B) \\u00b6 167; Highland's Opp. 56.1 (ECF No. 209) \\u00b6 167.\\nV. . Citi's December 2008 Margin Call\\nOn December 12, 2008; Citi issued an-oth\\u00e9r margin call for $20 million. Citi's 66.1 (ECF No. 203, Ex. B) \\u00b6 93. CDO Fund did not meet the call.\\nThe parties subsequently discussed possible options by which CDO Fund could meet the December margin call, see, e.g., id. \\u00b6 97, including a \\\"standstill\\\" agreement under which CDO Fund would post additional collateral to satisfy its obligations under the margin call, id. \\u00b6 99. Citi emailed HCM a draft of the agreement on December 22, 2008, stating, \\\"Guys, we need to get this done by tomorrow at the latest. We also need the collateral transferred asap.\\\" Id. \\u00b6 100.\\nTwo days later, on December 24, 2008, HCM informed Citi by email that it would not be able to reach an agreement; HCM explained that, in light of Moody's and S & P downgrading certain CLOs, \\\"the terms and conditions contained in your recent proposal are no longer practical for [HCM] and [CDO Fund]. Although the previously contemplated solutions involving additional monies dr guarantees are not possible we would like to explore terming out the financing by posting additional collateral.\\\" McCallum Decl. (ECF No. 199), Ex. 86.\\nLater that day, Citi declared an event of default under the credit default swap agreements and foreclosed on CDO Fund's collateral for failure to meet the December margin call. Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 106.\\nVI. Unwinding of the HFP Notes\\nIn March 2009 the HFP Notes were unwound, with Citi surrendering its HFP Notes in exchange for certain assets that served- as collateral on the notes. Highland's 56.1 (ECF No. 189) \\u00b6 60-61. As Par^ ^he unwinding of the notes, Citi also agreed.to release all claims related to ^he HFP Notes. Id. \\u00b6 61-63.\\nDISCUSSION\\nI. Summary Judgment Standard\\nSummary judgment is appropriate when the moving party \\\"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 fact is 'material' when it might affect the outcome of the suit under governing law.\\\" McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotation marks 'omitted). A genuine dispute exists if a reasonable factfinder could decide in the nonmoving party's favor. Id.\\nA court must resolve all ambiguities and draw all justifiable factual inferences in the nonmoving party's -favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party must \\\"make a prima facie showing that it is entitled to summary judgment.\\\" Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party puts forth such a showing, then there is no issue for trial unless the party opposing summary judgment presents \\\"sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.\\\" Liberty Lobby, 477 U.S. at 249, 106 S.Ct. 2505.\\nII. HCM Is Not Liable on Citi's Counterclaims\\nCiti advances various theories under which it seeks to hold HCM liable for any judgment awarded against-CDO Fund: (1) HCM is liable under a traditional -veil piercing theory; (2) HCM is liable as the \\\"equitable\\\" owner of CDO Fund'; (3).HCM is liable as CDO Fund's \\\"de facto\\\" general partner; and (4) HCM is liable as CDO Fund's \\\"de facto\\\" limited partner.\\nHowever, before we reach these theories, we must address the law that governs Citi's veil piercing claims.\\nA. Choice of Law Governing Veil Piercing Claims\\nThe parties agree that even though CDO Fund is organized in Bermuda, Bermuda law should not apply because CDO Fund had no meaningful connections with that jurisdiction. See Highland's MSJ (ECF No. 190) at 5; Citi's MSJ (ECF No. 201) at 10. Instead, Highland argues that Texas law applies, while Citi argues for New York law.\\nUnder New York's choice-of-law rules, \\\"the first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved.\\\" GlobalNet Financial.Com, Inc. v. Frank Crystal & Co., 449 F.3d 377, 382 (2d Cir. 2006) (quoting In re Allstate Ins. Co., 81 N.Y.2d 219, 223, 597 N.Y.S.2d 904, 613 N.E.2d 936 (1993)).\\nA conflict exists here. To pierce a corporate veil under Texas law, a plaintiff must establish an \\\"actual fraud,\\\" whereas he need only establish a fraud or wrong under New York law. Compare Ocram, Inc. v. Bartosh, 01-11-00793-CV, 2012 WL 4740859, at *2 (Tex. App.\\u2014Houston [1st Dist.] Oct. 4, 2012, no pet.) (finding that Texas statute permits \\\"the use of alter ego or other similar theory, to impose liability on a holder 'if the obligee demonstrates that the holder . caused the corporation to be used for the purpose of perpetrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the holder'\\\" (citing Tex. Bus. Orgs. Code Am. \\u00a7 21.223(b))), with JSC Foreign Econ. Ass'n Technostroyexport v. Int'l Dev. & Trade Servs., Inc., 386 F.Supp.2d 461, 476 (S.D.N.Y. 2005) (\\\"[Pjlaintiff is not required to demonstrate fraud for the Court to pierce the corporate' veil; under New York law, the plaintiff must show that the alleged dominator's 'domination was used to commit a fraud or wrong against the plaintiff which resulted in the plaintiffs injury.' \\\" (quoting Morris v. N.Y. State Dep't of Taxation & Fin., 82 N.Y.2d 135, 141, 603 N.Y.S.2d 807, 623 N.E.2d 1157, 1160-61 (1993)).\\nHaving found that a conflict exists, the next step is to apply New York's \\\"interest analysis\\\" test. New York's interest analysis \\\"is a flexible approach intended to give controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation.\\\" Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 739 F.3d 45, 48-49 (2d Cir. 2013) (internal quotation marks omitted).\\nThe test is applied differently depending on whether the rules in question are \\\"conduct-regulating,\\\" ie., \\\"rules that people use as a guide to governing their primary conduct,\\\" or \\\"loss-allocating,\\\" ie., \\\"rules that prohibit, assign, or limit liability after the tort occurs.\\\" Id. at 49 (internal quotation marks omitted).\\nWhen \\\"conduct-regulating laws are at issue, the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders.\\\" GlobalNet Financial.Com, Inc., 449 F.3d at 384-85 (internal quotation marks omitted). \\\"If the conflict involves allocation of losses, the site of the tort is less important, and the parties' domiciles are more important.\\\" Id.\\nAs an initial matter, it is not entirely clear whether veil piercing is a conduct- or loss-regulating rule, something neither party addresses and which other courts do not appear to have addressed. We find that veil piercing is best treated as a species of fraud or similar tort and therefore is a conduct-regulating rule. Accordingly, the place where the veil piercing \\\"occurred\\\" is the most important factor under the interest analysis test. Under New York law, \\\"[a] tort occurs in the place where the injury was inflicted, which is generally where the plaintiffs are located.\\\" Lyman Commerce Sols., Inc. v. Lung, No. 12-CV-4398, 2013 WL 4734898, at *4 (S.D.N.Y. Aug. 30, 2013); see also Cromer Fin. Ltd. v. Berger, 137 F.Supp.2d 452, 492 (S.D.N.Y. 2001) (\\\"[F]or claims based on fraud, a court's 'paramount' concern is the locus of the fraud, that is, the place where the injury was inflicted, as opposed to the place where the fraudulent act originated.\\\" (internal quotation marks omitted)).\\nApplying the above rules, we find that New York has the greatest interest in applying its law to the veil piercing claims at issue here. Three of the four Citi counterclaim plaintiffs have their principal places of business in New York, including Citibank, N.A., who was the counterparty to the credit default swap agreements giving rise to the counterclaims. M & O (ECF No. 150) at 7-8 & n.2. Accordingly, the relevant injury here occurred in New York. Moreover, various agreements relevant to Citi's claims are governed by New York law, including the underlying credit default swap agreements, the agreement under which the HFP Notes were issued, and the November 25 Agreement between CDO Fund and Citi. Id. at 8. Thus, New York has a significant interest in ensuring that parties who contract under New York law cannot escape liability to a New York counterparty by abusing the corporate form. See, e.g., UBS Sec. LLC v. Highland Capital Mgmt., L.P., 30 Misc.3d 1230(A), 924 N.Y.S.2d 312 (Sup. Ct. N.Y. Cty. Mar. 1, 2011) (finding New York law applied to veil piercing claims against [Highland affiliate] SOHC where \\\"contracts between SOHC and UBS at issue . were negotiated through counsel in New York and, by their terms, are governed by the law of New York\\\"), aff'd in part, modified in part, 93 A.D.3d 489, 940 N.Y.S.2d 74 (1st Dep't 2012).\\nTexas's interests, in contrast, are significantly more limited. While the parties agree that HCM managed CDO Fund from its office in Dallas, Texas, Citi's-56.1 (ECF No. 203, Ex. B) \\u00b6 15, HCM is incorporated in Delaware, not Texas, id. \\u00b6 1, and there is no injury that is claimed, to have occurred in Texas, cf. Highland MSJ (ECF No. 190) at 6-7. Thus, the only interest that Texas has in this litigation is regulating the conduct of a foreign company doing business within Texas when the conduct injures parties outside of Texas. That does not outweigh New York's significant interests in the litigation.\\nAccordingly, we find that New York's law applies to Citi's attempt to pierce CDO Fund's veil.\\nB. HCM Is Not Liable Under a Veil Piercing Theory\\nCiti first argues that HCM can be held liable under a traditional veil piercing theory.\\nAs an initial matter, Highland argues that veil piercing is inapplicable in the context of a limited partnership because a general partner is always liable for the partnership's obligations to third parties. Whatever the merits of that argument, we need not reach it here because we find that Citi has not established the elements of.a veil piercing claim regardless of whether the doctrine is applicable to limited partnerships.\\nTo pierce the corporate veil under New York law, a plaintiff must establish (1) \\\"that the owner exercised complete domination oyer the corporation with respect to the transaction at issue\\\" and (2) \\\"that Such domination was used to commit a fraud or wrong that injured the party seeking to pierce the veil.\\\" Thrift Drug, Inc. v. Universal Prescription Adm'rs, 131 F.3d 95, 97 (2d Cir. 1997) (internal quotation marks omitted).\\n1. Domination\\nThe Second Circuit has identified ten factors to consider in determining whether an entity exercises complete domination over another: '\\n(1) the absence of the formalities and paraphernalia that are part .and parcel of the corporate existence, ie., issuance of stock, election of directors, keeping of corporate records and the like, (2) inadequate capitalization, (3) wheth\\u00e9r funds are put in and taken out of the corporation for personal rather than corporate purposes, (4) overlap in ownership, officers, directors, and personnel, (5) common office space, address and telephone numbers of corporate entities, (6) the amount of business discretion displayed by the allegedly dominated corporation, (7) whether the related corporations deal with the dominated corporation at arms length, (8) whether the corporations are treated as independent profit centers, (9)the payment or guarantee of debts of the dominated corporation by other corporations in the group, and (10) whether the corporation in question had property that was used by other of the corporations as if it were its own.\\nWm. Passalacqua Builders, Inc. v. Resnick Developers S., Inc., 933 F.2d 131, 139 (2d Cir. 1991).\\nWe have no difficulty finding that HCM exercised complete control over CDO Fund based on the following facts, which we find to be undisputed:\\n\\u2022 CDO Fund did not have, its own offices or employees; its operations were managed entirely by HCM personnel; Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 15.'\\n\\u2022 HCM managed CDO Fund pursuant to an investment-manager agreement that required HCM's .principals to \\\"provide full-time investment management services to [CDO Fund]\\\" and \\\"direct the investment decisions of [CDO Fund]\\\" either directly or indirectly through HCM. Highland's 56.1 (ECF No. 189) \\u00b6 43.\\n\\u2022 HCM and its personnel also managed both of CDO Fund's feeder funds, CDO Fund's general partner, and that entities general partner. Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 35, 47, 54. None of those entities had their own offices (with the exception of the offshore feeder) or employees. Id. \\u00b6 36, 51, 53, 58.\\n\\u2022 Through a web of intermediaries, HCM and its personnel held direct ownership interests in every CDO Fund-related entity: HCM-was (1) a limited partner of CDO Fund's general partner, Highland's 56.1 (ECF No. 189) \\u00b6 15; (2) the sole owner of that entity's general partner (Highland CDO Opportunity GP, LLC), Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 58; (3) a special limited partner of the onshore feeder, id., \\u00b6 46; and (4) the sole voting shareholder of the offshore feeder, id. \\u00b6 34.\\n\\u2022 James Dondero\\u2014HCM's co-founder, president, and \\\"dominant partner,\\\" id. \\u00b6 4; McCallum Decl. (ECF No. 199), Ex. 20 at 18:6\\u2014was (1) the principal portfolio manager to CDO Fund, Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 17; (2) a director and president of the offshore feeder, id. \\u00b6 34; and (3) the \\\"organizational\\\" limited partner of the onshore feeder, id. \\u00b6 46.\\n\\u2022 As a result of HCM's and Dondero's management and ownership roles, Dondero was the sole signatory to CDO Fund's Articles of Limited Partnership, executing it on behalf of the fund's general partner and the fund's two limited partners. See McCallum Decl. (ECF No. 199), Ex. 29. Similarly, Dondero was the sole signatory to the investment management agreement between HCM and CDO Fund. See id., Ex. 32.\\n\\u2022 Dondero testified that he never lost \\\"controlling authority over [CDO Fund's] general partner, the limited partner, or the fund itself as a result of the addition of new investors.\\\" Id., Ex. 20 at 160:22-161:2.\\n\\u2022 Todd Travers\\u2014an HCM senior part- , ner who ran its \\\"CLOs and separate ' managed accounts\\\" business unit and who reported to Dondero, id.,,Ex. 89 at 21:6-24\\u2014was also the senior portfolio manager for CDO Fund and the two feeder funds, Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 28. He testified that he \\\"viewed the domestic feeder and the offshore feeder and the mas- \\u2022 ter fund as one master fund.\\\" McCal-lum Decl. (ECF No. 199), Ex. 89 at 37:21-38:11.\\n\\u2022 CDO Fund did not produce audited financial results for 2008 (although it did for 2007). Citi's 56.1 (ECF No. 203,. Ex. B) \\u00b6 26; Highland's MSJ (ECF No. 190) at 14. Highland claims they were not produced because by April 2009, which is when they would have been prepared, the fund was being wound down. See Highland's Opp. MSJ (ECF No. 208) at 14.\\n\\u2022 After September 30, 2008, HCM ceased to keep a capital roll record on behalf of CDO Fund and the feeder funds because \\\"it was no longer worth expending the fnoneys\\\" to do , so. Citi's 56.1 (ECF No. 203, ex. B) \\u00b6 32.\\n\\u2022 Funds were often transferred directly from HCM to CDO Fund without passing through the feeder funds. See McCallum Decl. (ECF No. 199), Ex. 47.\\n\\u2022 HCM repeatedly moved cash between itself and the various funds it managed, including CDO Fund, in order to provide liquidity during late 2008. Among other things, and as discussed further below, (1) HCM extended multiple cash loans to CDO Fund, see Highland's Opp. MSJ (ECF No. 208) at 14; Citi's Opp. 56.1 \\u00b6 37; McCallum Decl. (ECF No. 199), Exs. 44, 46, 48, 49, 50; (2) HCM had an affiliate cover a $5.1 million margin call on CDO Fund's behalf, see infra at 729; and (3) HCM drew on a personal loan from one of its principals, Mark Okada, to provide liquidity to CDO Fund, Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 82, 90.\\n\\u2022 Travers testified that when CDO Fund invested $15 million in HFP in July 2008, he did not \\\"think it was a decision based on a particular fund,\\\" but rather it was \\\"a global decision to help HCM and all of its affiliates as a combined entity.\\\" McCallum Decl. (ECF No. 199), Ex. 120 at 157:4-14.\\n\\u2022 CDO Fund's purchase of the HFP Notes in September 2008 was not an arm's length transaction. The notes were illiquid securities and were only ever purchased by and traded among HCM-managed funds. Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 140. Travers testified that no \\\"one ever obtained a true analysis of the transaction to confirm that it really did represent what an arm's-length transaction would have looked like\\\" and that he did not \\\"think an arm's-length transaction like that could have happened in that time frame.\\\" McCallum Decl. (ECF No. 199), Ex. 120 at 213:5-18. Travers also testified that it was \\\"[p]robably not\\\" \\\"a prudent investment [for CDO Fund] to loan money to HFP at that time\\\" as compared to \\\"doing just about anything else with its available cash or resources.\\\" Id. at 218:19-24. In addition, Dondero testified that by September 2008 HFP \\\"wouldn't have been able to get any financing under any terms.\\\" Id., Ex. 20 at 418:13-14.\\nWe find the above facts are sufficient to find that, as a matter of law, HCM dominated CDO Fund for purposes of the veil piercing analysis.\\n2. Wrong or Fraud\\nNevertheless, we find that Citi has not established that HCM used its domination of CDO Fund to perpetuate a fraud or wrong on Citi. Citi identifies three acts which it asserts constitute fraudulent or wrongful conduct: (1) HCM stripped cash and assets from CDO Fund prior to Citi's December margin call; (2) HCM diverted cash distributions on the HFP Notes that would otherwise have been available to CDO Fund to satisfy Citi's margin call; and (3) HCM fraudulently represented the value of the HFP Notes. We consider each in turn.\\na. Asset Stripping\\nCiti claims that in December 2008 HCM stripped CDO Fund of cash and assets that would have otherwise been available to satisfy Citi's $20 million December margin call. .\\nCiti- first identifies a transfer of $2.2 million in cash on December 15, 2008, from CDO Fund to Highland CLO Value Fund, a Highland affiliate that was managed by HCM and had no employees or offices of its own. Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 83; Highland's Opp. 56.1 (ECF No. 209) \\u00b6 83. However, the record shows that the transfer was a partial return of $3.5 million in cash that Highland CLO Value Fund had transferred to CDO Fund on December 2, 2008, just two weeks earlier. See McCallum Decl. (ECF No. 199), Ex. 47 (CDO Fund's cash flow spreadsheet recording the December 2, 2008, transfer as' a \\\"Transfer . for Pre-Funding of Trades\\\" and recording December 15, 2008, transfer as \\\"Return of Overpayment on Pre-Funded Trades\\\"); McCallum Deck (ECF No. 199), Ex. 65 (December 15, 2008, HCM emajl explaining that \\\"[e]m-bedded in [the initial transfer of] $3.5mm is the $2.241mm that needs to be returned to CLO Value Fund from CDO Fund. The $2.241mm represents a prefunded payment for bonds that were traded to RBS instead of CLO Value. CDO Fund must return the [$2.241mm in] cash since CLO Value did not receive the funds.\\\").\\nCiti next identifies $8.1 million in assets transferred out of CDO Fund around December 22, 2008. Of the total, CDO transferred $5.1 million in assets to Highland Special Opportunities Holding Company (\\\"SOHC\\\"), Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 103, a wholly-owned subsidiary of HFP, id. \\u00b6 68. As above, however, the record shows that the asset transfer\\u00edas to satisfy a preexisting obligation that CDO Fund owed SOHC. Specifically, SOHC had previously satisfied CDO Fund's obligation to cover 51% of a $10 million margin call (or $5.1 million) made by UBS on a separate loan facility. See McCallum D\\u00e9cl. (ECF No. 199), Ex. 71; id., Ex. 115 (December 16, 2008, HCM email explaining that \\\"[a]s presented in the 11/18/2008 board meeting materials, SOHC posted assets totaling $10mm market value on October 24th to satisfy a margin call on the UBS facility. The assets listed below represent CDO Fund's repayment of their share of that margin call, $5.1mm.\\\").\\nThe $8.1 million also consisted of $3 million in assets transferred from CDO Fund to HCM. Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 103. Again, however, the transfer was to satisfy a preexisting obligation owed by CDO Fund, namely a $3 million cash loan from HCM to CDO Fund made around October 24, 2008. See McCallum Deck (ECF No. 199), Ex. 71 at CD000081174 (noting that the transfer' was \\\"as payment for a loan provided by [HCM] to CDO Fund\\\"); id., Ex. 47 (CDO Fund's master cash flow spreadsheet recording a $3 million cash transfer from HCM to CDO Fund on October 24, 2008, as a \\\"Loan from HCMLP\\\"); Leventon Deck (ECF No. 191), Ex. A-22 ($3 million promissory note from CDO Fund to HCM dated October 24, 2008);; Oral Arg. Tr. at 37:5-22 (stating that asset transfer was to repay $3 million promissory note dated October 24,2008). - '\\nGiti next argues that even if the transfers to HGM and its affiliates were to-satisfy preexisting obligations, they still constitute a wrong for veil piercing purposes because CDO Fund was insolvent or near insolvency at the time of the transfers and therefore owed a fiduciary duty to its general creditors not to self-deal. Citi claims that .CDO Fund's repayment of loans to HCM and HCM affiliates violated this duty. Citi Opp. MSJ (ECF No. 213) at 4.\\n\\u2022 Putting aside factual questions of whether and when CDO Fund was insolvent or in the \\\"zone of insolvency,\\\", we find Citi's argument unpersuasive for- several reasons. First, despite giving Citi the .opportunity to submit supplemental.-briefing on the issue, Citi cites no authority applying \\u2022its fiduciary duty theory in the veil piercing context. Rather, the .cases, that Citi cites in support are all in the bankruptcy context, see In re Kingston Square Assocs., 214 B.R. 713, 735 (Bankr. S.D.N.Y. 1997); In re Hampton Hotel Inv'rs, L.P., 270 B.R. 346, 361 (Bankr. S.D.N.Y. 2001), which have limited applicability here.\\nIn contrast, there is case law\\u2014specifically in the context of fraudulent conveyances\\u2014finding that similar transfers do not constitute, a wrong for veil piercing purposes. New York law distinguishes between actual and constructive fraudulent conveyances, the former requiring intent \\\"to hinder, delay, or defraud either present or future creditors.\\\" Am. Federated Title Corp. v. GFI Mgmt. Servs., Inc., 126 F.Supp.3d 388, 401 (S.D.N.Y. 2015) (citing N.Y. Debt. & Cred. Law \\u00a7 276), reconsideration denied, No. 13-CV-6437 (KMW), 2016 WL 4290525 (S.D.N.Y. Aug. 11, 2016). In contrast, \\\"[c]onstruetively fraudulent conveyances under [New York.law] are defined exclusively by the objective conditions of the asset transfer at issue, without regard to the debtor's intent in making the transfer,\\\" Id. at 400.\\nHowever, New York courts have rejected the argument that constructive fraudulent transfers, even when made to a company's owners, constitute a per se wrong for veil-purpose-piercing purposes:\\n[ E]ven if a constructively fraudulent transfer has the effect of removing assets that could have been used to satisfy a corporation's obligations to other creditors, the transfer may not have been made with a deceitful or unjust purpose. Absent persuasive evidence of a culpable motive, therefore, a claim that is successful under [New York's constructive fraudulent conveyance statute] may not establish wrongdoing sufficient to justify veil-piercing.\\nId., at 405.\\nHere, the only evidence that Citi offers in support of an unjust motive is an email from December 22, 2008, in which HCM says that the $8.1 million asset transfer \\\"MUST SETTLE NO LATER THAN TOMORROW.\\\" McCallum Deck (ECF No. 199), Ex. 71 at CD0000881169. Citi argues that this email is evidence that HCM was attempting to strip the assets from CDO Fund in advance of the \\\"standstill\\\" agreement, which fell through sometime in the next two' days. However, the significance of the email is ambiguous, at best, and must be considered against the fact that the loans that were being repaid provided CDO Fund with much-needed li quidity in late-October and November 2008, which in turn redounded to Citi's benefit. Thus, we find the evidence is insufficient to establish that HCM transferred the assets in question with the intent to defraud Citi.\\nb. Diversion of HFP Note Cash -Distributions\\nIn addition to asset stripping, Citi alleges two wrongs related to the HFP Notes. Under the first theory, Citi claims that HCM diverted certain cash received on the underlying HFP Note assets, thereby preventing Citi from receiving the cash as a note holder. Specifically, Citi claims that HFP received at least $10 million in cash proceeds on the assets underlying the HFP notes, but used the cash \\\"to make required' payments on other short term financing facilities\\\" and also diverted cash from HFP to HCM and Dondero.\\nAs Citi concedes, it was not contractually entitled to receive cash distributions on the HFP Notes because HFP had . the option of paying distributions in kind, ie,, by issuing.new notes. Nevertheless, Citi argues that HCM had an implied good faith obligation under the November 25 Agreement to ensure that cash was available for distribution on the notes. Citi's Opp. MSJ (ECF No. 213) at 5. Citi bases this good faith obligation-on the provision in the November 25 Agreement under which the parties agreed that as-long as Citi held any of the HFP Notes,\\nif HFP has cash available on a Quarterly Payment Date in an amount equal or greater to the Quarterly Payment Amount, [HCM] will recommend to the board of directors and management of HFP, to the extent consistent with HCM's fiduciary-duties, that , HFP not \\u2022 exercise the [payment-in-kind option] on the Notes for such Quarterly Payment Date.\\nHighland's Opp. 56.1 (ECF No. 209) \\u00b6 167 (emphasis added).\\nAgain we find several flaws with Citi's argument. First, the conduct that Citi identifies\\u2014transferring cash from HFP to HCM and Dondero and thereby breaching an obligation that HCM owed directly to Citi\\u2014had nothing to do with CDO Fund and therefore cannot form the basis for piercing CDO Fund's veil. In other words, the- conduct is not an example of HCM's dominance of CDO Fund where the \\\"domination was used to commit a fraud or wrong that injured\\\" Citi. Thrift Drug, 131 F.3d at 97.\\nSecond, we are unpersuaded that HCM even owed Citi a good faith obligation to ensure that cash was available for distribution on the HFP Notes.' \\\"In general, courts enforce the implied covenant where an implied promise was so interwoven in the whole writing of a contract as to be necessary for effectuation of the purposes of the contract.\\\" M/A-COM Sec. Corp. v. Galesi, 904 F.2d 134, 136 (2d Cir. 1990) (internal quotation marks omitted). However, \\\"the implied covenant arises only in connection with the rights or obligations set forth in the terms of the contract, and cannot create duties that negate explicit rights under a contract.\\\" In re Libor-Based Fin. Instruments Antitrust Litig., No. 11 MDL 2262 NRB, 2016 WL 4634541, at *67 (S.D.N.Y. Aug. 4, 2015) (internal quotation marks omitted), amended, No. 11 MDL 2262, 2015 WL 13122396 (S.D.N.Y. Oct. 19, 2015).\\nGiven that'the November 25 Agreement only required that HCM \\\"recommend\\\" to HFP that it make distributions in cash rather than in kind, and given that HFP had no obligation to follow the recommendation or even make distributions in cash, it makes little sense to read into the November 25 Agreement an implied promise that HCM would ensure that cash was available for distribution on the HFP Notes. To the contrary, such an implied promise would impose a duty on HCM beyond that which Citi bargained for.\\nFinally, it is unclear whether a breach of an implied obligation of good faith even constitutes a wrong for purposes of veil piercing. Citi cites no authority for that position. In contrast, it is well-established that an ordinary \\\"breach of contract, without evidence of fraud or corporate misconduct, is not sufficient to pierce the corporate veil.\\\" Am. Federated Title Corp., 126 F.Supp.3d at 403 (internal quotation marks omitted). Further, a \\\"breach of an implied covenant of good faith and fair-dealing does not provide a [distinct] cause of action . from a breach of contract claim,\\\" but \\\"is merely a breach of the underlying contract.\\\" Designers N. Carpet, Inc. v. Mohawk Indus., Inc., 153 F.Supp.2d 193, 197 (E.D.N.Y. 2001).\\nc. Valuation of the HFP Notes\\nFinally, Citi alleges that HCM fraudulently represented the value of the HFP Notes that CDO Fund pledged to Citi as collateral under the November 25 Agreement because HCM knew the notes were \\\"worthless.\\\" Under the agreement, the notes were valued at 40% of face value, or approximately $8.6 million.\\nCiti's claim fails because Citi presents no evidence suggesting that HCM believed the notes were overvalued. Rather, the evidence that Citi relies on in support of its claim\\u2014that on November 7,2008, HCM instructed its valuation firm to value HFP's equity at $250 million, Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 144, but revised that figure down to $3.6 million on November 20, 2008, id. \\u00b6 145-46; that HFP's estimated liability on a loan facility as of November 20, 2008, was $160 million, id. \\u00b6 155; . and that HFP's book value had fallen to $0 by the end of November, id. \\u00b6 188\\u2014only suggests that HFP was insolvent. However, HFP's financial condition is irrelevant to the value of the HFP Notes because the notes were secured by independently valued collateral. Highland's Opp. MSJ (ECF No. 208) at 21; McCallum Decl. (ECF No. 199) Ex. 135.\\nIn response, Citi argues that HCM (1) failed to secure the HFP Note collateral as it was required to do; (2) disposed of unsecured collateral in January 2009, and (3) decided to unwind the HFP Notes on December 29, 2008, because of \\\"serious doubt\\\" about HFP's ability to service the debt on the HFP Notes. Citi Opp. MSJ (ECF No. 213) at 6. Even if true, though, none of those facts suggests that HCM believed the HFP Notes were overvalued when they were pledged to Citi as collateral in November 2008,\\nAccordingly, Citi's claim that HCM fraudulently represented the value of the HFP Notes fails as a matter of law.\\n\\nBecause none of the acts identified by Citi constitutes a wrong or fraud for veil piercing purposes, HCM is not liable for CDO Fund's obligations under a traditional veil piercing theory.\\nC. HCM Is Not Liable As CDO Fund's \\\"Equitable\\\" Owner\\nIn addition to asserting that HCM is liable under a traditional veil piercing theory, Citi also seeks to hold HCM liable as CDO Fund's \\\"equitable\\\" owner. However, that theory fails for the same reason as above.\\n\\\"New York courts have recognized for veil-piercing purposes the doctrine of equitable ownership, under which an individual who exercises sufficient control over the corporation may be deemed an 'equitable owner', notwithstanding the fact that the individual is not a shareholder of the corporation.\\\" Freeman v. Complex Computing Co., 119 F.3d 1044, 1051 (2d Cir. 1997). In such cases, \\\"a nonshare-holder defendant may .be, in reality, the equitable owner of a corporation where the nonshareholder defendant exercises considerable authority over the corporation to the point of .completely disregarding the corporate form and acting as though its assets are his alone to manage and distribute.\\\" Id. (alterations omitted) (internal quotation marks omitted). The Second Circuit applied the doctrine in Freeman to hold a company's consultant liable, despite the fact that he was neither a shareholder, officer, director, nor employee of the company. Id. 1051-52.\\nImportantly, however, the theory is not an alternative to veil piercing, but rather a recognition that veil piercing can apply to someone who is not a legal owner of a corporation if he exercises sufficient control and uses that control to commit a fraud or wrong. As the Second Circuit made clear in Freeman, the party seeking to apply the theory must still show that the \\\"equitable\\\" owner \\\"commit[ted] a fraud or other wrong that resulted in un just loss or injury\\\" to the plaintiff. Id. at 1053.\\n, Thus, regardless of whether the record establishes that HCM was an \\\"equitable\\\" owner of CDO Fund, Citi's theory fails for the same reason . as its traditional veil piercing theory above\\u2014ie,, the absence of a fraud or wrong.\\nP. HCM Is Not CDO Fund's \\\"De Facto\\\" General Partner\\nCiti next argues that HCM may be liable as CDO Fund's \\\"de facto\\\" general partner. Again, this theory fails for the same reason as above\\u2014the absence of a fraud or wrong.\\nCiti argues that HCM is CDO Fund's de facto general partner because, among other things, (1) HCM had sole responsibility for managing CDO Fund's operations; (2) CDO Fund's actual general partner (Highland GP), and that entity's general partner were both shells that were managed by HCM; and (3) Dondero controlled. CDO Fund and executed certain agreements on behalf of all parties to the agreements. Citi's MSJ (ECF No, 201) at 22.\\nCiti's legal theory is unclear. Citi cit\\u00e9s no case law under which one entity may simply be deemed another entity's \\\"de fac-to\\\" general partner. Rather, Citi. must establish that HCM should be treated as CDO Fund's general partner (ie,, Highland GP) by piercing the general partner's veil or .treating the entities as alter egos. However, to pierce Highland GP's veil or hold Citi liable as its alter ego, Citi must still establish that HCM committed a fraud or wrong that injured Citi. See Int'l Equity Invs., Inc. v. Opp. Equity Partners, Ltd., 475 F.Supp.2d 456, 459 (S.D.N.Y. 2007) (\\\" 'New York law allows the corporate veil to be pierced either when there is fraud or when the corporation has been used as an alter ego.' The latter normally requires 'a showing of . complete control by the dominating corporation that leads to a wrong against third parties.'\\\" (quoting Wm. Passalacqua Builders, Inc., 933 F.2d at 138) (citation omitted) (alteration omitted)). Having failed to establish either a fraud or wrong, Citi's de facto general partner theory fails for the same reasons as above.\\nE. HCM Is Not CDO Fund's \\\"De Facto\\\" Limited Partner\\nCiti's \\\"de facto\\\" limited. partner theory likewise fails. Citi argues that HCM was a de facto limited partner because CDO Fund's two limited funds\\u2014the offshore and onshore feeders\\u2014were shell companies that were managed by HCM. Citi's MSJ (ECF No. 201) at 23. Citi then argues that HCM, as a de facto limited . partner, can be liable as a general partner because it participated in CDO Fund's management. Id. Again, however, Citi's theory is predicated on a finding that the feeder funds' corporate forms should be ignored, which in turn requires finding that HCM committed a fraud or wrong that injured Citi. Having failed to do so, Citi's de facto limited partner theory also fails.\\n\\u215c * \\u215c\\nHaving rejected Citi's various theories, we find that HCM is not jointly and severally liable for , Citi's counterclaims against CDO Fund and dismiss Citi's claims against HCM.\\nIII. Liability on Citi's Counterclaims\\nApart from the issue of HCM's liability, the parties also dispute the status of Citi's counterclaims under which Citi seeks (1) to recover a $24 million deficit that Citi claims it is owed on account of CDO Fund's breach and (2) indemnification.\\nUnder New York law, an action for breach of contract requires proof of (1) a contract; (2) performance of the contract by one party; (3) breach by the other party; and (4) damages.\\\" First Inv'rs Corp. v. Liberty Mut. Ins. Co., 152 F.3d 162, 168 (2d Cir. 1998) (internal quotation marks omitted).\\nHere, the' amount of damages is not before us, and there is no dispute over the first and third elements, ie., that CDO Fund breached an agreement between the parties by failing to satisfy the December margin call. See M & O (ECF No. 150) at 33-50; id. at 60 (holding that \\\"Citi had the right to foreclose and liquidate the collateral and offset the proceeds against amounts owed by CDO Fund\\\"); Highland's Opp. MSJ (ECF No. 208) at 4 n.2 (conceding \\\"the existence of a contract and non-performance by CDO Fund (by not meeting the Margin Call)\\\").\\nThat leaves only the issue , of whether Citi performed under the relevant agreements.' Although riot raised in its motion papers, Highland argued at oral argument that Citi did not fully perform because it (1) failed to send CDO Fund a demand or deficit letter and (2) failed to provide CDO Fund an accounting or evidence of. its deficit calculation. Oral Arg. Tr. at 48:14-50:5.\\nEven if true, contract law requires only substantial performance, not complete performance. Bank of N.Y. Mellon Tr. Co. v. Morgan Stanley Mortg. Capital, Inc., 821 F.3d 297, 311-12 (2d Cir. 2016) (\\\"Substantial performance is performance, the deviations permitted being minor, unimportant, inadvertent, and unintentional.\\\" (internal quotation marks omitted)). We find that the deficiencies identified by Highland are no more than technical breaches, especially since we find implausible the notion that CDO Fund would have paid the deficit or indemnified Citi if Citi had merely issued a d\\u00e9ficit notice or provided an accounting. Accordingly, we find that Citi is entitled to summary judgment on the liability portion of its counterclaims.\\nCONCLUSION\\nFor the reasons set forth above, (1) Citi's motion seeking to hold HCM jointly and severally liable for any judgment awarded against CDO Fund is denied; (2) Highland's motion to dismiss HCM is granted; and (3) Citi's motion seeking to hold CDO Fund liable on Citi's counterclaims is granted. This Memorandum and Order resolves docket numbers 188 and 197.\\nSO ORDERED.\\n. \\\"Citi\\\" refers to counterclaim plaintiffs Citibank N.A., Citigroup Global Markets Limited, Citigroup Financial Products Inc., and Citigroup Global Markets Inc.\\n. The following facts are undisputed unless noted otherwise, For additional background, the Court refers to its March 21, 2013, Memorandum and Order (ECF No. 28) addressing Citi's motion to dismiss and its March 30, 2016, Memorandum and Order (ECF No. 150) (\\\"M & O\\\") addressing the parties' initial summary judgment motions.\\n. Highland argues that we may not rely on certain deposition testimony from Dondero and Travers because it was given in a separate case and therefore Highland did not have an \\\"opportunity and similar motive to develop the testimony.\\\" See, e.g., Pl.'s Opp. 56.1 \\u00b6 4. Highland cites no authority for such a proposition, which appears to be an improper application of the hearsay rule. While certain testimony of unavailable declarants may be inadmissible where the opposing party lacked an opportunity and similar motive to develop the testimony, see Fed. R. Evid. 804(b)(1)(B), that rule is inapplicable here because Donde-ro and Travers are available to testify. Moreover, their statements are not even hearsay, as they fall under the exception for opposing party statements. See id. 801(d)(2). Nor is testimony excludable on summary judgment merely because it was taken in a different case. See, e.g., Alexander v. Casino Queen, Inc., 739 F.3d 972, 978 (7th Cir. 2014) (\\\"The weight of authority is that depositions can be the equivalent of affidavits, and are therefore admissible at the summary judgment stage.\\\"); Gulf USA Corp. v. Fed. Ins. Co., 259 F.3d 1049, 1056 (9th Cir. 2001); Kovalchik v. City of New York, No. 09-CV-4546(RA), 2014 WL 4652478, at *5 n.5 (S.D.N.Y. Sept. 18, 2014). Accordingly, we will consider the testimony.\\n. Of the $47.7 million in HFP Notes originally received, CDO Fund sold $4 million to an HCM affiliate for cash, Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 147, and transferred $22.3 million to HCM in satisfaction of prior loans, id. \\u00b6 150.\\n. Although Citi's motion seeks to hold both HCM and Highland GP jointly and severally liable, there is no dispute that counterclaim defendant Highland GP is liable for CDO Fund's obligations under ordinary partnership law. See Highland MSJ (ECF No. 190) at 8 n.22 (\\\"Everyone agrees that Citi can seek to recover CDO Fund's debts or liabilities from CDO Fund's General Partner, Highland GP, which Citi appropriately named in its counterclaims, in accordance with the law governing limited partnerships.\\\").\\n. As used herein, \\\"MSJ\\\" refers to the parties' respective memoranda of law in support of their motions for summary judgment and \\\"56.1\\\" refers to the parties' statements of undisputed fact pursuant to local rule 56.1.\\n. New York applies a separate choice-of-law rule for contract claims\\u2014the \\\"center of gravity\\\" or \\\"grouping of contacts\\\" analysis. See GlobalNet Financial-Com, Inc. v. Frank Crystal & Co., 449 F.3d 377, 383 (2d Cir. 2006). Neither party contends that such rule applies to Citi's veil piercing claims.\\n. Citibank, N.A. is a national banking association, organized under the laws of the United States, and has its principal place of business in New York City and its head office in South Dakota. Citigroup Global Markets Inc. is incorporated in New York and has its principal place of business in New York. Citigroup Financial Products Inc. is incorporated in Delaware and has its principal place of business in New York. Citigroup Global Markets Limited is organized in England and has it principal place of business in London. Citi's Am. Coun-tercl. (ECF No. 43) \\u00b6 8-11.\\n. Highland claims that the transaction was arm's length, but does not offer evidence sufficient to rebut the above testimony. For example, Highland claims that the transaction was approved by CDO Fund's independent committee. Highland's 56.1 \\u00b6 48. However, the committee does not appear to have been truly independent. Among other things, the same two members who comprised CDO Fund's independent committee also comprised the independent committees for the three other Highland funds that contributed to the HFP Notes. See Leventon Decl. (ECF No. 191), Ex. A-23. Moreover, those two individuals gave their approval on behalf of all four contributing funds collectively, id., belying the notion that the committees acted independently. Finally, one of the two independent committee members, Charles McQueary, testified that he was not even \\\"familiar with the entity Highland CDO Master Fund, LP.\\\" McCallum Decl. (ECF No. T99), Ex. 87 at 24:19-21. Rather, he believed that he served on HCM's valuation committee and was approving the pricing and value of instruments underlying certain transactions rather than the transactions themselves. Id. at 30:24-31:7. Highland's other evidence that the HFP Note transaction was arm's length\\u2014testimony from Citi's corporate representative that he did not believe that \\\"Citi specifically is claiming that [the HFP Note Transaction] . was not an arm's length transaction,\\\" Prudhomme Decl. (ECF No. 192), Ex. B-27 at 65:5-11\\u2014is also insufficient.\\n. \\\"Oral Arg, Tr.\\\" refers to the transcript of the oral argument held before the Court on the present motions on August 17, 2017.\\n. As noted above, the $8.1 million in asset transfers were to repay two obligations incurred by CDO Fund .on October 24, 2008, namely SOHC's covering of a $5.1 million margin call\\\" by UBS and HCM's loan of $3 million in cash. That same day, CDO Fund satisfied a $3 million margin call to Bank of America, which resulted in CDO Fund having a temporary negative cash balance. McCallum Deck (ECF No. 199), Ex. 47. Without the loans, CDO Fund would have had an end-of-the-day cash balance on October 24, 2008, of negative $6.4 million. See id. (CDO Fund's master cash flow spreadsheet showing end-of-the-day balance of $1,7 million for October 24, 2008, after inflow of $3 million cash from HCM).-\\n. The record shows that on November 4, 2008, one of the special purpose entities established to hold the assets underlying the HFP Notes received $10,8 million in cash, McCallum Deck (ECF No. 199), Ex. 136. HCM emails dated November 5, 2008, and November 6, 2008, suggest that the cash was distributed to HCM, including to satisfy a margin call on HFP, See Ex. McCallum Deck (ECF No. 199), 60; id., Ex. 136. Moreover, on January 29, 2009, HCM informed Citi that $9.3 million in cash that had been received on the a'ssets underlying the HFP Notes had been used for \\\"other purposes,\\\" '-'[plrimarily -to make required payments on other short term financing facilities.\\\" Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 189-90, 193. HCM does not explain what those \\\"short term financing facilities\\\" were, Citi also points to evidence \\u2022 showing that HFP (1) transferred $8 million cash, to HCM on November 5, 2008, id. \\u00b6 166; (2) transferred $3.7 million in cash to,Dondero's personal bank account on December 10, 2008, id. \\u00b6 170-71; and (3) at least intended (although it is not clear if HCM succeeded) to transfer $1.9 million tp Dondero's personal bank account on February 2, 2009, id. \\u00b6 195. However, it is not clear whether the cash transferred to HCM and Dondero is related, to the cash HFP received oh the HFP Note assets.\\n. We note two other issues with Citi's theory. First it is speculative, in that the first quarterly distribution on the HFP Notes was not due until February 15, 2009, by which time the notes were being unwound. As a result, Citi cannot say that HCM made certain that no cash would be available for distribution on the HFP Notes. Second, Citi released any claims against HFP and HCM relating to the HFP Notes when they were unwound. As a result, we doubt that Citi should be allowed to claim,' as a matter of equity, that HCM's otherwise released conduct constitutes a wrong for veil piercing purposes.\\n. Citi claims that it did not have the ability to value the life insurance contracts underlying the HFP Notes and therefore relied on ' HCM's representations regarding the HFP Notes' value. See Citi's 56.1 (ECF No. 203, Ex. B) \\u00b6 169. Highland disputes this claim. See Pl.'s Opp. 56.1 \\u00b6 169.\\n. Although Citi's present motion seeks summary judgment as to CDO Fund's liability on the counterclaims, the parties' briefing is devoted almost entirely to the issue of HCM's liability, with each party only devoting a footnote to the issue of counterclaim liability.\\n. Highland's conclusory statement that it raises various affirmative defenses to the counterclaims, including waiver, estoppel, election of remedies, unjust enrichment, and release, Highland's Opp. MSJ (ECF No. 208) at 4 n.2, is insufficient to defeat summary judgment.\\n. Nothing in this Memorandum and Order should be construed as addressing Citi's second counterclaim regarding distributions on certain Red River Preference Shares, see Citi's Am. Countercl. (ECF No. 43). \\u00b6 85-93, a counterclaim that neither party addressed and that does not appear to have been addressed in any of the numerous briefs submitted thus far in this case.\"}"

us/12429815.json

@@ -0,0 +1 @@
+"{\"id\": \"12429815\", \"name\": \"Ekanem v. United States\", \"name_abbreviation\": \"Ekanem v. United States\", \"decision_date\": \"2013-01-14\", \"docket_number\": \"No. 12-7752\", \"first_page\": \"1137\", \"last_page\": \"1137\", \"citations\": \"568 U.S. 1137\", \"volume\": \"568\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T02:20:14.465461+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ekanem v. United States.\", \"head_matter\": \"No. 12-7752.\\nEkanem v. United States.\", \"word_count\": \"12\", \"char_count\": \"72\", \"text\": \"C. A. 5th Cir. Certiorari denied.\"}"

us/12437171.json

@@ -0,0 +1 @@
+"{\"id\": \"12437171\", \"name\": \"Marcos Moreno-Montano, Petitioner v. Greg Jacquert, et al.\", \"name_abbreviation\": \"Moreno-Montano v. Jacquert\", \"decision_date\": \"2010-10-04\", \"docket_number\": \"No. 10-5405\", \"first_page\": \"191\", \"last_page\": \"191\", \"citations\": \"178 L. Ed. 2d 191\", \"volume\": \"178\", \"reporter\": \"United States Supreme Court Reports, Lawyers' Edition\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T02:36:12.882006+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Marcos Moreno-Montano, Petitioner v. Greg Jacquert, et al.\", \"head_matter\": \"No. 10-5405.\\nMarcos Moreno-Montano, Petitioner v. Greg Jacquert, et al.\\n562 U.S. 920, 131 S. Ct. 291,\\n2010 U.S. LEXIS 7171.\\n178 L. Ed. 2d 191,\\nOctober 4, 2010.\", \"word_count\": \"53\", \"char_count\": \"297\", \"text\": \"Petition for writ of certiorari to the United States Court of Appeals for the Tenth Circuit denied.\\nSame case below, 376 Fed. Appx. 865.\"}"

us/12449338.json

@@ -0,0 +1 @@
+"{\"id\": \"12449338\", \"name\": \"David Roy Griffey, Petitioner v. United States\", \"name_abbreviation\": \"Griffey v. United States\", \"decision_date\": \"2010-05-17\", \"docket_number\": \"No. 09-9676\", \"first_page\": \"1196\", \"last_page\": \"1196\", \"citations\": \"176 L. Ed. 2d 1196\", \"volume\": \"176\", \"reporter\": \"United States Supreme Court Reports, Lawyers' Edition\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:41:11.214267+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"David Roy Griffey, Petitioner v. United States.\", \"head_matter\": \"No. 09-9676.\\nDavid Roy Griffey, Petitioner v. United States.\\n560 U.S. 911,130 S. Ct. 3290,\\n176 L. Ed. 2d 1196,\\n2010 U.S. LEXIS 4065.\\nMay 17, 2010.\", \"word_count\": \"50\", \"char_count\": \"283\", \"text\": \"Petition for writ of cer-tiorari to the United States Court of Appeals for the Eleventh Circuit denied.\\nSame case below, 589 F.3d 1363.\"}"

us/12450991.json

@@ -0,0 +1 @@
+"{\"id\": \"12450991\", \"name\": \"Mark McCune, Petitioner v. Sigrid McCune\", \"name_abbreviation\": \"McCune v. McCune\", \"decision_date\": \"2011-06-27\", \"docket_number\": \"No. 10-10110\", \"first_page\": \"893\", \"last_page\": \"893\", \"citations\": \"180 L. Ed. 2d 893\", \"volume\": \"180\", \"reporter\": \"United States Supreme Court Reports, Lawyers' Edition\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T20:00:53.824783+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mark McCune, Petitioner v. Sigrid McCune.\", \"head_matter\": \"No. 10-10110.\\nMark McCune, Petitioner v. Sigrid McCune.\\n564 U.S. 1041, 131 S. Ct. 3066,\\n180 L. Ed. 2d 893,\\n2011 U.S. LEXIS 4820.\\nJune 27, 2011.\", \"word_count\": \"42\", \"char_count\": \"235\", \"text\": \"Petition for writ of cer-tiorari to the Court of Appeals of Arizona, Division Two, denied.\"}"

us/12455671.json

@@ -0,0 +1 @@
+"{\"id\": \"12455671\", \"name\": \"Perry Pooler, Petitioner v. Burl Cain, Warden\", \"name_abbreviation\": \"Pooler v. Cain\", \"decision_date\": \"2010-06-28\", \"docket_number\": \"No. 09-10427\", \"first_page\": \"1100\", \"last_page\": \"1100\", \"citations\": \"177 L. Ed. 2d 1100\", \"volume\": \"177\", \"reporter\": \"United States Supreme Court Reports, Lawyers' Edition\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T17:52:46.411191+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Perry Pooler, Petitioner v. Burl Cain, Warden.\", \"head_matter\": \"No. 09-10427.\\nPerry Pooler, Petitioner v. Burl Cain, Warden.\\n561 U.S. 1030, 130 S. Ct. 3514,\\n177 L. Ed. 2d 1100,\\n2010 U.S. LEXIS 5414.\\nJune 28, 2010.\", \"word_count\": \"45\", \"char_count\": \"251\", \"text\": \"Petition for writ of cer-tiorari to the United States Court of Appeals for the Fifth Circuit denied.\"}"

us/12522019.json

@@ -0,0 +1 @@
+"{\"id\": \"12522019\", \"name\": \"Marcus HAHN, Petitioner - Appellant, v. Warden Bonita MOSELEY, Federal Correctional Institution, Edgefield, South Carolina, Respondent - Appellee.\", \"name_abbreviation\": \"Hahn v. Moseley\", \"decision_date\": \"2019-07-24\", \"docket_number\": \"No. 18-6283\", \"first_page\": \"295\", \"last_page\": \"307\", \"citations\": \"931 F.3d 295\", \"volume\": \"931\", \"reporter\": \"Federal Reporter 3d Series\", \"court\": \"United States Court of Appeals for the Fourth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"Before GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.\", \"parties\": \"Marcus HAHN, Petitioner - Appellant,\\nv.\\nWarden Bonita MOSELEY, Federal Correctional Institution, Edgefield, South Carolina, Respondent - Appellee.\", \"head_matter\": \"Marcus HAHN, Petitioner - Appellant,\\nv.\\nWarden Bonita MOSELEY, Federal Correctional Institution, Edgefield, South Carolina, Respondent - Appellee.\\nNo. 18-6283\\nUnited States Court of Appeals, Fourth Circuit.\\nArgued: May 9, 2019\\nDecided: July 24, 2019\\nARGUED: Susan Michelle Pelletier, MUNGER, TOLLES & OLSON LLP, Washington, D.C., for Appellant. John Michael Pellettieri, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: Chad Golder, MUNGER, TOLLES & OLSON LLP, Washington, D.C., for Appellant. Brian A. Benczkowski, Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney, General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Sherri A. Lydon, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.\\nBefore GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.\\nReversed and remanded with instructions by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn and Judge Thacker joined. Judge Wynn wrote a concurring opinion.\", \"word_count\": \"5718\", \"char_count\": \"35480\", \"text\": \"GREGORY, Chief Judge:\\nPetitioner-Appellant Marcus Hahn appeals the final order of the district court denying his petition for a writ of habeas corpus under 28 U.S.C. \\u00a7 2241. Because Hahn's current sentence stems from faulty arithmetic based on a now-obsolete scheme of statutory interpretation, we conclude that Hahn's petition meets the requirements of 28 U.S.C. \\u00a7 2255(e), the savings clause. We therefore reverse the district court's order and remand with instructions to grant Hahn's writ of habeas corpus.\\nI.\\nOn December 31, 1999, law enforcement from various state and federal agencies executed a search warrant for Hahn's home near Albuquerque, New Mexico. Hahn was arrested after law enforcement discovered and seized marijuana plants and firearms during that search. On December 7, 2000, at the conclusion of a jury trial in the United States District Court for the District of New Mexico, a jury convicted Hahn of the following four counts: (1) intentionally manufacturing 100 or more marijuana plants; (2) opening and maintaining a place for the purpose of manufacturing, distributing, and using marijuana; (3) possessing firearms in furtherance of the intentional manufacturing of 100 or more marijuana plants; and (4) possessing a firearm in furtherance of the opening and maintaining a place for the purpose of manufacturing, distributing, and using marijuana. Counts III and IV are based on the same gun collection, which includes 21 firearms.\\nIn 2001, the district court sentenced Hahn to 480 months' imprisonment for these gun and drug offenses. He received 60 months' imprisonment for Count I, a concurrent 27 months for Count II, a consecutive 120 months for Count III, and a consecutive 300 months for Count IV.\\nIn 2002, on direct appeal to the Tenth Circuit, Hahn challenged the legality of his sentence for his second firearm conviction. He contended that the district court impermissibly treated his second firearm conviction as \\\"second or subsequent\\\" to his first firearm conviction for purposes of the statute's sentencing enhancement. Hahn I , 38 F. App'x at 554. Hahn argued that the court's approach was in error because the underlying drug crimes were part of a \\\"continuing incident\\\" and were \\\"coterminous in space and time.\\\" Id. The Tenth Circuit rejected this argument, relying principally on United States v. Sturmoski , 971 F.2d 452, 461 (10th Cir. 1992) (\\\"[C]onsecutive sentences may be imposed for multiple 924(c) counts if the offenses underlying each 924(c) count do not constitute a single offense for double jeopardy purposes.\\\"). Similar to Hahn, the defendant in Sturmoski appealed convictions for: (1) attempting to manufacture a controlled substance; (2) maintaining a place for manufacturing a controlled substance; and (3) two 18 U.S.C. \\u00a7 924(c) convictions for facilitating the aforementioned drug counts. Hahn I , 38 F. App'x at 555. The Sturmoski court held that \\\"Congress intended multiple convictions under 924(c), even though the counts involved 'the same criminal episode,' because Congress intended the underlying offenses to be separate.\\\" Id. After reviewing Sturmoski , the Tenth Circuit in Hahn's case found that \\\"[t]he only difference between the situations in Sturmoski and in this case is that one of Hahn's 924(c) convictions was for possession in furtherance of manufacture, rather than possession in furtherance of attempt to manufacture.\\\" Id. Given the factual and legal similarities between Sturmoski and Hahn's case, the court found that \\\" Sturmoski clearly controls the outcome of this case. Hahn's conviction for maintaining a place for manufacture is distinct from his manufacture conviction, and his two 924(c) convictions are also distinct.\\\" Id. The court further ruled that \\\"even if possession of a firearm occurs in connection with a single criminal episode, a second 924(c) conviction arising out of that episode can constitute a 'second or subsequent conviction' for sentencing purposes.\\\" Id. The Tenth Circuit therefore affirmed Hahn's convictions and sentence. Id.\\nIn 2004, Hahn filed a motion under 28 U.S.C. \\u00a7 2255 to vacate, set aside, or correct his sentence in the United States District Court of New Mexico. He argued that \\\"double jeopardy bars multiple \\u00a7 924(c)(1) firearm convictions based on multiple predicate offenses which are factually inseparable in terms of time, space and underlying conduct.\\\" United States v. Hahn , 191 F. App'x 758, 760 (10th Cir. 2006) (citation and internal quotation marks omitted) (\\\" Hahn II \\\"). Hahn also argued that \\\" \\u00a7 924(c)(1) contains a number of ambiguities, requiring application of the rule of lenity.\\\" Id. Hahn explained that he did not previously raise these arguments because he received ineffective assistance of counsel. The district court dismissed the motion in 2004, concluding that Hahn's arguments were procedurally barred and without merit. Id .\\nHahn filed a motion for reconsideration under Federal Rule of Civil Procedure 59(e). He disputed that his double jeopardy claim had been resolved on direct appeal and moved to amend his \\u00a7 2255 motion to add more evidence. Id. The district court treated these motions as successive \\u00a7 2255 motions and transferred them to the Tenth Circuit. Hahn appealed this determination, and the Tenth Circuit issued a certificate of appealability to consider Hahn's \\u00a7 924(c)(1) arguments. The Tenth Circuit subsequently affirmed the dismissal and held that: (1) Hahn forfeited his double jeopardy claim and it was procedurally barred because he did not raise it on direct appeal; (2) even if his double jeopardy claim was not procedurally barred, counsel's failure to raise it would not have constituted ineffective assistance of counsel because Sturmoski controls and renders Hahn's double jeopardy claim meritless; and (3) as to the ambiguity argument, a motion to vacate could not be used, absent an intervening change in circuit law, to raise an argument that was resolved on direct appeal. Hahn II , 191 F. App'x at 760-61.\\nIn 2015, Hahn filed a motion under Rule 60(b)(4), alleging that he was entitled to relief because of an en banc Tenth Circuit decision issued after the dismissal of his petition. United States v. Rentz , 777 F.3d 1105 (10th Cir. 2015). Hahn argued that Rentz altered the substantive law in the Tenth Circuit by establishing a new statutory framework interpreting \\u00a7 924(c). Specifically, Hahn contended that Rentz added a unit-of-prosecution requirement for a \\u00a7 924(c) conviction and therefore entitled him to relief denied under Sturmoski . Unit-of-prosecution questions ask whether the conduct at issue \\\"constitutes one, or several, violations of a single statutory provision.\\\" Callanan v. United States , 364 U.S. 587, 597, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961). In Rentz , the Tenth Circuit addressed the issue of whether, as a matter of statutory construction, \\u00a7 924(c) \\\"authorizes multiple charges when everyone admits there's only a single use, carry, or possession.\\\" 777 F.3d at 1108. After recognizing that this question was separate from the double jeopardy inquiry, the court ruled that each \\u00a7 924(c) charge \\\"requires an independent use, carry, or possession.\\\" Id. at 1115. Before Rentz , when Sturmoski was controlling law, multiple charges under \\u00a7 924(c) were permissible as long as they did not run afoul of the Double Jeopardy Clause. After Rentz , the Tenth Circuit, based on the language of the statute itself, held that multiple charges under \\u00a7 924(c) based on the same conduct were not proper even if they complied with the Double Jeopardy Clause. Thus, Rentz found that it was improper to allow multiple charges to arise from a single possession under the language of the statute. Id.\\nThe district court determined that Hahn's motion should be treated as a second or subsequent \\u00a7 2255 motion-i.e., a motion that could not be filed without precertification by the Court of Appeals-and transferred it to the Tenth Circuit. Hahn then filed a motion to remand before the Tenth Circuit to allow the district court to consider the merits of his Rule 60(b) motion or, in the alternative, for authorization to file a second or successive \\u00a7 2255 motion. The Tenth Circuit denied both the motion to remand and Hahn's request to file a second or successive \\u00a7 2255 motion based on a procedural impediment. Rentz was a Tenth Circuit decision, and thus did not meet the requirements for a second or subsequent motion.\\nAt some point after 2015, correctional officials transferred Hahn to a facility in South Carolina, where he is currently detained. Hahn filed the instant petition under 28 U.S.C. \\u00a7 2241 in the United States District Court for the District of South Carolina. Pursuant to \\u00a7 2241, federal courts have jurisdiction over habeas corpus petitions from federal inmates \\\"in custody in violation of the Constitution or laws or treaties of the United States.\\\" 28 U.S.C. \\u00a7 2241(c)(3). Habeas petitions filed under this section must be filed in the jurisdiction where the federal prisoner is detained. 28 U.S.C. \\u00a7 2241(a)(c)(3). Hahn's appeal is properly before us because he is detained in South Carolina.\\nHahn contended that he was actually statutorily innocent of his second \\u00a7 924(c) conviction after Rentz because the charge was procedurally improper. The magistrate judge issued a report that recommended denying Hahn's petition because Hahn could not meet the three-pronged test outlined in In re Jones , 226 F.3d 328, 333-34 (4th Cir. 2000). That case holds that \\\" \\u00a7 2255 is inadequate and ineffective to test the legality of a conviction\\\" where:\\n(1) at the time of the conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first \\u00a7 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of \\u00a7 2255 because the new rule is not one of constitutional law.\\nId . Hahn objected to the magistrate's report and recommendation, but the district court adopted the magistrate judge's recommendation and denied his petition. Hahn filed a Rule 59 motion to alter or amend the judgment. See Fed. R. Civ. P. 59(e). The district court denied the motion as without merit, and Hahn timely appealed.\\nII.\\nGenerally, defendants who are convicted in federal court must pursue habeas relief from their convictions and sentences through the procedures set out in 28 U.S.C. \\u00a7 2255. Rice v. Rivera , 617 F.3d 802, 807 (4th Cir. 2010). Nonetheless, \\u00a7 2255 includes a \\\"savings clause\\\" that preserves the availability of \\u00a7 2241 relief when \\u00a7 2255 proves \\\"inadequate or ineffective to test the legality of a [prisoner's] detention.\\\" 28 U.S.C. \\u00a7 2255(e).\\nAs the district court properly recognized, in determining whether to grant habeas relief under the savings clause, we consider (1) whether the conviction was proper under the settled law of this circuit or Supreme Court at the time;\\n(2) if the law of conviction changed after the prisoner's direct appeal and first \\u00a7 2255 motion; and (3) if the prisoner cannot meet the traditional \\u00a7 2255 standard because the change is not one of constitutional law. In re Jones , 226 F.3d at 333-34. In evaluating substantive claims under the savings clause, however, we look to the substantive law of the circuit where a defendant was convicted. In re Davenport , 147 F.3d 605, 611-12 (7th Cir. 1998) ; Eames v. Jones , 793 F. Supp. 2d 747, 750 (E.D.N.C. 2011). Hahn was convicted in the Tenth Circuit. For this reason, we apply our procedural law, but Tenth Circuit substantive law governs the petition. We review the district court's denial of Hahn's \\u00a7 2241 petition de novo . Fontanez v. O'Brien , 807 F.3d 84, 86 (4th Cir. 2015).\\nA.\\nThe first prong of In re Jones requires that \\\"at the time of conviction, settled law of the circuit or the Supreme Court established the legality of the conviction.\\\" 226 F.3d at 333-34. Here, the legality of the conviction turns on whether it was proper at the time to charge and convict Hahn with two \\u00a7 924(c) counts based on the possession of a single collection of firearms in both: (1) furtherance of intentionally manufacturing 100 or more marijuana plants and (2) the opening and maintaining of a place for the purpose of manufacturing, distributing, and using marijuana.\\nThere are two legal principles that may limit the Government's power to pursue multiple charges for the same underlying conduct in this case: (1) the statute's unit of prosecution and (2) the Double Jeopardy Clause. At the time of Hahn's conviction, Tenth Circuit law held that the only requirement for charging multiple \\u00a7 924(c)(1)(A) counts based on a single criminal event was that the crimes of violence or drug trafficking crimes underlying each count be separate to avoid violations of the Double Jeopardy Clause. See Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (explaining that the Double Jeopardy Clause prohibits punishing a defendant for the same conduct under two distinct statutory provisions unless \\\"each provision requires proof of a fact which the other does not\\\"). Sturmoski did not address any concerns regarding the statutory unit of prosecution.\\nIn Sturmoski , the Tenth Circuit rejected the defendant's argument that multiple \\u00a7 924(c) convictions for the same underlying conduct were impermissible, reasoning that \\\"separate convictions can arise from essentially identical facts\\\" if the convictions do not violate double jeopardy. 971 F.2d at 461. Sturmoski was the governing law at the time Hahn was charged and convicted. It follows, then, that at the time of conviction the settled law of the Tenth Circuit established the legality of Hahn's two convictions pursuant to the same conduct under \\u00a7 924(c). Hahn thus meets the first requirement of our savings clause inquiry.\\nB.\\nOur decision in In re Jones next requires that we ask whether \\\"subsequent to the prisoner's direct appeal and first \\u00a7 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal.\\\" 226 F.3d at 333-34. Hahn argues that the Tenth Circuit's 2015 decision in Rentz renders non-criminal the conduct on which his second \\u00a7 924(c) conviction was based. We must therefore determine whether the rule announced in Rentz establishes that the conduct underlying Hahn's second firearm conviction is no longer criminal. We hold that it does.\\nIn 2013, a panel of the Tenth Circuit heard United States v. Rentz , a case in which a defendant's single use of a firearm, resulting in one gun shot, led to convictions for two crimes: assault and murder. 735 F.3d 1245, 1247 (10th Cir. 2013). The grand jury indicted the defendant on two counts of use of a firearm in furtherance of a crime of violence, one for the assault and one for the murder. Id . The defendant moved to dismiss the second firearm count, arguing that: (1) Congress did not intend to punish a person for two violations of \\u00a7 924(c) based on a single use of a firearm and (2) punishment on both firearm counts would violate the Double Jeopardy Clause. Id. The district court agreed and granted the defendant's motion. Id.\\nOn appeal, the Tenth Circuit reversed. Id . at 1254. The panel, relying on Sturmoski , \\\"held that the proper 'unit of prosecution' under \\u00a7 924(c) is a single underlying offense-meaning that two convictions under \\u00a7 924(c) arising from the same course of conduct were proper under the language of \\u00a7 924(c).\\\" Id. at 1250.\\nThe Tenth Circuit later granted rehearing en banc to decide the unit of prosecution issue that led to the reversal of the district court's decision. See Rentz , 777 F.3d at 1117. The Tenth Circuit explained that the question presented was whether, as a \\\"matter of statutory interpretation, \\u00a7 924(c)(1)(A) authorizes multiple charges when everyone admits there's only a single use, carry, or possession.\\\" Id. at 1108. The court held that the Government must prove a separate use, carry, or possession for each \\u00a7 924(c) charge it brings. Id. at 1109. The court thus vacated the panel opinion relying on Sturmoski and affirmed the district court's decision. Id. at 1115.\\nHahn argues that the en banc decision in Rentz constitutes a substantial change in the law because it introduces a new statutory framework that was not present in Sturmoski . We agree. Under Sturmoski , whether or not conduct could lead to multiple charges under \\u00a7 924(c) in the Tenth Circuit depended solely on whether the charge violated the Double Jeopardy Clause. Now under Rentz , it is not enough that the multiple charges pass muster under the Double Jeopardy Clause. Rather, multiple charges must also comply with a unit-of-prosecution statutory analysis that examines how many distinct instances of conduct exist. When the charges or counts exceed the number of acts, those extra charges or counts cannot form the basis of additional criminal liability. In sum, Rentz constitutes a substantive change in the law that renders Hahn's firearm possession no longer sufficient to support two \\u00a7 924(c) convictions.\\nThe Government advances several arguments to the contrary, none of which we find persuasive. Relying on Schlup v. Delo , 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), the Government attempts to import a procedural gateway actual innocence analysis into the adjudication of Hahn's petition. The Government argues that Hahn must demonstrate actual innocence: that he did not commit the underlying conduct, i.e., possession of the firearms, in order to warrant relief under the savings clause. The Government asks us to utilize an analysis that requires a petitioner \\\"to support his allegations of constitutional error with new reliable evidence.\\\" Schlup , 513 U.S. at 324, 115 S.Ct. 851. This argument fails because the Fourth Circuit does not require an actual innocence analysis under the savings clause and adopting the Government's position would be contrary to the settled and established law of this Circuit. 226 F.3d at 333-34. The test in In re Jones functions as a gateway to relief without interrogating the factual issues of whether the underlying criminal activity occurred. In Re Jones assumes that the factual record is settled but requires this Court to compare prior and current precedent to evaluate whether a substantive change in the law has occurred. A petitioner satisfies this standard if the substantive change in the law makes previously illegal conduct no longer a source of criminal liability. In other words, our analysis is tethered to a change in the law, not a change in the factual underpinnings or evidence of a criminal record. If this substantive change in the law occurs after the prisoner's direct appeal and first \\u00a7 2255 motion, he satisfies the second requirement of the In re Jones standard. This is the standard that we use to ascertain a prisoner's entitlement to relief under the savings clause.\\nMoreover, the Government argues that Rentz does not control because there are factual differences between Sturmoski and Rentz that make them distinguishable. However, Rentz outlines a new statutory scheme of interpretation that is not a fact-dependent inquiry. Indeed, Rentz now defines and requires a unit-of-prosecution analysis in criminal matters implicating \\u00a7 924(c). The newly required analysis applies to any \\u00a7 924(c) charge regardless of the particular facts of the case.\\nThe Government further argues that Hahn's case involves multiple possessions and that the petition should therefore still be denied. We also find this argument unavailing. Hahn was charged with two counts based on a single gun collection that the police discovered at his home on a single day. The same firearm collection was listed in the indictment as support for both of the firearm counts. The Government argues that Hahn should still be found to have separate possessions under Rentz because the guns were found at different locations throughout his house. See United States v. Hutching , 75 F.3d 1453, 1460 (10th Cir. 1996). And yet we discern no cognizable relationship among the number of guns, the locations of the guns, and the number of \\u00a7 924(c) counts in Hahn's the indictment. For instance, the indictment did not charge that ten of the guns were for the furtherance of the manufacturing charge based on one location and that eleven of the guns were for the furtherance of the place-of-manufacture charge based on another location. The same set of 21 guns was simply listed twice in the indictment, indicating that the two counts were based on drug activity and a singular possession. Rentz renders this approach impermissible.\\nIn conclusion, Rentz substantively changed the law of the Tenth Circuit. Because of this change, Hahn's petition satisfies the second prong of In re Jones . Only one firearm possession exists, and therefore-under Rentz -only one \\u00a7 924(c) charge is proper here.\\nC.\\nFinally, our decision in In re Jones provides that Hahn can pursue \\u00a7 2241 relief only if he \\\"cannot satisfy the gatekeeping provisions of \\u00a7 2255 because the new rule is not one of constitutional law.\\\" 226 F.3d at 333-34. Hahn could not successfully pursue collateral review under \\u00a7 2255 because Rentz did not rely on any rule of constitutional law and no new evidence was proffered. Hahn thus meets the third and final requirement of the savings clause and is entitled to relief.\\nIII.\\nHahn's conviction on Count IV-the second of his \\u00a7 924(c) convictions-cannot stand because it is not supported by an independent firearm possession under recent Tenth Circuit precedent. We therefore reverse the district court's decision and remand with instructions to grant Hahn's writ of habeas corpus and vacate his second conviction under 18 U.S.C. \\u00a7 924(c) and the associated consecutive 300-month sentence.\\nREVERSED AND REMANDED WITH INSTRUCTIONS\\nThe Government requested that this Court stay the current proceedings in anticipation of the Supreme Court's decision whether to grant certiorari in United States v. Wheeler , 734 F. App'x 892 (4th Cir. 2018). The Government's request is moot because the Supreme Court denied certiorari in Wheeler on March 18, 2019. See United States v. Wheeler , - U.S. -, 139 S. Ct. 1318, 203 L.Ed.2d 600 (2019).\\nSee 21 U.S.C. \\u00a7 841(a)(1), (b)(1)(B), and 18 U.S.C. \\u00a7 2.\\nSee 21 U.S.C. \\u00a7 856 (a)(1), (b).\\nSee 18 U.S.C. \\u00a7 924(c)(1)(A).\\nId .\\nThe sentencing court characterized the Count IV firearm conviction as a \\\"second or subsequent\\\" conviction under \\u00a7 924(c), for which the statute mandated a consecutive sentence of twenty-five years. United States v. Hahn , 38 F. App'x 553, 554 (10th Cir. 2002) (\\\"Hahn I \\\").\\nThe district court had jurisdiction over Hahn's \\u00a7 2241 petition under 28 U.S.C. \\u00a7 1331. This Court has jurisdiction over this appeal under 28 U.S.C. \\u00a7 1291(a) and 2253(a).\\nThe Tenth Circuit did not rely upon a separate unit-of-prosecution analysis when determining the propriety of multiple charges or counts.\\nThe Government correctly notes that the Tenth Circuit in Rentz explains that the exact definition of possession, carry, and use remains unsettled. However, this does not diminish the Tenth Circuit's holding in Rentz that where, as here, the Government charges two \\u00a7 924(c) counts for the same single carry, use, or possession, the multiple charges are in error.\"}"

us/1300342.json

@@ -0,0 +1 @@
+"{\"id\": \"1300342\", \"name\": \"TRISTRATA TECHNOLOGY, INC., Plaintiff-Appellee, v. ICN PHARMACEUTICALS, INC., Defendant-Appellant\", \"name_abbreviation\": \"Tristrata Technology, Inc. v. ICN Pharmaceuticals, Inc.\", \"decision_date\": \"2004-06-08\", \"docket_number\": \"No. 04-1388\", \"first_page\": \"341\", \"last_page\": \"341\", \"citations\": \"101 F. App'x 341\", \"volume\": \"101\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Federal Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T18:57:26.130768+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"TRISTRATA TECHNOLOGY, INC., Plaintiff-Appellee, v. ICN PHARMACEUTICALS, INC., Defendant-Appellant.\", \"head_matter\": \"TRISTRATA TECHNOLOGY, INC., Plaintiff-Appellee, v. ICN PHARMACEUTICALS, INC., Defendant-Appellant.\\nNo. 04-1388.\\nUnited States Court of Appeals, Federal Circuit.\\nJune 8, 2004.\\nRaymond A. Kurz, Principal Attorney, Hogan & Hartson, Washington, DC, for f\\u2019 \\u2019 s \\u2019 \\u2019 Defendant-Appellant.\\nMichael O. Warnecke, Principal Attorney, Mayer, Brown, Chicago, IL, for Plaintiff-Appellee.\", \"word_count\": \"65\", \"char_count\": \"484\", \"text\": \"ORDER\\nThe parties having so agreed, it is\\nORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).\"}"

us/1417286.json

@@ -0,0 +1 @@
+"{\"id\": \"1417286\", \"name\": \"Sergio JASSO, Petitioner, v. John ASHCROFT, Attorney General, Respondent\", \"name_abbreviation\": \"Jasso v. Ashcroft\", \"decision_date\": \"2005-01-13\", \"docket_number\": \"No. 03-71043; Agency No. A76-844-175\", \"first_page\": \"318\", \"last_page\": \"319\", \"citations\": \"118 F. App'x 318\", \"volume\": \"118\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Ninth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T19:33:37.376946+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BEEZER, HALL, and SILVERMAN, Circuit Judges.\", \"parties\": \"Sergio JASSO, Petitioner, v. John ASHCROFT, Attorney General, Respondent.\", \"head_matter\": \"Sergio JASSO, Petitioner, v. John ASHCROFT, Attorney General, Respondent.\\nNo. 03-71043.\\nAgency No. [ AXX-XXX-XXX ].\\nUnited States Court of Appeals, Ninth Circuit.\\nSubmitted Jan. 10, 2005.\\nDecided Jan. 13, 2005.\\nSergio Jasso, Escal\\u00f3n, CA, pro se.\\nRegional Counsel, Western Region Immigration & Naturalization Service, Laguna Niguel, CA, Timothy P. Mcllmail, U.S. Department of Justice Civil Div./Office of Immigration Lit., Washington, DC, for Respondent.\\nBefore BEEZER, HALL, and SILVERMAN, Circuit Judges.\\nThe panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).\", \"word_count\": \"440\", \"char_count\": \"2848\", \"text\": \"MEMORANDUM\\nSergio Jasso, a native and citizen of Mexico, petitions pro se for review of the decision of the Board of Immigration Appeals (\\\"BIA\\\") dismissing his appeal from the Immigration Judge's (\\\"IJ\\\") decision denying his applications for asylum, withholding of removal, and cancellation of' removal. We have jurisdiction under 8 U.S.C. \\u00a7 1252 to review the denial of Jasso's application for asylum and withholding of removal. We review the BIA's factual findings for substantial evidence. Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir.2004). We deny in part, and dismiss in part the petition for review.\\nThe record does not compel a finding that Jasso satisfied his burden of proving past persecution. See Prasad v. INS, 47 F.3d 336, 340 (9th Cir.1995). In addition, substantial evidence supports the BIA's conclusion that Jasso did not demonstrate an objectively reasonable fear of future persecution. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir.2003). Accordingly, Jasso necessarily failed to satisfy the more stringent standard for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).\\nWe lack jurisdiction to review Jasso's challenge to the BIA's denial of his cancellation application for failure to demonstrate the requisite \\\"exceptional and extremely unusual hardship.\\\" See 8 U.S.C. \\u00a7 1252(a)(2)(B); Romero-Torres v. Ashcroft, 327 F.3d 887, 888 (9th Cir.2003) (holding that \\\"an 'exceptional and extremely unusual hardship' determination is a subjective, discretionary judgment that has been carved out of our appellate jurisdiction.\\\"). Accordingly, we dismiss this portion of the petition for review.\\nPursuant to Desta v. Ashcroft, 365 F.3d 741 (9th Cir.2004), Jasso's motion for stay of removal included a timely request for stay of voluntary departure. Because the stay of removal was granted, the voluntary departure period was also stayed, nunc pro tunc, as of the filing of the motion for stay of removal and this stay will expire upon issuance of the mandate.\\nPETITION FOR REVIEW DENIED in part and DISMISSED in part.\\nThis 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.\"}"

us/141905.json

@@ -0,0 +1 @@
+"{\"id\": \"141905\", \"name\": \"Ramon Duran HERNANDEZ, Petitioner, v. John ASHCROFT, United States Attorney General, Michael Heston, District Director, Immigration and Naturalization Service, and James W. Ziglar, Immigration and Naturalization Service, Respondents\", \"name_abbreviation\": \"Hernandez v. Ashcroft\", \"decision_date\": \"2003-07-21\", \"docket_number\": \"No. 02-9513\", \"first_page\": \"764\", \"last_page\": \"768\", \"citations\": \"72 F. App'x 764\", \"volume\": \"72\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Tenth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T18:53:57.417514+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ramon Duran HERNANDEZ, Petitioner, v. John ASHCROFT, United States Attorney General, Michael Heston, District Director, Immigration and Naturalization Service, and James W. Ziglar, Immigration and Naturalization Service, Respondents.\", \"head_matter\": \"Ramon Duran HERNANDEZ, Petitioner, v. John ASHCROFT, United States Attorney General, Michael Heston, District Director, Immigration and Naturalization Service, and James W. Ziglar, Immigration and Naturalization Service, Respondents.\\nNo. 02-9513.\\nUnited States Court of Appeals, Tenth Circuit.\\nJuly 21, 2003.\\nJames S. Phillips, Jr., Phillips & Phillips, Wichita, KS, for Petitioner.\\nTanya S. Wilson, Office of the United States Attorney, Topeka, KS, Linda S. Wendtland, A. Ashley Tabaddor, Cindy Ferrier, General Counsel, Washington, DC, Mike Comfort, Acting Dist. Dir., Immigration & Naturalization Service, Denver, CO, Pap\\u00fa Sandhu, Office of Immigration Litigation, Washington, DC, for Respondents.\\nBefore TACHA, Chief Judge, HOLLOWAY and EBEL, Circuit Judges.\\nPublished in full, see 2003 WL 22438587.\", \"word_count\": \"2461\", \"char_count\": \"14787\", \"text\": \"ORDER AND JUDGMENT\\nEBEL, Circuit Judge.\\nPetitioner Ramon Duran Hernandez (hereinafter \\\"Duran\\\"), a Mexican citizen, was ordered removed from the United States in 1998 after he falsely claimed United States citizenship at the U.S.\\u2014 Mexico border. He was barred from reentering the country for five years. Only two years later, however, Duran reentered the United States illegally and thereafter applied for adjustment of his immigration status. The Immigration and Naturalization Service rejected his application and reinstated his prior removal order.\\nDuran, represented by counsel, filed a habeas corpus petition in the United States District Court for the District of Kansas, challenging the INS's reinstatement procedures on due process grounds. The district court, adopting the recommendation of a magistrate judge, transferred the petition to this Court pursuant to 28 U.S.C. \\u00a7 1631. Both parties assume, and we agree, that the petition is now before us as a direct appeal from the INS adjudication.\\nBecause we find that Duran has failed to prove that he was prejudiced by the INS's reinstatement proceedings, we AFFIRM the decision of the INS.\\nBACKGROUND\\nOn April 12, 1998, Mexican national Ramon Duran Hernandez was caught attempting to enter the United States illegally with his American citizen wife at the Presidio, Texas, Point of Entry. Later that day, in a signed, sworn statement to an INS officer, Duran admitted that he was not a U.S. citizen and that both he and his wife had falsely claimed that he was a U.S. citizen when they tried to cross the border that morning. Duran admitted knowing that it was a crime to falsely claim U.S. citizenship. Duran also admitted to having lived illegally in the United States for 10 years prior to his reentry attempt and to having been previously ordered deported in 1997.\\nThat same day, the INS found that Duran was inadmissible to the United States under the Immigration and Nationality Act (\\\"INA\\\"), which renders inadmissible any alien who falsely represents his United States citizenship. Immigration and Nationality Act \\u00a7 212(a)(6)(C)(ii), 8 U.S.C. \\u00a7 1182(a)(6)(C)(ii). Pursuant to the applicable provision of the INA, the INS ordered Duran returned to Mexico. 8 U.S.C. \\u00a7 1225(b)(l)(A)(i), INA \\u00a7 235(b)(l)(A)(i). The INS gave Duran a written notice stating that 1) he was barred from reentering the United States for five years from the date of his departure (April 12, 1998); 2) if he wished to reenter the United States before the end of that five-year period, he must ask for and receive permission to do so from the Attorney General (by using application forms available at any U.S. Consulate or INS office); and 3) that he could be criminally prosecuted for reentering without such permission. Duran signed the notice and walked back to Mexico.\\nOn January 15, 2000 \\u2014 within the five-year ban \\u2014 Duran again illegally entered the United States by walking through the desert near El Paso, Texas, in violation of 8 U.S.C. \\u00a7 1182(a)(9) (A) (i), INA \\u00a7 212(a)(9)(A)(i). He was not caught at that time and remained in the United States.\\nOn April 13, 2001, Duran applied (through his wife) for adjustment of status based on his 1997 marriage to an American citizen, under 8 U.S.C. \\u00a7 1255(i), INA \\u00a7 245(i ) Eight months later, on December 18, 2001, the INS denied Duran's application. To be eligible for adjustment of status, an alien must be \\\"admissible to the United States for permanent residence.\\\" 8 U.S.C. \\u00a7 1255(i )(2)(A), INA \\u00a7 245(i )(2)(A). Because Duran had reentered the United States within the five-year ban and without first applying to the Attorney General for permission, the INS found that Duran was not \\\"admissible to the United States for permanent residence\\\" and therefore was ineligible to have his status adjusted. The INS also noted that Duran had admitted to having illegally entered the United States ten years before his 1998 attempt.\\nThe next day \\u2014 December 19, 2001 \\u2014 the INS began and concluded the process of reinstating Duran's 1998 removal order. During that process, Duran gave a second sworn statement to the INS. Before he gave that statement, he signed a section of the Sworn Statement form acknowledging that he understood his rights, that anything he said could be used against him, and that he did not wish to consult with a lawyer. In his handwritten answers to preprinted questions on the Sworn Statement form, Duran admitted, inter alia, 1) that he had been deported on April 12, 1998; 2) that he last entered the United States on January 15, 2000, \\\"near El Paso, TX. walking in the desert\\\"; and 3) that he never applied to the U.S. Attorney General for permission to reenter the country after his initial deportation.\\nThat same day (December 19, 2001), the INS had Duran sign a Notice of Intent/Decision to Reinstate Prior Order, which stated that the INS would be reinstating its April 12, 1998 removal order pursuant to 8 U.S.C. \\u00a7 1231(a)(5), INA \\u00a7 241(a)(5). That statute \\u2014 which is at the core of Duran's appeal \\u2014 states as follows:\\n(5) Reinstatement of removal orders against aliens illegally reentering. If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this Act, and the alien shall be removed under the prior order at any time after the reentry.\\n8 U.S.C. \\u00a7 1231(a)(5), INA \\u00a7 241(a)(5) (emphasis added). The Notice form informed Duran that he \\\"may contest this determination by making written or oral statement [sic] to an immigration officer. You do not have the right to a hearing before an immigration judge.\\\" Duran checked a box stating that he did not wish to make a statement, and he signed the form. The INS then issued its final reinstatement decision, which consisted of an INS official's signature under one sentence of preprinted text that stated, \\\"Having reviewed all available evidence, the administrative file and any statements made or submitted in rebuttal, I have determined that the above-named alien is subject to removal through reinstatementof [sic] the prior order, in accordance with section [illegible on the blurred copy in the record, but presumably \\u00a7 241(a)(5) ] of this Act.\\\"\\nOn December 31, 2001, Duran filed (through counsel) a habeas corpus petition with the United States District Court for the District of Kansas. First, he challenged the constitutionality of the INA's reinstatement provisions as violative of his due process rights. Second, he challenged the INS's purported failure to pursue his application for adjustment of status before reinstating the prior removal order. A magistrate judge recommended that the case be transferred to the Court of Appeals, because \\\"reinstatement is actually the enforcement of a prior final removal order,\\\" over which the Court of Appeals has exclusive jurisdiction. Citing Castro-Cortez v. INS, 239 F.3d 1037, 1046 (9th Cir.2001), the magistrate judge concluded that transfer, rather than dismissal, was appropriate \\\"because jurisdiction in these cases has been in a state of flux.\\\" The district court agreed and ordered the case transferred to the Tenth Circuit.\\nDISCUSSION\\nCongress has declared that petitions for review of INS orders of removal must be filed \\\"with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings.\\\" 8 U.S.C. \\u00a7 1252(b)(2), INA \\u00a7 242(b)(2). Duran did not follow this procedure; rather, he bypassed direct review and filed a habeas corpus petition (his first error) in the district court (his second error) under 28 U.S.C. \\u00a7 2241. The district court then transferred that petition to the Tenth Circuit under the transfer statute, 28 U.S.C. \\u00a7 1631, which permits a court to transfer a case where there is \\\"a want of jurisdiction\\\" and transfer would be \\\"in the interest of justice.\\\" Id. The district court's use of the transfer statute cures Duran's second error, the filing of his petition in the district court as opposed to the Tenth Circuit. That leaves us with only his first error\\u2014 filing a habeas petition instead of a direct appeal \\u2014 to consider. Both parties proceed as if Duran had properly filed a direct appeal with this court. In the interests of justice, we will also treat Duran's petition as if it had been so filed and review it as a direct appeal of the INS's action. See Lopez v. Heinauer, 332 F.3d 507, 510-11 (8th Cir.2003); Batista v. Ashcroft, 270 F.3d 8, 12 (1st Cir.2001); Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir.2001).\\nTurning to the merits of Duran's appeal, his due process claim fails because he has not proven that he suffered prejudice as a result of the INS's reinstatement procedures. The regulation governing reinstatement of removal orders, 8 C.F.R. \\u00a7 241.8(a), directs an immigration officer to determine three facts before reinstating a prior order of removal: 1) whether the alien was subject to a prior order of removal; 2) whether the alien is the same alien who was previously removed; and 3) whether the alien illegally reentered the United States. Because Duran contests none of these facts, he cannot prove that additional procedural safeguards would have changed the result in his case. This failure to prove prejudice leads us to reject Duran's due process claim. See Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 302 (5th Cir.2002); United States v. Garcia-Martinez, 228 F.3d 956, 964 n. 10 (9th Cir.2000); Salazar v. Ashcroft, 38 Fed.Appx. 812, 814 (3d Cir.2002).\\nWe also reject Duran's adjustment of status claim. Duran asserts that the INS reinstated his removal order before it adjudicated his adjustment of status application. The record proves that the opposite is true: the INS adjudicated and rejected Duran's adjustment of status application on December 18, 2001, and it reinstated his removal order one day later, on December 19, 2001. Duran's claim to the contrary clearly lacks merit.\\nFor the foregoing reasons, we AFFIRM the decision of the INS.\\nThis order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.\\n. That statute allows an alien who is physically present in the United States to apply to the Attorney General for adjustment of status upon submission of a $1,000 application fee. 8 U.S.C. \\u00a7 1255(i)(l)(C), INA \\u00a7 245(t )(1)(C).\\nUpon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if \\u2014 (A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and (B) an immigrant visa is immediately available to the alien at the time the application is filed.\\n8 U.S.C. \\u00a7 1255(0(2), INA \\u00a7 245(0(2) (emphasis added).\\n. On April 5, 2002, Duran filed an emergency motion for a stay of deportation pending appeal, as he was to be deported to Mexico later that day. In an April 5 Order, we denied the motion. Although neither the parties nor the record mention Duran's current whereabouts, we presume that he is now back in Mexico.\\n. Although \\u00a7 1252 speaks specifically of judicial review of \\\"orders of removal,\\\" every circuit to address the question has found \\u00a7 1252 to cover review of reinstatement orders as well. See, e.g., Gomez-Chavez v. Perryman, 308 F.3d 796, 801 (7th Cir.2002); Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 295 (5th Cir.2002); Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 861, 868 (8th Cir.2002); Bejjani v. INS, 271 F.3d 670, 674 (6th Cir.2001); Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 105 (4th Cir.2001); Castro-Cortez v. INS, 239 F.3d 1037, 1043 (9th Cir.2001).\\nOur Circuit has two conflicting unpublished opinions regarding this issue. Compare Lopez-Herrera v. INS, No. 00-9501, 2000 WL 91946, at *1, 2000 U.S.App. LEXIS 774, at *3 (10th Cir. Jan. 20, 2000), (\\\"[Tjhis court is specifically barred from reviewing the agency's reinstatement of a prior deportation order.\\\"), with Yanez-Torres v. INS, No. 99-9504, 2000 WL 130801, at *1, 2000 U.S.App. LEXIS 1525 (10th Cir. Feb. 4, 2000), (\\\"We have jurisdiction to review the final order reinstating the 1981 deportation order under 8 U.S.C. \\u00a7 1252(a)(1)....\\\"). We recognize that unpublished decisions are not binding authority, United States v. Goff, 314 F.3d 1248, 1250 (10th Cir.2003), and therefore follow the weight of authority in other circuits and our own opinion in Yanez-Torres. Accordingly, we hold that we have jurisdiction to hear petitions for direct review of reinstatement orders under 8 U.S.C. \\u00a7 1252, INA \\u00a7 242.\\n. We note that Duran's petition, although filed in the wrong court, was timely. Petitions for review of orders of removal must be filed within thirty days of the date of the final order of removal. 8 U.S.C. \\u00a7 1252(b)(1), INA \\u00a7 242(b)(1). Petitioner's reinstatement order became final on December 19, 2001, and he filed his habeas petition twelve days later, on December 31, 2001.\\n. Duran's brief states, \\\"Petitioner originally filed a habeas corpus action while incarcerated in Kansas, but the United States District Court ordered the case transferred to the Tenth Circuit Court of Appeals. The case is now proceeding as a petition for review of the agency action.\\\" Pet. Br. at 2 (emphasis added). For its part, the Government's brief states, \\\"A district court transferred Duran's case (initially brought as a habeas petition) to this Court under 28 U.S.C. \\u00a7 1631.... This Court has jurisdiction to review the INS' reinstatement order pursuant to Section 242(a)(1) of the INA, 8 U.S.C. \\u00a7 1252(a)(1).\\\" Gov't Br. at 2 (emphasis added).\"}"

us/1451653.json

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+"{\"id\": \"1451653\", \"name\": \"SIT JAY SING, Plaintiff, v. H. D. NICE, as District Director of the Immigration and Naturalization Service, San Francisco District, and Paul Posz, as Regional Commissioner of the Immigration and Naturalization Service, Southwest Region, Defendants\", \"name_abbreviation\": \"Sit Jay Sing v. Nice\", \"decision_date\": \"1960-03-11\", \"docket_number\": \"Civ. No. 38745\", \"first_page\": \"292\", \"last_page\": \"297\", \"citations\": \"182 F. Supp. 292\", \"volume\": \"182\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the Northern District of California\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:52:30.747423+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SIT JAY SING, Plaintiff, v. H. D. NICE, as District Director of the Immigration and Naturalization Service, San Francisco District, and Paul Posz, as Regional Commissioner of the Immigration and Naturalization Service, Southwest Region, Defendants.\", \"head_matter\": \"SIT JAY SING, Plaintiff, v. H. D. NICE, as District Director of the Immigration and Naturalization Service, San Francisco District, and Paul Posz, as Regional Commissioner of the Immigration and Naturalization Service, Southwest Region, Defendants.\\nCiv. No. 38745.\\nUnited States District Court N. D. California, S. D.\\nMarch 11, 1960.\\nRobert S. Bixby, Fallon, Hargreaves & Bixby, San Francisco, Cal., for plaintiff.\\nLynn J. Gillard, U. S. Atty., Charles E. Collett, Asst. U. S. Atty., San Francisco, Cal., for defendants.\", \"word_count\": \"2956\", \"char_count\": \"17283\", \"text\": \"YOUNGDAHL, District Judge.\\nThis action for a declaratory judgment came on to be heard on cross-motions for summary judgment. Since the material facts are not in dispute and only a question of law is involved the Court is free to grant summary judgment.\\nPlaintiff, \\\"a native and citizen of the Republic of China\\\", seeks a decision that his application to the Immigration and Naturalization Service (hereinafter referred to as the Service) for adjustment of his status to that of a permanent resident alien, under \\u00a7 249 of the Immigration and Nationality Act of June 27, 1952, 8 U.S.C.A. \\u00a7 1259, as amended, may not be denied on the ground that he has failed to reside continuously in the United States since a date prior to June 28, 1940. Paragraph (b) of this provision sets forth the second of four prerequisites to the exercise of the Attorney-General's discretion. The plaintiff asks the Court to hold that he has satisfied this prerequisite.\\nPlaintiff first entered the United States on June 17, 1939, at which time he was thirty-five years of age. This entry was as a non-immigrant crewman. He overstayed his shore leave and on June 26, 1942, a warrant for arrest in deportation proceedings was served on him. A hearing was accorded and on February 12, 1943 he was ordered deported. Because of the war, the order was stayed and the plaintiff was permitted to remain in the United States on bond.\\nOn September 22, 1945, the plaintiff sailed as a seaman from San Francisco aboard the S.S. \\\"Fra Berlanga\\\", a vessel of United States registry; on November 13, 1945; after a foreign voyage, the \\\"Fra Berlanga\\\", with plaintiff aboard, entered the United States at Seattle, Washington. When the plaintiff sailed on September 22, 1945, the Service noted \\\"executed\\\" on the warrant of deportation which had issued on February 12, 1943 and added \\\"Note: This alien departed at no expense to Government as member of crew on above-named vessel [Fra Berlanga].\\\"\\nThe narrow issue presented by this case is whether plaintiff's voyage, coming at a time when a warrant of deportation was outstanding against him, interrupted the continuous residence he had established in the United States since June 17, 1939. Plaintiff concedes that \\\"by voluntarily departing from the United States at a time when a warrant for his deportation was outstanding [he] effected his own deportation.\\\" The argument is made, however, that an interruption in residency does not automatically and always result from a deportation. While \\\"deportation does interrupt residence in the overwhelming majority of cases\\\", contends plaintiff, it does not do so in this case because plaintiff departed voluntarily aboard a vessel of United States registry.\\nThe plaintiff places his principal reliance upon Matter of M-, 4 I & N Adm. Dec. 82 (Oct. 9,1950) in which the Board of Immigration Appeals held that a departure from the United States one week prior to the expiration of seven years from the date of the alien's entry did not preclude favorable action under the 7th proviso to \\u00a7 3 of the Immigration Act of February 5, 1917, even though at the time of the alien's departure, a warrant of deportation was outstanding against him.\\nThe statutory provision involved in Matter of M- reads:\\n\\\" aliens returning after a temporary absence to an unrelin-quished United States domicile of seven consecutive years may be admitted in the discretion of the Attorney General, and under such conditions as he may prescribe.\\\"\\nEven assuming that \\\"domicile\\\" in the 7th proviso means the same thing as \\\"residence\\\" in \\u00a7 249, the Court does not believe Matter of M- is applicable here.\\nFirst, a later administrative decision, Matter of P-, Int.Dec. No. 976 (October 16, 1958) squarely holds that \\\"a departure from the United States as a result of exclusion or expulsion proceedings breaks the continuity of residence for the purpose of section 249, regardless of the period of time the alien is outside the United States after such departure\\\".\\nSecond, it would not be appropriate to accept the plaintiff's contention in light of the history of \\u00a7 249 and its evident purpose. \\u00a7 249 was first enacted into law on March 2, 1929. It provides for the making of a record of admission for permanent residence of an alien; its purpose was to \\\"provide relief for aliens who entered the United States prior to July 1, 1924 [now June 28, 1940], where there is inability to locate a record of their permanent admission in conformity with the immigration law at the time of their entry\\\". The Act of June 29, 1906 required that a reg istry be made of certain facts concerning each alien arriving in the United States and that \\\"a certificate of such registry, with the particulars thereof\\\" be granted to each alien. \\u00a7 249 was passed in order to permit the naturalization, at the discretion of the Government, of aliens who did not possess this certificate of registry \\u2014 a certificate which was required for naturalization. The alien might not have the certificate because he entered unlawfully, or he might not have it because, even though his entry was lawful, his records were lost. For illustrative cases see United States v. Ness, 1917, 245 U.S. 319, 38 S.Ct. 118, 62 L.Ed. 321; Linklater v. Perkins, 1934, 64 App.D.C. 69, 74 F.2d 473. In short, \\u00a7 249 is an ameliorative provision; it appears to have been designed to aid a person who has formed a substantial tie to the United States and who should not, if we are to remain humane, be automatically denied naturalization because of his inability to furnish the certificate. \\u00a7 249 would not appear to be particularly pertinent to a seaman whom the Government had deported, whose wife and children live in a foreign country (Japan), and whose claim to remain in the United States results from a record of continuous shore leave violations.\\nA third reason why Matter of M- is inapplicable can be seen from an exam\\u00ednation of the Board's disposition, towards the factual backdrop: M- was married to a native-born citizen of the United States; he was supporting his wife and her child by a prior marriage; they were about to adopt another child; and, most importantly, his departure was only one week short of the seven-year period. The Board expressly stated: \\\"The equities are all with the respondent\\\" (p. 92) and the law in Matter of M- must be read in light of this statement.\\nIf the plaintiff had been deported in 1945 at Government expense, he could not satisfy \\u00a7 249. Simply because the Government permitted him to leave at his own expense does not mean a different result should obtain. Clearly, this latter procedure was preferred by the plaintiff. In September, 1945, the war had ended and he was amenable to deportation to China. Instead of this, he desired to ship out as a seaman. The Government does not appear to have had any reason to insist that it pay his way back to China and thus did not object to his leaving aboard the \\\"Fra Berlanga\\\". But the Government's consent to the method of deportation does not lessen the force of the deportation; it does not make plaintiff's deportation something less than a Government-paid-for deportation.\\nThe plaintiff's motion for a summary judgment is denied.\\nThe defendants' motion for a summary judgment is granted.\\nAn order accompanies this memorandum.\\n. Complaint, paragraph II, to which the defendants' answer states: \\\"no information or belief.\\\"\\n. \\\"Record of admission for permanent residence in the case of certain aliens who entered the United States prior to June 28, 1940.\\n\\\"A record of lawful admission for permanent residence may, in the discretion of the Attorney General and under such regulations as he may prescribe, be made in the case of any alien, as of the date of the approval of his application or, if entry occurred prior to July 1, 1924, as of the date of such entry, if no such record is otherwise available and such alien shall satisfy the Attorney General that he is not inadmissible under section 1182 (a) of this title insofar as it relates to criminals, procurers and other immoral persons, subversives, violators of the narcotic laws or smugglers of aliens, and he establishes that he\\u2014\\n\\\"(a) entered the United States prior to June 28, 1940;\\n\\\"(b) has had his residence in the United States continuously since such entry;\\n\\\"(c) is a person of good moral character; and\\n\\\"(d) is not ineligible to citizenship.\\\" (72 Stat. 546)\\n. Both the plaintiff and the defendants agree that this was the plaintiff's initial entry into the United States.\\nPlaintiff need establish continuous residence in the United States only from June 27, 1940. Note 2, supra. Hence, a Question and answer at p. 2 of a sworn statement made by plaintiff on September 11, 1952 to the Service becomes irrelevant :\\n\\\"Q. How, when and where did you enter the United States the first time?\\nA. In 1924 in San Francisco as a seaman.\\\"\\n. In addition, the Order granted a waiver of inadmissibility under the 9th proviso of \\u00a7 3 of the Act of February 5, 1917, 8 U.S.C.A. \\u00a7 1182(d) (3) for entry into the United States from time to time as a bona fide crewman. And see \\u00a7 3(5) of the Act of May 26, 1924, 8 U.S.C.A. \\u00a3 1101(a) (15) (D).\\n. The Service does not question that the plaintiff was a \\\"resident\\\" in the United States from June 17, 1939 to September 22, 1945, within the meaning of \\u00a7 249.\\nFollowing 1945, the plaintiff continued to sail aboard vessels and was admitted to the United States at various times as a crewman under the provisions of \\u00a7 3(5) of the Act of May 26, 1924. On June 4, 1951, plaintiff was admitted to San Francisco under \\u00a7 3(5) for a period of twenty-nine days. On July 17,1951, he applied for suspension of deportation under the provisions of \\u00a7 19(0) of the Act of February 5,1917. A warrant of arrest in deportation proceedings was issued on September 17, 1951, but the plaintiff voluntarily departed before service.\\nOn September 12, 1952, he applied for permission to reapply after arrest and deportation, but this was denied on January 12, 1953 and no appeal was taken.\\nOn January 3, 1954, the plaintiff entered the United States under \\u00a7 252(a) of the Act of June 27, 1952, 8 U.S.O.A. \\u00a7 1282(a), and on February 9, 1954, the 29-day shore leave having expired, a warrant of arrest in deportation was issued charging that at the time of entry the plaintiff was inadmissible because he had been arrested and deported and had not been granted permission to re-apply. A hearing was held on February 10, 1954 and the plaintiff was allowed to depart at his own expense. No appeal was taken. Plaintiff departed on March 20, 1954 as a crewman.\\nOn June 30, 1954, plaintiff applied for permission to reapply for admission after deportation and permission was granted on June 30, 1954. However, plaintiff did not pursue the matter but, rather, shipped out.\\nOn December 13, 1957, plaintiff was admitted to the United States as a crewman for 29 days. Having overstayed this period, an order to show cause in deportation proceedings was issued on February 17, 1958. A hearing was held on February 26, 1958 and, once again, plaintiff was given the privilege of departing voluntarily. He departed on March 22, 1958.\\nOn December 2, 1958, the plaintiff filed the instant application. He alleged that he resided continuously in the United States since June 17,1939 and he requested \\u00a7 249 relief. The application was denied by the District Director on January 19, 1959 on the ground that plaintiff's departure on September 22, 1945 constituted a break in residence. Plaintiff appealed to the Regional Commissioner who, on April 13, 1959, affirmed the District Director's order. A further appeal was taken and on October 20, 1959, the Assistant Commissioner affirmed, holding that plaintiff's voluntary departure at a time when a warrant of deportation was outstanding constituted a deportation and \\\"[therefore, the continuity of his residence was broken.\\\" An additional ground was given: from November, 1945 to November, 1958, the plaintiff entered the United States as a non-immigrant crewman and on several occasions stated to the Service that he intended to reship as a crewman; the application form did not show a place of residence in the United States during this period but set forth only a mail drop. Having exhausted his administrative remedies, the plaintiff, on December 9, 1959, filed this suit for declaratory judgment.\\nBecause of the disposition of the question posed in the text, the Court need not consider whether residency, within the meaning of \\u00a7 249, is made out by shipping aboard a vessel of United States registry, when the vessel ships foreign. In its discussion of whether deportation interrupts residency, the Court has assumed that residency can be made out while aboard such a vessel.\\n. Points and Authorities in Support of Plaintiff's Motion for Summary Judgment, p. 3.\\nExpress provision is made for the voluntary departure of aliens at their own expense. \\u00a7 19(c) of the Act of February 5, 1917, 39 Stat. 889-890, as amended, Act of June 28, 1940, 54 Stat. 671-673, Act of December 8, 1942, 56 Stat. 1044; Act of July 1, 1948, 62 Stat. 1206. The statute applicable today is \\u00a7 101(g) of the Act of June 27, 1952, 66 Stat. 172, 8 U.S.C.A. \\u00a7 1101(g).\\n. \\\"Residence\\\" is defined as: \\\"the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent \\\" \\u00a7 101(a) (33) of the Act of June 27, 1952, 8 U.S.C.A. i 1101(a) (33).\\n\\\"Domicile\\\" is not defined by the statute; in Matter of M-, the Board said: \\\" 'domicile' must bear a relationship to actual residence and the broader legal fiction of domicile has no application. One may in a technical sense retain a domicile in a certain place without maintaining a residence there, and though he may be absent therefrom for many years. The rulings of the Attorney General require [for applicability of 7th proviso relief] more than a mere technical domicile, they require a residence.\\\" (at p. 92)\\n. In Kwong Hai Chew v. Colding, 1953, 344 U.S. 590, at page 596, note 4, 73 S. Ct. 472, 477, 97 L.Ed. 576, the terms were used as follows;\\n\\\"In this opinion 'exclusion' means preventing someone from entering the United States who is actually outside of the United States or is treated as being so. 'Expulsion' means forcing someone out of the United States who is actually within the United States or is treated as being so. 'Deportation' means the moving of someone away from the United States, after his exclusion or expulsion.\\\"\\n. Report of Senate Committee on Immigration to accompany H.R. 349, 70th Cong., 2nd Sess., p. 4. The provision is not mentioned in the House Report, see H.R. No. 13, 70th Cong., 1st Sess., because it was first inserted as an amendment in the Senate and agreed to in conference.\\n. \\u00a7 1 of the Act of June 29, 1906, 84 Stat. 596.\\n. \\\"We regard the act of 1929 as a remedial statute intended to minimize the frauds and mitigate the hardships resulting from the absence of contemporary records of arriving immigrants. The language of the act is 'any alien,' and the hardship it seeks to remedy is as' great in the case of a lawfully entered alien whose registry is inadvertently omitted or unfortunately lost as in the case of an unlawful alien who smuggles himself across the frontier.\\\" Linklater v. Perkins, supra, at page 72 of 69 App.D.C., at page 476 of 74 IT .2d.\\n. On September 12, 1945, Z. B. Jackson, Chief, Adjudications Division of the Immigration Service in San Francisco, sent the following communication to Stan Olson, Chief, Entry and Departure Section for San Francisco:\\n\\\"The above named alien has advised this office that he has signed on the SS 'Ira [sic] Berlanga' of the United Fruit Line as a 2nd cook. The vessel is now docked at Pier 24 and is expected to depart on September 21, 1945. He signed on the above-named vessel under the name Billy Sing.\\n\\\"It is requested that your office verify the departure of this alien in order that warrant of deportation may be executed and the bond exonerated.\\\"\\nThus it is clear that the Service knew of the plaintiff's proposed departure and assented.\\n. The Court need not consider the problem of where the plaintiff may be sent. In Cheng Fu Sheng v. Rogers, D.C.D.C. 1959, 177 F.Supp. 281, Judge Holtzoffi held that aliens could not be deported to Formosa. His reasoning was based on the enumeration of eight possibilities as places of deportation in \\u00a7 243 of the Act of June 27, 1952, 8 U.S.C.A. \\u00a7 1253, each one of which is a \\\"country\\\". Since Formosa is not a \\\"country\\\", deportation to Formosa was held impermissible. However, in Cheng there was a stipulation that the Government intended to execute the warrants by deporting the plaintiffs to Formosa. In the instant case, there is no such stipulation.\"}"

us/160530.json

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+"{\"id\": \"160530\", \"name\": \"Irwin EISENSTEIN, Plaintiff-Appellant, v. Christie WHITMAN, New Jersey Administrative Office of the Courts, Psi Technologies Inc. (Policy Studies Inc.), Jeb Bush, John Doe, Jane Doe, Defendants-Appellees\", \"name_abbreviation\": \"Eisenstein v. Whitman\", \"decision_date\": \"2001-02-14\", \"docket_number\": \"No. 00-6051\", \"first_page\": \"24\", \"last_page\": \"26\", \"citations\": \"4 F. App'x 24\", \"volume\": \"4\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Second Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T21:30:17.036195+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present GRAAFEILAND, CALABRESI and SOTOMAYOR, Circuit Judges.\", \"parties\": \"Irwin EISENSTEIN, Plaintiff-Appellant, v. Christie WHITMAN, New Jersey Administrative Office of the Courts, Psi Technologies Inc. (Policy Studies Inc.), Jeb Bush, John Doe, Jane Doe, Defendants-Appellees.\", \"head_matter\": \"Irwin EISENSTEIN, Plaintiff-Appellant, v. Christie WHITMAN, New Jersey Administrative Office of the Courts, Psi Technologies Inc. (Policy Studies Inc.), Jeb Bush, John Doe, Jane Doe, Defendants-Appellees.\\nNo. 00-6051.\\nUnited States Court of Appeals, Second Circuit.\\nFeb. 14, 2001.\\nIrwin Eisenstein, Brooklyn, NY, pro se.\\nMichael J. Haas, Assistant Attorney General; George N. Cohen, on the brief, for John J. Farmer, Jr., Attorney General of New Jersey, Trenton, NJ, for appellees Whitman and New Jersey Administrative Office of the Courts.\\nSara A. Genzel-Steffen, Assistant Attorney General, for Robert A. Butterworth, Attorney General of Florida, Tallahassee, FL, for appellee Bush.\\nAndrew W. Loewi, Brownstein Hyatt & Farber, P.C., Denver, CO, for appellee PSI.\\nPresent GRAAFEILAND, CALABRESI and SOTOMAYOR, Circuit Judges.\", \"word_count\": \"560\", \"char_count\": \"3554\", \"text\": \"SUMMARY ORDER\\nUPON DUE CONSIDERATION, it is ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be and hereby is AFFIRMED.\\nIrwin Eisenstein appeals from the district court's (Hellerstein, J.) dismissal of his suit, under the False Claims Act (\\\"FCA\\\"), 31 U.S.C. \\u00a7 3729, and 42 U.S.C. \\u00a7 1983, 1985, and 1988 against Governor Jeb Bush, Governor Christine Whitman, the New Jersey Administrative Office of the Courts (\\\"AOC\\\"), and Policy Studies, Inc. (\\\"PSI\\\"). Eisenstein also appeals from the district court's denial of a motion for reconsideration, and moves this court for a writ of coram nobis, for sanctions, and for inclusion in the record of allegedly newly discovered evidence.\\nAs the district court found, Bush, Whitman, and the AOC lack sufficient contacts with New York to establish personal jurisdiction. In addition, because the FCA bars courts from hearing qui tam suits based on publicly disclosed information where the plaintiff was not an original source of the information, there is no subject matter jurisdiction over PSI as to the FCA claims. We also agree with the district court that because PSI is not a state actor and did not act under color of state law or as part of a conspiracy, Eisenstein's claims under \\u00a7 1983, 1985, and 1988 must fail. Finally, the district court correctly determined that Eisenstein's allegations of fraud against PSI were wholly conclusory and did not satisfy the heightened pleading requirements for fraud set out in Rule 9(b) of the Federal Rules of Civil Procedure.\\nDenial of Eisenstein's motion for reconsideration was well within the district court's discretion. See Devlin v. Transp. Communications Int'l Union, 175 F.3d 121, 132 (2d Cir.1999) (stating that the standard of review for denial of a motion for reconsideration is abuse of discretion).\\nWe have considered all of plaintiffs arguments, and find them to be without merit. The judgment of the district court is therefore AFFIRMED, and all of Eisenstein's motions to this court are DENIED.\\n. In the original order, the district court dismissed the claim against Bush for lack of venue. In subsequent orders, however, the court clarified that the claim was dismissed for lack of personal jurisdiction.\\n. The district court did not explicitly address Eisenstein's claims against John Doe and Jane Doe. When, however, an action is dismissed as to all defendants who have been served and only unserved defendants \\\"remain,\\\" as is the case here, the entry of a final judgment is not precluded \\\"since there is no basis for believing there will be any further adjudications in the action, or . for holding the dismissals subject to revision.\\\" Leonhard v. United States, 633 F.2d 599, 608 (2d Cir.1980).\"}"

us/1768099.json

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+"{\"id\": \"1768099\", \"name\": \"Heinz HABER, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee\", \"name_abbreviation\": \"Haber v. United States\", \"decision_date\": \"1987-10-21\", \"docket_number\": \"No. 87-1102\", \"first_page\": \"1051\", \"last_page\": \"1056\", \"citations\": \"831 F.2d 1051\", \"volume\": \"831\", \"reporter\": \"Federal Reporter 2d Series\", \"court\": \"United States Court of Appeals for the Federal Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T21:30:49.920860+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MARKEY, Chief Judge, NEWMAN, and BISSELL, Circuit Judges.\", \"parties\": \"Heinz HABER, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.\", \"head_matter\": \"Heinz HABER, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.\\nNo. 87-1102.\\nUnited States Court of Appeals, Federal Circuit.\\nOct. 21, 1987.\\nEdward Ord, Ord & Norman, of San Francisco, Cal., argued for plaintiff-appellant.\\nB. Paul Klein, Dept, of Justice, of Washington, D.C., argued for defendant-appellee. With him on the brief were Roger M. Olsen, Asst. Atty. Gen., Michael L. Paup and Gilbert S. Rothenberg.\\nBefore MARKEY, Chief Judge, NEWMAN, and BISSELL, Circuit Judges.\", \"word_count\": \"3063\", \"char_count\": \"18568\", \"text\": \"PAULINE NEWMAN, Circuit Judge.\\nMr. Heinz Haber (taxpayer) appeals an Order of the United States Claims Court granting the government's motion to dismiss his suit for refund based on foreign taxes paid. Haber v. United States, 8 Cl.Ct. 371 (1985). We reverse.\\nBackground\\nTaxpayer, a resident of the Federal Republic of Germany, relying on the ten-year limitation period set in the Internal Revenue Code for seeking refund based on credit for foreign taxes paid, filed claims in June, 1977 for the tax years 1970 and 1971, in the amounts of $21,338 and $17,059. The Internal Revenue Service sent taxpayer, through his accountant in the United States Mr. Lasker, a notice of disallowance dated November 14, 1977, stating that the ten-year limitation period for filing such claims did not apply, and that the claims were barred. The Service was at that time involved in litigation based on that position, and in 1978 received three adverse decisions: Allatt v. United States, 218 Ct.Cl. 694 (1978); Hart v. United States, 585 F.2d 1025, 218 Ct.Cl. 212 (Ct.C1.1978); and United States v. Woodmansee, 578 F.2d 1302 (9th Cir.1978). Similar adverse decisions had been received in the past, e.g., Bank of America v. United States, 377 F.2d 575 (Ct.C1.1967). These decisions held that 26 U.S.C. \\u00a7 6511(d)(3)(A) did indeed provide a ten-year limitation period for applying for refunds based on foreign taxes paid, and that other, shorter, periods of limitation did not apply.\\nMr. Lasker averred that he had telephone conversations with IRS personnel in Washington, D.C. and in the Philadelphia IRS Service Center where foreign taxpayers file returns \\\"during the two year period following the 1977 notice; that during these conversations he was \\\"lead [sic] to believe that the notice, dated November 14, 1977 . had been withdrawn and that an extension had been granted\\\" so that he \\\"could continue to pursue the matter on an administrative level\\\". He stated that he could not now (in 1985) remember the specific dates and names of the IRS personnel with whom he spoke because of the long time period between these conversations and the giving of his declaration. He stated that he discussed the Hart and Woodmansee cases with the IRS representatives, and that he \\\"did rely on these representations\\\" and believed that the 1977 dis-allowance was withdrawn. The IRS records of taxpayer Haber's files for this period have been destroyed, and thus provide no enlightenment as to the IRS' side of these conversations, the actions it took, and its reasons.\\nOn October 26,1982 the IRS sent taxpayer a notice of disallowance of his claim for the tax year 1970. This notice made no reference to the notice dated November 14, 1977, to which it was substantially identical. Both the 1977 and the 1982 notices contained the provision:\\nIf you wish to bring suit or proceedings for the recovery of any tax, penalties, or other moneys for which this disallowance notice is issued, you may do so by filing such a suit with the United States District Court having jurisdiction, or with the United States Court of Claims. The law permits you to do this within 2 years from the mailing date of this letter.\\nTaxpayer filed suit in the Claims Court on October 17, 1984, within two years after the 1982 notice of disallowance. The Claims Court held that taxpayer's suit is barred because it was not filed within 2 years after the 1977 notice.\\nDiscussion\\nTaxpayer contends that the period of limitation for this suit is measured from the October 26,1982 notice of disallowance, because the IRS's withdrawal of the 1977 notice removed it as an official action to which the limitation period applied.\\nThe taxpayer's version of the facts concerning the 1977 notice is uncontradicted. Further, as the Claims Court observed, factual inferences are required to be drawn favorably to Haber on this government motion to dismiss, which requires that \\\"the facts alleged by plaintiff [be accepted] as true.\\\" Featheringill v. United States, 217 Ct.Cl. 24, 26 (1978). See also Jewelers Vigilance Committee v. Ullenberg Corp., 823 F.2d 490, 492, 2 USPQ2d 2021, 2023 (Fed. Cir.1987).\\nThe issue thus is whether the taxpayer was entitled to rely on the oral statement by the Service that the 1977 notice was withdrawn. The government states that a prudent accountant should have filed suit within two years after the November 1977 notice, and that taxpayer did not act reasonably.\\nTaxpayer argues that it was clear, in view of the several contemporaneous decisions adverse to the IRS position, that the 1977 disallowance was in error. Since taxpayer was plainly entitled to the refund, he argues, it was reasonable to believe the oral statement that the notice was withdrawn. The government conceded before the Claims Court that the IRS could orally withdraw a notice of disallowance.\\nReinforcing taxpayer's argument is the 1982 notice of disallowance, which makes no reference to the 1977 notice. The 1982 notice supports an inference that the IRS considered the 1977 notice withdrawn because, without such withdrawal, there was no reason for the IRS to send a new notice five years later. No such reason has been offered by the government. The IRS offered no evidence to rebut the inference that the IRS considered that it was writing on a clean slate in its 1982 disallowance of the claim. The destruction by the Service of records of active cases has not been justified, and requires that the government face the same adverse inferences therefrom as would a private person. The government can not prevail on unsupported arguments that could be defeated by information reasonably expected to be contained in its destroyed files.\\nThe Claims Court found that the taxpayer did not act reasonably, in his inaction during the period after receipt of the 1977 notice. We agree that no sense of urgency wells from taxpayer's approach to the entire matter. The taxpayer's apparent unconcern for the passage of time is matched only by that of the Service, which issued a notice of disallowance in 1982 on a refund claim filed in 1977 for a 1970 tax, said notice bottomed on a legal position on which the courts have regularly held against the Service.\\nTaxpayer cites Beardsley v. United States, 126 F.Supp. 775 (D.Conn.1954), to support the argument that he was entitled to rely on the oral advice that the first notice was withdrawn. In Beardsley the taxpayers received a notice of disallowance without the customary thirty day letter. Taxpayers' attorney was orally told that the notice of disallowance could be ignored. More than two years later taxpayers received a letter \\\"reaffirming\\\" the disallowance. In rejecting the government's position that suit was barred by the statute of limitations measured from the date of the first notice, the court observed that \\\"the statute does not in specific terms prohibit withdrawal, revocation, or cancellation of the notice by the Commissioner\\\", id. at 777, and held that the original notice had been, in effect, withdrawn. The Claims Court stated that \\\"the facts in Beardsley closely parallel [Haber's] situation\\\", but distinguished Beardsley because there the parties had stipulated that an authorized IRS official had told the Beardsleys to ignore the first notice. Haber asserts that because the IRS failed to produce records during discovery, he could not adduce evidence that the personnel who led Mr. Lasker to believe that the first notice had been withdrawn were \\\"authorized\\\".\\nAlthough the significance of missing records is to be determined with respect to the circumstances of each case, the government's challenge to the authority of the personnel who gave the oral notice of withdrawal can not shift to taxpayer the burden of proving that the personnel were not unauthorized. The burden of coming forward remains with the government, and the prejudicial effect of its destruction of active files weighs against it. See Belton v. Commissioner, 562 F.Supp. 30, 31-33 (D.D.C.1982) (based on \\\"inactivity of the agency, and the government's [indication] that the files may have been destroyed\\\", the court found estoppel based on \\\"the cumulative prejudicial effect of the facts\\\").\\nThe government also argues that the two-year period for filing suit can be extended only in writing , and that an oral withdrawal of a notice is prohibited by the statute. In essence, the IRS argues that a withdrawal of a disallowance is the equivalent of an indefinite extension of time for filing suit. This position is not supported by the statute. Section 6532(a)(2) presupposes, and requires, that an effective notice of disallowance exists. If that notice was withdrawn, there is nothing to extend. The issue at bar is not whether there was an extension of a term of limitation; it is whether the term ever started.\\nWe conclude that the Claims Court erred in holding that taxpayer could not have reasonably believed that the November 1977 notice was withdrawn. Our predecessor court has stated that \\\"taxpayers and the court can and should reasonably view the second disallowance as incorporating a reconsideration of the . claim previously rejected____\\\" Southeast Bank of Orlando v. United States, 676 F.2d 660, 662, 230 Ct.Cl. 277 (1982). On the totality of cir cumstances herein discussed, we hold that taxpayer was entitled to rely on the IRS oral representation that the notice was withdrawn. The dismissal is reversed, and the case is remanded for proceedings on the merits of taxpayer's claim.\\nREVERSED AND REMANDED.\\n. 26 U.S.C. \\u00a7 6511(d)(3)(A): Special period of limitation with respect to foreign taxes paid or accrued.\\nIf the claim for credit or refund relates to an overpayment attributable to any taxes paid or accrued to any foreign country or to any possession of the United States for which credit is allowed against the tax imposed by subtitle A in accordance with the provisions of section 901 or the provisions of any treaty to which the United States is a party, in lieu of the 3-year period of limitation prescribed in subsection (a), the period shall be 10 years from the date prescribed by law for filing the return for the year with respect to which the claim is made.\\n. 26 U.S.C. \\u00a7 6532(a)(2): The 2-year period prescribed in paragraph (1) shall be extended for such period as may be agreed upon in writing between the taxpayer and the Secretary or his delegate.\"}"

us/1882982.json

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+"{\"id\": \"1882982\", \"name\": \"Clayton COFFEY, et al., Plaintiffs-Appellants, v. FOAMEX L.P., and Recticel Foam Corporation, Defendants-Appellees\", \"name_abbreviation\": \"Coffey v. Foamex L.P.\", \"decision_date\": \"1993-08-06\", \"docket_number\": \"No. 92-5990\", \"first_page\": \"157\", \"last_page\": \"163\", \"citations\": \"2 F.3d 157\", \"volume\": \"2\", \"reporter\": \"Federal Reporter 3d Series\", \"court\": \"United States Court of Appeals for the Sixth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"Before: MERRITT, Chief Judge; and GUY and BATCHELDER, Circuit Judges.\", \"parties\": \"Clayton COFFEY, et al., Plaintiffs-Appellants, v. FOAMEX L.P., and Recticel Foam Corporation, Defendants-Appellees.\", \"head_matter\": \"Clayton COFFEY, et al., Plaintiffs-Appellants, v. FOAMEX L.P., and Recticel Foam Corporation, Defendants-Appellees.\\nNo. 92-5990.\\nUnited States Court of Appeals, Sixth Circuit.\\nSubmitted June 18, 1993.\\nDecided Aug. 6, 1993.\\nSidney W. Gilreath, Richard Baker, Jr. (briefed), Gilreath & Associates, Knoxville, TN, for plaintiffs-appellants.\\nCharles T. Herndon, IV (briefed), Johnson City, TN, Henry W. Killeen, III, Harris, Beach & Wilcox, Buffalo, NY, for defendants-appellees.\\nBefore: MERRITT, Chief Judge; and GUY and BATCHELDER, Circuit Judges.\", \"word_count\": \"3158\", \"char_count\": \"20470\", \"text\": \"BATCHELDER, Circuit Judge.\\nPlaintiffs, three employees of defendants, and their wives, filed a complaint in District Court on October 11, 1991, claiming the plaintiffs (including their wives and children) suffered neurological injuries and illness caused by their exposure to chemicals at the workplace, primarily a chemical known as \\\"TDI.\\\" They claimed that the defendants \\\"actively practiced fraud upon the plaintiffs\\\" by failing to warn them of the dangers of contamination and by maintaining a hazardous work environment of which the plaintiffs were unaware. The complaint included a loss of consortium claim on behalf of the wives. The same three employees had each earlier filed state workers' compensation claims, and received benefits, for respiratory problems they said were caused by chemical exposure.\\nThe defendants filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6), arguing that plaintiffs had failed to state a claim upon which relief may be granted, and that the claims were barred under the exclusivity provisions of the Tennessee workers' compensation law. Plaintiffs amended their complaint on February 28,1992 to show proper diversity of citizenship.\\nOn March 4, 1992, the District Court dismissed the complaint in part, treating defendants' motion and attached affidavits as a motion for summary judgment. The District Court denied defendants' motion to dismiss the wives' personal injury claims. On appeal, we dismissed sua sponte, holding that the order was not final and appealable since it had preserved the wives' claims. Coffey v. Foamex, 966 F.2d 1451 (6th Cir.1992). Plaintiffs voluntarily dismissed these remaining claims without prejudice on July 16, 1992, rendering the order final and appealable. They filed a timely notice of appeal on July 22, 1992.\\nPlaintiffs claimed that defendants' fraud consisted of failure to warn them about the dangers of exposure to the chemicals, false representations about the chemicals' safety, and failure to disclose their knowledge about the dangers to plaintiffs, who lacked such information; these acts rose to the level of intentional tort. Plaintiffs now argue that since Tennessee recognizes fraud as an intentional tort, the Tennessee workers' compensation law $loes not bar their lawsuit. The injuries claimed in the suit at bar, they insist, are not the same as those for which they were compensated under workers' compensation; payments and settlements plaintiffs agreed to in the context of the earlier claim do not bar them from recovering for subsequent injuries caused by further contamination. We disagree.\\nWe review grants of summary judgment motions de novo. In reviewing a summary judgment disposition, the Court of Appeals must determine whether the party opposing the motion has put forth evidence which, if produced at trial, would withstand the movant's motion for a directed verdict. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Bare allegations by the non-moving party will not alone suffice; they must be supported by sufficient evidence such that \\\"reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict.\\\" Mitchell v. Toledo Hospital, 964 F.2d 577, 581-82 (6th Cir.1992) (quoting Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512). Where the non-moving party \\\"fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,\\\" granting the motion for summary judgment is appropriate. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.\\n1. Exclusivity of remedy under Tennessee workers' compensation law.\\nThe Tennessee Workers' Compensation Law provides:\\nRight to compensation exclusive \\u2014 (a) The rights and remedies herein granted to an employee subject to the Workers' Compensation Law on account of personal injury or death by accident . shall exclude all other rights and remedies of such employee . at common law or otherwise, on account of such injury or death.\\nTenn.Code Ann. \\u00a7 50-6-108 (1991). As in other jurisdictions, the courts have carved out an exception for intentional torts committed by an employer against an employee, see Cooper v. Queen, 586 S.W.2d 830, 833 (Tenn.App.1979) (Tenn. cert. denied); these torts give rise to a common law action for damages, id.\\nHowever, the Tennessee courts have consistently defined the scope of the intentional tort exception narrowly, holding that \\\"gross or criminal negligence\\\" is not considered an intentional tort for this purpose. Cooper, 586 S.W.2d at 833. The Cooper court explained, quoting a treatise on workers' compensation law:\\nSince the legal justification for the common law action is the non-accidental character of the injury from the defendant employer's standpoint, the common law liability of the employer cannot be stretched to include accidental injuries caused by the gross, wanton, willful, deliberate, intentional, wreekless, [sic] culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury.\\nId., (quoting Larson, Workmen's Compensation (desk ed.) \\u00a7 68.10). The court approvingly cited two cases from other jurisdictions in which \\\"gross or criminal negligence\\\" had been held not to constitute intentional torts; both cases involved employers which had \\\"knowingly permitted a hazardous work condition to exist\\\" and nonetheless directed workers to work in such conditions. Id. at 833-834.\\nWhile the Tennessee Supreme Court has never given its specific imprimatur to the intentional tort exception, the Tennessee courts have stuck with Cooper and have not extended its rule. In King v. Ross Coal, 684 S.W.2d 617 (Tenn.App.1984), the court followed Cooper and expounded on the rationale behind the narrow exception.\\nThe Workers' Compensation Law takes away from the employee his common law rights and gives him others, on the guarantee that these substituted rights shall be generously awarded, both for foregoing his common law rights and in consideration of the obligations of his employer to keep his employee from becoming a public charge. The legislature has made the rights of the employee and employer the exclusive remedy. Those who accept benefits under an act of this kind must likewise take the burdens.\\nKing, 684 S.W.2d at 619-20 (citations omitr., ted). The King court restated the requirement that the plaintiff show \\\"actual intent . to cause injury_ We hold that it takes more than a mere inference of tortious intent to convert the defendant's negligence into an intentional tort.\\\" Id. at 620. In continuing this line of eases, the Court of Appeals has declined to adopt the arguments of plaintiffs who argue for a less stringent standard such as the \\\"substantially certain [to cause injury]\\\" standard for intentional tort. \\\"Any departure from the stated public policy of this jurisdiction must come from the legislature or the Supreme Court.\\\" Mize v. Conagra, 734 S.W.2d 334, 336 (Tenn.App.1987).\\n2. Fraud as an intentional tort falling within the exception.\\nIn Brewer v. Monsanto Corp., 644 F.Supp. 1267 (M.D.Tenn.1986), plaintiffs- alleged, among other things, that their employer fraudulently concealed from them the \\\"true nature\\\" of PCB chemical contamination which ultimately caused them injury. Brewer, 644 F.Supp. at 1270. Noting that under Cooper, a corporation cannot perpetrate a tort \\\"in person\\\" upon an employee, and that an intentional tort by a co-employee is actionable, but not directly against the employer, the court held that \\\"a corporate employer [is] liable for intentional torts carried out at the behest of the corporate employer but through corporate employees.\\\" Id. at 1275. Since fraud is an intentional tort under Tennessee law, id. (citing Wynne v. Allen, 66 Tenn. 312 (7 Baxt.) (1874)), it falls outside the exclusivity provisions of the Workers' Compensation Law.\\nThe problem with Brewer is its assumption that since the Tennessee courts consider fraud to be an intentional tort, allegations of fraud resulting in worker injury necessarily fall outside the workers' compensation scheme. As the Tennessee cases show, the existence of the defendant's actual intent, not the nature of the tort, determines whether common law suit is permitted; again, \\\"it takes more than a mere inference of tortious intent to convert the defendant's negligence into an intentional tort.\\\" King, 684 S.W.2d at 620. See also Cooper, 586 S.W.2d at 833 (\\\"There is a distinct difference in fact and law between gross or criminal negligence and actual intent to injure.\\\"). Cases in which an employer \\\"knowingly permit[s] a hazardous work condition to exist [or] knowingly order[s] claimant to perform an extremely dangerous job . fall[ ] short of the kind of actual intention to injure that robs the injury of accidental character.\\\" Mize, 734 S.W.2d at 336 (quoting King, 684 S.W.2d at 619); see also Gonzales v. Alman Construction Co., 857 S.W.2d 42, 48 (Tenn. App.1993) (\\\"The law in this State provides that a breach of the employer's duty to provide a safe place to work is not equated with an actual intent to injure nor with intentional tortious conduct.\\\"). To permit a plaintiff otherwise covered by workers' compensation to pursue common law claims for gross negligence or willful misconduct simply by pleading them in terms of fraudulent concealment would be to circumvent completely the exclusivity provision of the workers' compensation scheme for all torts involving greater culpability than simple negligence.\\nThe facts alleged by plaintiffs do not, in any event, make out a prima facie intentional tort under Tennessee law. To establish the intentional tort of \\\"fraudulent misrepresentation\\\" in Tennessee, the alleged misrepresentation\\n(1) must have been a representation as to an existing fact; (2) must have been false; (3) must have been relied upon; and (4) must have been so material that it determined the conduct of the parties seeking relief.\\nAtkins v. Kirkpatrick, 823 S.W.2d 547, 552 (Tenn.App.1991). Plaintiffs Coffey, Owens, and Hawk aver that they \\\"used various chemicals produced and, in so using, breathed their vapors and/or came into contact with the chemicals on their skin.\\\" Complaint at 4, \\u00b6 11. The date of this occurrence is not specified. The complaint alleges that \\\"the chemicals . were in a defective condition or were unreasonably dangerous.\\\" Id., \\u00b6 13. The defendants were acting \\\"outside the scope and course of defendants' capacity as an employer [and] actively practiced fraud upon the plaintiffs and failed to warn plaintiffs of TDI contamination.\\\" Id. at 5, \\u00b6 20. \\\"The defendants, through their agents, are guilty of fraud as to the plaintiffs by exposing them to hazardous conditions in the work environment of which the plaintiffs were unaware.\\\" Id. at 5-6, \\u00b6 21. The \\\"agents\\\" mentioned are nowhere named or specified.\\nFed.R.Civ.P. 9(b) requires that averments of fraud must be stated with particularity. The Sixth Circuit reads this rule liberally, however, requiring a plaintiff, at a minimum, to \\\"allege the time, place, and content of the alleged misrepresentation on which he or she relied; the fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the fraud.\\\" Ballan v. Upjohn Co., 814 F.Supp. 1375, 1385 (W.D.Mich.1992) (citing Michaels Bldg. Co. v. Ameritrust Co. N.A., 848 F.2d 674, 679 (6th Cir.1988)). However, \\\"allegations of fraudulent misrepresentation must be made with sufficient particularity and with a sufficient factual basis to support an inference that they were knowingly made.\\\" Id. The threshold test is whether the complaint places the defendant on \\\"sufficient notice of the misrepresentation,\\\" allowing the defendants to \\\"answer, addressing in an informed way plaintiffs [sic] claim of fraud.\\\" Brewer, 644 F.Supp. at 1273.\\nHere, while the complaint fairly clearly alleges the existence of a dangerous workplace, the manner in which injury occurred, and, to a lesser extent, the injuries which resulted, the complaint is vague at best as to which specific acts or omissions of the defendants amounted to fraudulent misrepresentation. The allegation that \\\"defendants . actively practiced fraud upon the plaintiffs\\\" is purely eonclusory. That they \\\"faded to warn plaintiffs of TDI contamination,\\\" without more, does not give rise to fraudulent misrepresentation; neither does \\\"exposing [plaintiffs] to hazardous conditions in the work environment of which the plaintiffs were unaware.\\\" More importantly, perhaps, the complaint does not properly set out allegations of plaintiffs' reliance on defendants' supposed misrepresentations. The allegations set out in Brewer were apparently more detailed, even given the Brewer court's evidently generous consideration of the complaint. Nonetheless, despite the plaintiffs' failure to satisfy the requirements of Rule 9(b), in the absence of defendants' motion for more definite statement under Rule 12(e), dismissal on this basis alone would not be appropriate. See Hayduk v. Lanna, 775 F.2d 441, 445 (1st Cir.1985) (in meeting Rule 9(b) particularity requirement, \\\"federal courts must be liberal in allowing parties to amend their complaints\\\").\\nMore problematic to plaintiffs is the fact that all three had previously alleged injuries due to contact with the same harmful chemicals, and had received settlement payments under workers' compensation. This fact constituted the basis for the District Court's granting of summary judgment in favor of the defendants. Plaintiffs, of course, argue that this complaint is a different kettle of fish; they claim defendants \\\"fraudulently withheld important information on which each plaintiff relied,\\\" and that the present personal injury claims, for \\\"neurological\\\" disorders, constitute different injuries and claims based on them are not barred by the favorable disposition of the prior claims. Plaintiffs say that had the information (presumably, that the chemicals were dangerous) been available to them, they would not have continued working for defendants.\\nIt is difficult as a matter of logic to see how injuries such as plaintiff Hawk's burned larynx, for which he received compensation for three days of disability, and plaintiff Coffey's \\\"permanent partial disability\\\" due to inhalation of vapors, for which he was paid over fifty thousand dollars in settlement, would not have put the plaintiffs on notice that they were in danger, regardless of defendants' representations. More difficult to see is how plaintiffs relied on defendants' supposed representations of the chemicals' safety in the wake of these injuries, all of which happened several years ago. \\\"Where the plaintiff has actual knowledge . that the representation is false, an action for fraud will not lie.\\\" Pusser v. Gordon, 684 S.W.2d 639, 642 (Tenn.App.1984). Reliance on a fraudulent misrepresentation must be reasonable; \\\"if one knows the truth and is not deceived, he is not defrauded.\\\" Maddux v. Cargill, Inc., Til S.W.2d 687, 691-92 (Tenn.App.1989). Where the injured party is put on notice of potential harm or damage, even if given assurances of safety as well, his reliance on those assurances must be reasonable. If he does not attempt to investigate or otherwise guard against that about which he was warned, his reliance is rendered unreasonable, and he cannot claim fraudulent misrepresentation. See Atkins v. Kirkpatrick, 823 S.W.2d 547, 552 (Tenn.App.1991) (where agent told purchaser of lot that lot was approved for septic system and was buildable, but cautioned him to contact the inspectors for confirmation, and inspectors said lot was approved \\\"so long as it had not been disturbed by cut or fill,\\\" but purchaser did no further investigation, purchaser has no claim for fraudulent misrepresentation against agent where lot had been filled and was not fit for building). Since plaintiffs have neither alleged in their complaint nor provided evidence of facts which would support a finding that they reasonably relied on defendants' alleged fraudulent misrepresentation, plaintiffs have failed to establish an essential element of their claim, Celotex, 477 U.S. at 322, 106 S.Ct. at 2552, and their suit thus cannot survive summary judgment.\\n3. Settlements for previous claims as barring further claims.\\nThe District Court granted summary judgment in favor of defendants because plaintiffs had formerly agreed to settlement payments under workers' compensation for injuries caused by chemical exposure. While we do not believe (nor do we think the District Court meant to imply) that because an injured worker has received compensation, he is forever barred from claiming compensation for distinct future injuries that might be caused by the same hazard, we agree that in this case, because of the factors we have discussed, plaintiffs' claims are barred due to their previous successful claims.\\nWhile all three plaintiffs previously received compensation for chemically-caused injuries, Coffey's present case is the weakest, since, as the District Court pointed out, he specifically agreed to settle \\\"all claims of whatever kind or nature.\\\" But so far as the present complaint sets out the facts, there is no indication as to any of the plaintiffs that the inhalations and other contacts with the chemicals causing the complained-of neurological damage occurred on occasions different from those which caused the earlier injuries. We must assume that the harmful contacts were the same. Where a worker is compensated, or is entitled to compensation, for disability or for medical expenses, under the Workers' Compensation Act, \\\"the exclusive remedy provision of the Worker's [sic] Compensation Act extends to the entire injury and all its damages.\\\" Clayton v. Pizza Hut, Inc., 673 S.W.2d 144, 146 (Tenn.1984). Again, \\\"[t]hose who accept benefits under an act of this kind must likewise take the burdens.\\\" King v. Ross Coal Co., Inc., 684 S.W.2d 617, 619 (Tenn.App.1984) (in context of plaintiffs already receiving workers' compensation benefits). See also White v. Apollo-Lakewood, Inc., 290 Ark. 421, 720 S.W.2d 702 (1986) (where plaintiffs injured by inhaling chemicals received benefits, and then went back to work, direct, suit against employer, including allegations of fraudulent concealment, were barred by similar exclusive remedy provisions of Arkansas workers' compensation law). Even assuming plaintiffs' version of the facts to be undisputed, as we must in reviewing a grant of summary judgment, plaintiffs' assertion that the present complaint seeks compensation for injuries wholly different from those for which they have already been compensated is merely a \\\"bare allegation\\\" unsupported by fact. Mitchell, 964 F.2d at 582. The District Court did not err in concluding that the present complaint is barred.\\nFor the reasons given, the order of the District Court dismissing plaintiffs' claims is AFFIRMED.\\n. This court, in exercising diversity jurisdiction, applies the substantive state law in accordance with Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Where the relevant state law is unsettled, the court rules based on its assumption of how the highest state court would rule if faced with the same case. Comm'r of Internal Revenue v. Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967).\\n. For a criticism of Brewer's application of the Workers' Compensation Law exclusivity provisions, see Joseph H. King, Jr., The Exclusiveness of an Employee's Workers' Compensation Remedy Against His Employer, 55 Tenn.L.Rev. 405 (Spring 1988).\\n. We note that the fact that plaintiffs have already received workers' compensation benefits distinguishes the present case from Brewer.\"}"

us/2063274.json

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+"{\"id\": \"2063274\", \"name\": \"John W. GARDNER, Secretary of Health, Education and Welfare, Appellant, v. Eli M. HALL, Appellee\", \"name_abbreviation\": \"Gardner v. Hall\", \"decision_date\": \"1966-09-12\", \"docket_number\": \"No. 8650\", \"first_page\": \"132\", \"last_page\": \"136\", \"citations\": \"366 F.2d 132\", \"volume\": \"366\", \"reporter\": \"Federal Reporter 2d Series\", \"court\": \"United States Court of Appeals for the Tenth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T20:06:28.282448+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John W. GARDNER, Secretary of Health, Education and Welfare, Appellant, v. Eli M. HALL, Appellee.\", \"head_matter\": \"John W. GARDNER, Secretary of Health, Education and Welfare, Appellant, v. Eli M. HALL, Appellee.\\nNo. 8650.\\nUnited States Court of Appeals Tenth Circuit.\\nSept. 12, 1966.\\nJack H. Weiner, Attorney, Department of Justice (John W. Douglas, Asst. Atty. Gen., Bruce Green, U. S. Atty., David L. Rose, Attorney, Department of Justice, on the Brief), for appellant.\\nLowry McKee, Tulsa, Okl., for appellee.\\nBefore MURRAH, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.\", \"word_count\": \"1936\", \"char_count\": \"11704\", \"text\": \"SETH, Circuit Judge.\\nThis action was commenced by a claimant for old age insurance benefits under the Social Security Act to review a decision by the Secretary of Health, Education and Welfare. 42 U.S.C.A. \\u00a7 405(g). The trial court reversed the decision of the Secretary which had imposed deductions against all of the claimant's old age insurance benefits for the year 1961 and thereafter. The trial court ruled there was no substantial evidence to sustain the findings of the Secretary.\\nThe record shows that the claimant when he attained the age of sixty-five years made application for old age insurance benefits. He was denied benefits on his application because the agency held that he had received remuneration of more than the permitted amount for services rendered to a family ranching corporation. 42 U.S.C.A. \\u00a7 403(f) (3). The claimant requested reconsideration and received a Reconsideration Determination in which it was stated that the benefits were denied because there was undistributed income and earnings \\\"channeled to him\\\" in the family corporation. A hearing was had before the Hearing Examiner who also found that the claimant was not entitled to benefits. Upon a review by the Appeals Council a decision was rendered which affirmed the decision of the Hearing Examiner with some modification. The claimant thereupon commenced the proceedings in the United States District Court from which this appeal has been taken.\\nThe record shows that the claimant, Mr. Hall, together with his wife and three adult sons, operated a farm or ranch as a partnership. Each of the part ners had a one-fifth interest in the partnership, but none of the partners drew salaries for their services. Mr. Hall was in active charge of the ranch during the partnership operation, and Mrs. Hall was likewise active in doing the bookkeeping for the ranch and related activities. In December 1960 a corporation was formed for the operation of the ranch, and each of the former partners received one-fifth of the capital stock and received credit on the corporate books in recognition of their partnership accounts. The corporation elected the claimant as president, his wife secretary-treasurer, and the three sons as vice presidents. Each of the officers, except Mr. Hall, received a salary of $12,000.00 a year. Mr. Hall received no salary. The corporation elected to be treated for federal income tax purposes as a partnership under Subchapter S of the Internal Revenue Code.\\nThe record also shows that Mrs. Hall, upon receipt of her annual salary from the corporation, would ordinarily deposit it in a joint checking account that she and her husband maintained. The record shows, however, that Mr. Hall during the period in question did not draw on this account although he was empowered to do so. Some of the household expenses were paid from this account. The balance was loaned by Mrs. Hall back to the corporation, and its accounts reflect this as a personal loan by Mrs. Hall.\\nThe claimant showed before the Hearing Examiner that he received no salary or other remuneration directly from the corporation for his personal services. The claimant's case thus showed in substance that he did perform some service to the corporation by way of advice to the other members of the family, and that this service amounted to some two or three hours of work daily. The record shows that Mrs. Hall spent some four or five hours' work daily in the performance of her services to the corporation. The claimant's case further showed that upon incorporation, all of the former partners with the exception of Mr. Hall commenced to receive salaries for their services. Testimony presented as part of the claimant's case thus showed that there was no switching of compensation from the husband to the wife at the time of the incorporation. Instead it showed that Mrs. Hall continued to perform the same services and was compensated as the other officers while Mr. Hall received nothing. In so presenting his case, the claimant met his statutory burden of proof.\\nThe Secretary's findings that Mr. Hall rendered services are based upon substantial evidence, including testimony of the claimant. The Secretary's finding as to the value of these services is likewise supported in the record. However, the principal issue throughout the proceedings has been whether or not the claimant actually received wages for these services. The Government during the course of these proceedings has advanced several theories in an attempt to demonstrate how Mr. Hall received remuneration from the corporation.\\nAs indicated above, in the initial determination and in the Reconsideration Determination, the theory adopted as to how the claimant was paid by the corporation for his services was that it was \\\"channeled\\\" to him and his wife \\\" in the form of undistributed income and dividends.\\\" It was also stated by the department that \\\"such income being called undistributed income and dividends does not alter the fact that it is actually remuneration for services being performed by the wage earner. \\\"\\nThe Hearing Examiner adopted a somewhat different theory to explain how the claimant was paid. He reasoned that since the salary paid to Mrs. Hall was deposited in the couple's joint bank account, claimant thereby received some benefit from it, and since claimant worked half as many hours as Mrs. Hall, his services were worth $6,000.00 per year. The Examiner thus stated in part that the claimant \\\" indirectly received income for his services in con nection with the business by reason of the access he had to the $12,000 per year salary received in the name of Helen Hall, his wife, by reason of their joint bank account.\\\"\\nAt the next step in the administrative proceedings, that is before the Appeals Council, the record shows their decision adopts the findings, conclusions, and inferences of the Hearing Examiner \\\" except as otherwise indicated herein.\\\" The Council does not mention the joint bank account theory in its opinion but instead discusses certain portions of the Internal Revenue Code of 1954, including Section 1375, which empowers the Commissioner of Internal Revenue to reallocate payments made from an electing small business corporation among the family shareholders.\\nThe Government on this appeal in its brief treats the issue as one of reallocation to Mr. Hall of part of the salary paid to Mrs. Hall as being within the power of the Secretary to reallocate compensation received from family corporations among members of the family.\\nThus the principal issue on this appeal revolves around the salary paid to Mrs. Hall by the corporation. Secondly it concerns the treatment as wages of undistributed profits and income of a corporation which has elected under the Federal income tax statutes to be taxed as a partnership.\\nThe Secretary has, without question, the authority and the duty to pierce any fictitious arrangements among family members, and others, to shift salary payments from one to the other when the arrangement is not in accord with reality. The cases clearly demonstrate, as in Folsom v. O'Neal, 250 F.2d 946 (10th Cir.), where a person receiving a salary was not a bona fide employee the payment may be ignored for qualification purposes. Or in Poss v. Ribicoff, 289 F. 2d 10 (2d Cir.), where there was a shifting of salary from husband to wife, and similarly in Flemming v. Lindgren, 275 F.2d 596 (9th Cir.); Newman v. Celebrezze, 310 F.2d 780 (2d Cir.), and Dondero v. Celebrezze, 312 F.2d 677 (2d Cir.). However, there must be facts clearly developed in the record to support such a reallocation of salary.\\nThe record before us contains no evidence, and no findings have been made that the salary paid Mrs. Hall is in any way excessive or not earned by her. There is no evidence to show that there was any shifting in the corporation of salary payments from the husband to the wife. As described above, the Secretary found that Mr. Hall's services were worth as much as Mrs. Hall's, that he worked half as long as she did, and his services were worth $6,000.00 per year. Necessarily therefore Mrs. Hall's services were found to be worth $12,000.00 per year. This being the case, there are no dollars paid to Mrs. Hall by way of salary which in reality represent services rendered by Mr. Hall. Therefore, the series of cases cited by the Secretary in his brief for reallocation of salaries, referred to above, are not applicable here. Furthermore since Mrs. Hall's salary was all her money, the fact that it may have been deposited in a joint bank account makes no difference, she could do what she wished with it including the use of it for household expenses, and the loan of it to the corporation.\\nWe find no authority whatever which would empower the Secretary of Health, Education and Welfare to allocate a portion of the corporation's undistributed profit and income to Mr. Hall as remuneration for his services. The Commissioner of Internal Revenue has authority to make some reallocation for tax purposes among family member shareholders, but this certainly does not give the Secretary of Health, Education and Welfare such authority. The fact that there is a Subchapter S corporation here concerned makes no difference, as the corporate entity must be respected. There is no evidence, nor any finding whatever that the corporation was in any manner a sham or a pretense; instead it was an entirely bona fide corporate entity.\\nThe findings of the Secretary are, of course, conclusive if supported by substantial evidence, 42 U.S.C.A. \\u00a7 405 (g); Folsom v. O'Neal, 250 F.2d 946 (10th Cir.); Dvorak v. Celebrezze, 345 F.2d 894 (10th Cir.), and the inferences drawn from the facts are accorded like treatment. However, when as here, the record does not contain any evidence upon which a finding of receipt of wages may be made the de\\u00f3ision of the Secretary must fail. The various theories adopted by the Secretary during the administrative and judicial proceedings to establish a constructive payment are not valid.\\nAffirmed.\"}"

us/2212787.json

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+"{\"id\": \"2212787\", \"name\": \"James E. MIDDLEBROOK, Plaintiff-Appellant, Mae Middlebrook, Plaintiff, v. CITY OF BARTLETT, TN; W.R. McClanahan, Individually and in his capacity as Director and City Engineer; Defendants-Appellees, Ken Fulmar, Individually and in his capacity as Mayor; Jay Rainey, Individually and in his capacity as Chief Administrative Officer; Charles Goforth, Individually and in his capacity as Director of Planning and Economic Development. Defendants\", \"name_abbreviation\": \"Middlebrook v. City of Bartlett\", \"decision_date\": \"2004-06-10\", \"docket_number\": \"No. 03-5570\", \"first_page\": \"560\", \"last_page\": \"562\", \"citations\": \"103 F. App'x 560\", \"volume\": \"103\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Sixth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T18:02:41.436721+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James E. MIDDLEBROOK, Plaintiff-Appellant, Mae Middlebrook, Plaintiff, v. CITY OF BARTLETT, TN; W.R. McClanahan, Individually and in his capacity as Director and City Engineer; Defendants-Appellees, Ken Fulmar, Individually and in his capacity as Mayor; Jay Rainey, Individually and in his capacity as Chief Administrative Officer; Charles Goforth, Individually and in his capacity as Director of Planning and Economic Development. Defendants.\", \"head_matter\": \"James E. MIDDLEBROOK, Plaintiff-Appellant, Mae Middlebrook, Plaintiff, v. CITY OF BARTLETT, TN; W.R. McClanahan, Individually and in his capacity as Director and City Engineer; Defendants-Appellees, Ken Fulmar, Individually and in his capacity as Mayor; Jay Rainey, Individually and in his capacity as Chief Administrative Officer; Charles Goforth, Individually and in his capacity as Director of Planning and Economic Development. Defendants.\\nNo. 03-5570.\\nUnited States Court of Appeals, Sixth Circuit.\\nJune 10, 2004.\\nRehearing Denied Aug. 19, 2004.\\nJames E. Middlebrook, Memphis, TN, pro se.\\nEdward J. McKenney, Jr., Hanover, Walsh, Jalenak & Blair, Memphis, TN, for Defendant-Appellee.\\nBefore KENNEDY and GILMAN, Circuit Judges; and SHADUR, District Judge.\\nThe Honorable Milton I. Shadur, United States District Judge for the Northern District of Illinois, sitting by designation.\", \"word_count\": \"856\", \"char_count\": \"5489\", \"text\": \"ORDER\\nJames E. Middlebrook, proceeding pro se, appeals a district court judgment dismissing his civil rights action filed pursuant to 42 U.S.C. \\u00a7 1982 and 1983; the Fair Housing Act (FHA), 42 U.S.C. \\u00a7 3601-3631; and the Tennessee Human Rights Act (THRA), Tenn.Code Ann. \\u00a7 4-21-101. 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).\\nOn September 6, 2001, Middlebrook and his wife, Mae (the plaintiffs), filed a complaint, through counsel, against the City of Bartlett, Tennessee (City), and the following City officials: Mayor Ken Fulmar, Director and Engineer W.R. McClanahan, and Chief Administrative Officer Jay Rainey. The plaintiffs subsequently amended their complaint to add Charles Goforth, the City's Director of Planning and Economic Development, as a defendant. The plaintiffs, who are African-American, alleged that the defendants refused to provide water and sewer service to their prop erty because of their race. They sought injunctive and monetary relief.\\nThe defendants filed a motion for summary judgment, to which the plaintiffs responded. The district court granted the defendants' motion in part and denied the motion in part. Specifically, the district court dismissed the plaintiffs' civil rights claims filed pursuant to \\u00a7 1982, \\u00a7 1983, and the THRA because they were time-barred. The district court dismissed the plaintiffs' claims against all of the individual defendants, except McClanahan, because the complaint contained no allegations against Fulmar and Rainey in their individual capacities and the claims against Goforth were time-barred. The plaintiffs' remaining FHA claims against the City and McClanahan were subsequently tried to a jury. The jury returned verdicts in favor of the City and McClanahan and the district court entered an order and judgment in accordance with the jury verdicts on Mary 24, 2003. James Middlebrook has filed a timely appeal. He is now proceeding pro se.\\nWhile Middlebrook has listed five issues which he desires to raise on appeal, he has not offered any argument or citations in support of those issues. The failure to present an argument in an appellate brief waives appellate review. Buziashvili v. Inman, 106 F.3d 709, 719 (6th Cir.1997); Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 881, (6th Cir.1996).\\nNevertheless, even if this court were to decide to review the unsupported issues raised by Middlebrook, he is not entitled to any relief. To the extend that Middlebrook's appellate brief may be construed as a challenge to the district court's partial grant of summary judgment, his challenge fails. See Lanier v. Bryant, 332 F.3d 999, 1003 (6th Cir.2003). Middle-brook's claims against the defendants based upon the City's failure to provide sewer and water service were time-barred by the applicable one-year statute of limitation. See Tenn.Code Ann. \\u00a7 4-21-311(d), 28-3-104(a)(3); Merriweather v. City of Memphis, 107 F.3d 396, 398 (6th Cir.1997).\\nTo the extent that Middlebrook's appellate brief may be construed as a challenge to the jury verdicts in favor of the City and McClanahan, his challenge fails as well. First, there is no evidence in the record that Middlebrook properly preserved a sufficiency of the evidence issue for appeal by moving for either a new trial or a judgment notwithstanding the verdict. See United States v. L.E. Cooke Co., 991 F.2d 336, 343 (6th Cir.1993); Dixon v. Montgomery Ward, 783 F.2d 55, 55 (6th Cir.1986). Second, Middlebrook failed to file a transcript of the proceedings held in the district court. Without a transcript, it is impossible for this court to meaningfully review the sufficiency of the evidence relied upon by the jury to support its verdicts. See Hawley v. City of Cleveland, 24 F.3d 814, 821 (6th Cir.1994); King v. Carmichael, 268 F.2d 305, 306 (6th Cir.1959).\\nFinally, to the extent that Middle-brook requests this court to add additional defendants and an \\\"additional specific issue of discrimination on appeal,\\\" his request is inappropriate. Unless exceptional circumstances are present, issues which were neither raised nor ruled upon by the district court are not properly before this court. See United States v. $100,875.00 in U.S. Currency, 70 F.3d 438, 441 (6th Cir. 1995); Noble v. Chrysler Motors Corp., Jeep Div., 32 F.3d 997,1002 (6th Cir.1994). No exceptional circumstances exist in this case.\\nAccordingly, we affirm the district court's judgment. Rule 34(j)(2)(C), Rules of the Sixth Circuit.\"}"

us/240953.json

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+"{\"id\": \"240953\", \"name\": \"Horace EVANS, Plaintiff-Appellee, v. Raymond G. MAHAL and Keith Mahal, Defendants-Appellants\", \"name_abbreviation\": \"Evans v. Mahal\", \"decision_date\": \"1962-03-07\", \"docket_number\": \"No. 14610\", \"first_page\": \"192\", \"last_page\": \"197\", \"citations\": \"300 F.2d 192\", \"volume\": \"300\", \"reporter\": \"Federal Reporter 2d Series\", \"court\": \"United States Court of Appeals for the Sixth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T02:06:16.709960+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Horace EVANS, Plaintiff-Appellee, v. Raymond G. MAHAL and Keith Mahal, Defendants-Appellants.\", \"head_matter\": \"Horace EVANS, Plaintiff-Appellee, v. Raymond G. MAHAL and Keith Mahal, Defendants-Appellants.\\nNo. 14610.\\nUnited States Court of Appeals Sixth Circuit.\\nMarch 7, 1962.\\nRobert B. Ray, Poore, Cox, Baker & McAuley, Knoxville, Tenn., for appellants.\\nJ. D. Lee, Knoxville, Tenn., for appellee.\\nBefore McALLISTER, CECIL, and WEICK, Circuit Judges.\", \"word_count\": \"2658\", \"char_count\": \"15599\", \"text\": \"PER CURIAM.\\nIn an action for damages for negligence arising out of a collision between a truck in which appellee Evans was riding as a guest, and an automobile owned by one of the appellants, who was riding in it at the time of the accident while it was being driven by another appellant who was the son of the owner, the jury brought in a verdict in favor of appellee, upon which judgment was entered. Error is claimed because of the failure of the district court to charge the jury on \\\"remote contributory negligence\\\" under the law of Tennessee, and it is claimed that, because of such error, the jury, which could have mitigated the damages, rendered an excessive verdict.\\nThe district court refused to charge the jury on remote contributory negligence, on the ground that it was not applicable to the case. The court, however, did charge that negligence was the failure to exercise ordinary care; that appellee, although a guest in the truck, was chargeable with the duty of exercising ordinary care for his own safety; that if on this occasion, or prior to this occasion, Mr. Berry, the so-called host driver of the truck in which appellant was riding as a guest, was driving the truck in a negligent manner, or, in the driving of it, he was failing to exercise the ordinary care of an ordinarily prudent person under the circumstances that then existed, then it was the duty of Mr. Evans to call attention to his failure to exercise ordinary care; and that if Mr. Berry then failed to heed the call of Mr. Evans, and continued to drive negligently, then it was appellee's duty to continue to tell him to drive with care, and that if the jury thought that, under the circumstances, he was driving so negligently for a sufficient length of time, and would not pay any attention to appellee, if he asked him to drive carefully, and that he did not drive carefully, then the jury would be at liberty to say that appellee should have demanded that Mr. Berry stop the truck, and that appellee should get out of the truck in order to protect himself. The court stated: \\\"The question is, was or was not Mr. Evans (the appellee) guilty of any negligence, contributory negligence, under the circumstances.\\\"\\nAppellants do not refer to any negligence on the part of appellee that they characterize as remote contributory negligence.\\nWe have examined the cases cited, which, however, were not quoted or commented upon by appellants, in support of their claim that it was error on the part of the district court not to charge, as requested, on the subject of the alleged remote contributory negligence of appellee.\\nIn Bejach v. Colby, 141 Tenn. 686, 214 S.W. 869, the trial court had charged the jury that if it believed, from the evidence, that plaintiff was guilty of gross contributory negligence, there could be no recovery regardless of whether it was one of the proximate causes of the accident. On appeal, it was held by the Supreme Court of Tennessee that the instruction was erroneous, since contributory negligence that proximately contributed to the injury is a bar to the action. The court went on to say that \\\"where negligence on the part of the plaintiff is remotely connected with the cause of the injury, the question to be determined is whether the defendant, by the exercise of ordinary care and skill, might have avoided the injury. If he could have done so, the remote and indirect negligence of the plaintiff cannot be set up as an answer to the action. Such negligence will only be considered in mitigation of the damages. If the plaintiff were guilty of negligence which directly and proximately contributed to bring about the injury, it would make no difference whether that negligence was slight or gross, he could not recover. If, however, such negligence did not directly contribute to bring about the injury, the plaintiff can recover; the degree of negligence being immaterial, except in so far as it goes in mitigation of the damages.\\\"\\nIn Railroad Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, the Supreme Court of Tennessee said:\\n\\\"In Byrne v. K. C., F. S. & M. R. R., 61 F. 605, 9 C.C.A., 679, 24 L.R.A. 693, a case which arose in Tennessee, Judge Lurton, in commenting on this subject said as follows: 'The Supreme Court of Tennessee has been very stringent in requiring that trial judges should instruct juries, in cases under this statute, that they must reduce damages for contributory negligence.\\n\\\" 'The court should also say to the jury that they must, if they find that the bell was not ringing, reduce the damages to be awarded to the plaintiff by reason of the intestate's gross negligence.' etc.\\\"\\nIn Saucier v. Roberts, 2 Tenn.App. 211, the facts disclose that a young girl, alighting from a streetcar, saw defendant's automobile approaching, and attempted to run from the streetcar track to the sidewalk before the automobile could reach her, but was struck down by the automobile before she reached the sidewalk. On rendition of a verdict of $300, the plaintiff assigned error on the ground that the trial court had refused a proposed instruction to the jury that if defendant had been driving his car more than twenty miles per hour in violation of the statute, then he was guilty of willful misconduct, and the plea of contributory negligence was not available to him. On review, the Court of Appeals of Tennessee held that while it was true that contributory negligence is not ordinarily available as a defense to one who acted willfully and wantonly, and that, if the wrong on the part of the defendant is so wanton and gross as to imply a willingness to inflict the injury, the plaintiff may recover, notwithstanding his own ordinary negligence. However, the court said that merely because a defendant is operating an automobile in violation of the statute fixing the speed limit at twenty miles per hour, he is not necessarily guilty of willful misconduct that will preclude him from relying on the proximate contributory negligence of the plaintiff as a defense. The Court of Appeals held that, in any event, assuming that plaintiff's request to charge had been correct, the refusal of the trial judge to give it worked no harm to plaintiff, insofar as the request related to proximate contributory negligence on the part of the plaintiff, for the reason that the jury found all of the issues touching the negligence of the defendant and the proximate contributory negligence, in favor of plaintiff. This, said the court, was the necessary implication from the verdict, as the jury was instructed that if the plaintiff was guilty of negligence which proximately contributed to the occurrence of the accident, the verdict of the jury should be for the defendant. The court declared that, in the ascertainment of the nature and extent of plaintiff's injuries and the amount of damages which would compensate plaintiff therefor, it was the duty of the jury to find whether plaintiff was guilty of any remote contributory negligence, and, if so, to reduce her damages accordingly. The trial court had charged the jury: \\\"If you find plaintiff was guilty of some negligence but that this negligence did not directly and proximately cause or contribute to the injury, then this matter must be taken into consideration by you and a reduction must be made from the damages that otherwise you would allow.\\\" The foregoing, the court said, was a proper instruction. From the above, it appears that there was substantial evidence from which the jury could have found the plaintiff to have been guilty of negligence in trying to run across the street to the sidewalk before the automobile could reach her.\\nIn McClard v. Reid, 190 Tenn. 337, 229 S.W.2d 505, the Supreme Court was called upon to pass upon the correctness of the following instruction of the trial court to the jury:\\n\\\"You are further instructed, however, that if you find from the preponderance of the evidence and believe therefrom that the plaintiff was guilty of some act of negligence upon the occasion or accident, but that this failure to exercise due care was not one of the direct and proximate causes of the collision or accident, but was only a remote circumstance or fact, then your verdict will be for the plaintiff, provided you further find and believe from the evidence that the defendant was guilty of one or more acts of negligence charged against him, provided that you further find from the evidence that the negligence of the defendant thus found was the direct and proximate cause of the accident and injury.\\\"\\nThe court held that the foregoing was error, inasmuch as the effect of this charge was \\\"to affirmatively charge that remote contributory negligence is not to be considered by the jury. The law of this State is to the contrary. It has long been the law in Tennessee that remote contributory negligence must be considered by the jury in mitigation of damages.\\\"\\nIn Anderson v. Carter, 22 Tenn.App. 118, 118 S.W.2d 891, where a judgment in favor of a plaintiff in a personal injury case was affirmed, the court said:\\n\\\"The general rule is that the question of the contributory negligence .of plaintiff, as well as the question of the negligence of the defendant, is one for submission to the jury under proper instruction by the Court. The exception to the rule is that where there is no conflict in the evidence, or where under all the evidence reasonable minds could reach but one conclusion, and then it becomes a question of law for the Court. All reasonable inferences are to be resolved in favor of the jury verdict.\\n\\\"Under the facts of the present case, when viewed most favorably to plaintiff's case, we cannot say that reasonable men could not agree as to whether the conduct of plaintiff constituted proximate negligence, so as to bar a recovery, or remote negligence which contributed to the accident. While it is true the plaintiff did not observe the city ordinance requiring him to bring his ear to a stop before entering the street, yet this of itself, although negligence per se, did not, as a matter of law, constitute remote contributory negligence, but it remained for the jury to determine the question as to whether his failure to bring his ear to a full stop before crossing the intersection constituted contributory negligence to the collision and resulting injuries. The jury could have reasonably reached the conclusion that if the automobile driven by the defendant was travelling at a rate of speed of approximately 40 miles per hour and was about 200 feet east of the street intersection when plaintiff entered the street intersection, that the violation by the defendant of the city ordinance of 25 miles per hour was the sole, proximate, and efficient cause of the collision, notwithstanding plaintiff's failure to bring his ear to a complete stop before entering and attempting to cross the street.\\\"\\nSeveral of the cases on this subject in Tennessee refer, for support of the rule therein announced, to Railroad Co. v. Martin, 113 Tenn. 266, 278, 87 S.W. 418, 421, where it was stated:\\n\\\"The wisdom and soundness of this rule must be apparent on a moment's reflection, for if, as a matter of law, it is not the duty of the jury, in the assessment of damages, to mitigate the recovery in proportion to the contribution of the plaintiff to the injuries, cases would occur where gross injustice would be inflicted upon defendants, in the exercise of the jury's discretion, in ignoring altogether the contributory negligence of the plaintiff.\\\"\\nThe above rule applies where contributory negligence is proved.\\nSee also 22 Tennessee Law Review 1030 referring to the doctrine of remote contributory negligence as peculiar to the State of Tennessee. Because the facts in the foregoing cases are so dissimilar to those of the case at bar, we do not consider any of them to be here controlling.\\nThe pleadings of appellants raised only the question of the proximate contributory negligence of appellee Evans. There were pretrial proceedings, and the order of the district court thereon set forth the theories upon which appellants relied to defeat recovery. While such order disclosed that appellants relied on the contributory negligence of appellee Evans to defeat recovery, no mention was made of the defense of remote contributory negligence. But even without consideration of the foregoing, we are of the opinion that other factors obliterate the defense of remote contributory negligence.\\nEvans was a poor man. He lives at the Soldiers' Home in Johnson City. Twenty years ago, he had been a \\\"woods foreman\\\" for the Ritter Lumber Company. The only work he has done since that time was, off and on, as a migrant farm worker on short-job farm hand work in Florida and elsewhere. Mr. Berry, the \\\"host driver\\\" of the car in which Evans was riding at the time of the accident, had given him a job two days before, skidding pulpwood. Mr. Berry did the cutting, and Evans hooked the harness onto the wood, and drove a mule with the load to Mr. Berry's truck. Evans was knocked unconscious in the collision and did not know when he was hit. It is to be emphasized that Evans was a guest, and that no possible negligence of Mr. Berry could be imputed to him. It is difficult to imagine this poor, migrant worker, Evans, with his experience, and in his circumstances, telling Mr. Berry, his \\\"boss,\\\" how to drive his truck, especially at a time when judgment and experience in driving a car were crucial. It was too thin a case, with no shadow of evidence, to permit this court to hold that it was error on the part of the district court to submit to the jury whether such a guest, under these circumstances, was guilty of remote contributory negligence.\\nWe are not persuaded, and do not believe that it is the rule in Tennessee that in every negligence case, it is necessary to charge the jury on the possible remote contributory negligence of a plaintiff, especially where the jury finds him guilty of no negligence whatever.\\nIn the instant case, we can find no evidence upon which the district court could have properly based a charge to the jury on remote contributory negligence \\u2014 unless in every negligence case, after absolving the plaintiff of any negligence, it is necessary to instruct the jury that it can mitigate the damages on the ground of remote contributory negligence. It seems to us that there must be something in the case to show such remote contributory negligence before plaintiff's damages can be so mitigated.\\nIn interpreting and passing upon the subject of remote contributory negligence, which is a doctrine peculiar to the law of Tennessee, and which apparently has aspects that have often perplexed the trial courts of that state, as well as leading authorities on the law of torts (see 22 Tennessee Law Review 1030, 1038), we attach importance to the circumstance that the district court, in ruling upon this question, had been an experienced practitioner in the law in that state, and has, for a number of years, been an experienced member of the federal judiciary of Tennessee; and we concur in the view expressed by the district judge that remote contributory negligence was not applicable in this case.\\nIn consideration of the foregoing, the judgment of the district court is affirmed.\"}"

us/284753.json

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+"{\"id\": \"284753\", \"name\": \"FAMILY SMALL LOAN CO. OF RICHMOND, Inc., v. MASON. In re MASON\", \"name_abbreviation\": \"Family Small Loan Co. of Richmond, Inc. v. Mason\", \"decision_date\": \"1933-10-14\", \"docket_number\": \"No. 3524\", \"first_page\": \"207\", \"last_page\": \"207\", \"citations\": \"67 F.2d 207\", \"volume\": \"67\", \"reporter\": \"Federal Reporter 2d Series\", \"court\": \"United States Court of Appeals for the Fourth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T23:25:53.578945+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FAMILY SMALL LOAN CO. OF RICHMOND, Inc., v. MASON. In re MASON.\", \"head_matter\": \"FAMILY SMALL LOAN CO. OF RICHMOND, Inc., v. MASON. In re MASON.\\nNo. 3524.\\nCircuit Court of Appeals, Fourth Circuit.\\nOct. 14, 1933.\\nSimeon M. Atkinson, of Richmond, Va. (Walter M. Evans, Virgil R. Goode, and W. H. Cardwell, all of Richmond, Va., on the brief), for appellant.\\nT. Nelson Parker, of Richmond, Va., for appellee.\\nBefore PARKER, NORTHCOTT, and SOPER, Circuit Judges.\", \"word_count\": \"406\", \"char_count\": \"2280\", \"text\": \"PER CURIAM.\\nThis is an appeal in a bankruptcy case from an order staying proceedings in a state court on a claim alleged to be a dischargeable debt of the bankrupt. While the pleadings in the state court were not made a part of the record, it is admitted by counsel that the action was one for fraud and deceit. The facts were stipulated; and from this stipulation it appears that the bankrupt had obtained $100 from appellant by means of a false statement to the effect that he owed no other debts, whereas in fact he was largely indebted at the time. This constituted the obtaining of money by false pretenses and resulted in the creation of a liability which would not be discharged by bankruptcy. Forsyth v. Vehmeyer, 177 U. S. 177, 182, 20 S. Ct. 623, 44 L. Ed. 723; Friend v. Talcott, 228 U. S. 27, 33 S. Ct. 505, 57 L. Ed. 718. A court of bankruptcy may stay suits against the bankrupt, not involving his property, only where same are founded upon claims from which a discharge would be a release. 11 USCA \\u00a7 29 (a). And a discharge will not release a bankrupt from liabilities for obtaining property by false pretenses or false representations. 11 USCA \\u00a7 35 (second). Since, therefore, it was admitted that the suit in the state court was one to enforce a liability arising out Of the obtaining of money by false pretenses, it was not one in which the court of bankruptcy was authorized to stay proceedings. Interesting questions discussed in the briefs as to whether the bankruptcy court should hear evidence on the nature of the debt where the pleadings in the state court show a debt that is not dischargeable, need not be considered, as here the court considered the evidence presented in the form of a stipulation by counsel; and this evidence, as well as the pleadings in the state court, showed a debt which was not dischargeable. The order of the court below will be reversed.\\nReversed.\"}"

us/3191027.json

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+"{\"id\": \"3191027\", \"name\": \"McQUAY, INC., Plaintiff, v. SAMUEL SCHLOSBERG, INC., Defendant\", \"name_abbreviation\": \"McQuay, Inc. v. Samuel Schlosberg, Inc.\", \"decision_date\": \"1971-01-19\", \"docket_number\": \"No. 4-70 Civ. 327\", \"first_page\": \"902\", \"last_page\": \"908\", \"citations\": \"321 F. Supp. 902\", \"volume\": \"321\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the District of Minnesota\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:16:30.854086+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"McQUAY, INC., Plaintiff, v. SAMUEL SCHLOSBERG, INC., Defendant.\", \"head_matter\": \"McQUAY, INC., Plaintiff, v. SAMUEL SCHLOSBERG, INC., Defendant.\\nNo. 4-70 Civ. 327.\\nUnited States District Court, D. Minnesota, Fourth Division.\\nJan. 19, 1971.\\nDorsey,' Marquart, Windhorst, West & Halladay, by John D. Levine, and Joseph Edward Olson, Minneapolis, Minn., for plaintiff.\\nRobins, Davis & Lyons, by Gary H. Levinson, Minneapolis, Minn., for defendant.\", \"word_count\": \"3422\", \"char_count\": \"21051\", \"text\": \"NEVILLE, District Judge.\\nPlaintiff, a Minnesota based manufacturing corporation, in bringing this diversity action has attempted to effect service of process upon the defendant, a New York corporation, under the Minnesota long-arm statutes, Minn.Stat. \\u00a7 303.13 Subd. 1(3) and 543.19 Subd. 1. Defendant is a heating and air conditioning contractor with its principal and only office and place of business in New York City. It is one of plaintiff's customers. The only connection it has or has had with the State of Minnesota is that it submitted a purchase order to plaintiff to buy some of its Minnesota manufactured air conditioning equipment. Defendant has no office nor agent in Minnesota, has no license to do business in Minnesota and has no telephone, address, agents or representatives in Minnesota. Defendant has never come into Minnesota to solicit any business. Rather in the instance involved in the case at bar as on previous occasions an agent for plaintiff, operating within the State of New York solicited defendant to make a purchase of plaintiff's product or goods. The purchase contract was negotiated and executed in New York. Delivery of the equipment subsequently was made in New York. The purchase price was payable in Minnesota.\\nDefendant claims the equipment sold was defective and that plaintiff has breached its contract and warranties. It has thus refused to pay some $90,000 of the purchase price for the recovery of which this suit is brought. The equipment was used in three different installations, two in the State of New York and one in New Jersey.\\nThe only portion of the contract performable in Minnesota is the payment of the purchase price. Plaintiff does point out, however, that the parties had substantial negotiations prior to commencement of this suit in an effort to adjust their differences and this involved correspondence with and telephone calls to and from plaintiff and its counsel in Minnesota. Further, plaintiff and defendant have had business relationships with each other over a period of many years prior to the present contract in dispute.\\nPlaintiff takes the view that defendant's purchase order engendered substantial activity in Minnesota, caused plaintiff to manufacture equipment costing some $147,865.13 and constituted sufficient activity within, and minimal contracts with, the State of Minnesota to constitute \\\"doing business\\\" in Minnesota within the meaning of Minn.Stat. \\u00a7 303.13 Subd. 1(3) which provides:\\n\\\"(3) If a foreign corporation makes a contract with a resident of Minnesota to be performed in whole or in part by either party in Minnesota, or if such foreign corporation commits a tort in whole or in part in Minnesota against a resident of Minnesota, such acts shall be deemed to be doing business in Minnesota, by the foreign corporation and shall be deemed equivalent to the appointment by the foreign corporation of the secretary of the state of Minnesota and his successors to be its true and lawful attorney upon whom may be served all lawful process in any ac tions or proceedings against the foreign corporation arising from or growing out of such contract or tort. Such process shall be served in duplicate upon the secretary of state . The making of the contract or the committing of the tort shall be deemed to be the agreement of the foreign corporation that any process against it which is so served upon the secretary of state shall be of the same legal force and effect as if served personally within the state of Minnesota.\\\"\\nIt is clear that the contract literally is \\\"to be performed in whole or in part by either party in Minnesota\\\" ; that plaintiff is a resident of Minnesota; that the purchase price was to be paid to plaintiff in Minnesota; and that the goods were to be manufactured in Minnesota. Plaintiff claims the combination of engendering activity within Minnesota by submitting a purchase order, the contract provision for payment of the purchase price in Minnesota, the long-distance contracts with plaintiff and with Minnesota counsel in attempting to adjust the present dispute and the fact of past dealings between the parties over many years, taken together, are sufficient contact with and activities within the State of Minnesota to permit the service of process which it made on the Minnesota Secretary of State under this long-arm statute.\\nAlternatively plaintiff claims the most recently enacted (1969) Minnesota long-arm statute \\u00a7 543.19 Subd. 1 applies. This provision as follows:\\n\\\"As to a cause of action arising from any acts enumerated in this subdivision, a court of this state with jurisdiction of the subject matter may exercise personal jurisdiction over any foreign corporation or any non-resident individual, or his personal representative, in the same manner as if it were a domestic corporation or he were a resident of this state. This section applies if, in person or through an agent, the foreign corporation or non-resident individual;\\n\\n(b) Transacts any business within the state,\\n-x- *\\nSubd. 2. The service of process may be made by personally serving the summons upon the defendant outside of this state with the same effect as though the summons had been personally served within this state.\\\"\\nPlaintiff contends, for all of the reasons above recited, that this statute also permits personal service on defendant outside the state. Accordingly plaintiff effected such personal service on defendant through the United States Marshal in New York.\\nAs to both statutes plaintiff claims after pointing out that read literally by their terms they apply in this case:\\n(1) The courts of the State of Minnesota would uphold service of process in the manner here made and\\n(2) The securing of in personam jurisdiction in this case is consistent with and not violative of federal due process.\\nAny plaintiff, when challenged, has the burden to prove that it has obtained in personam jurisdiction. Williams v. Connolly, 227 F.Supp. 539, 550 (D.Minn.1964). A prima facie showing on a pretrial motion is sufficient however. Kornfuehrer v. Philadelphia Bindery, Inc., 240 F.Supp. 157, 158 (D.Minn. 1965); United Barge Co. v. Logan Charter Service, Inc., 237 F.Supp. 624, 631 (D.Minn.1964). The leading case in the Eighth Circuit is Aftanase v. Economy Baler Co., 343 F.2d 187 (8th Cir. 1965), in which the Court of Appeals analyzed the various Minnesota cases and reiterated the requirements of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), that valid exercise of jurisdiction requires that non-resident defendants have \\\"certain minimum contacts such that the maintenance of the suit does not offend \\\"traditional notions of fair play and substantial justice\\\". Aftanase recognized that more recent federal cases have \\\"greatly relaxed the due process limitations on personal jurisdiction\\\". It was there acknowledged that a state may impose stricter limitations than those proscribed by the bounds of due process and a federal court should observe these further limitations where a diversity case is instituted in a United States District Court or is one removed from a State court.\\nThe Minnesota Supreme Court has indicated that it will assert maximum jurisdiction consistent with the limitations imposed by due process. This court interprets the Minnesota Supreme Court holdings to mean that the outer limits of due process are co-extensive and equate with the limits of permissive service of process on foreign corporations under long arm statutes. In McNeely v. Clayton & Lambert Mfg. Co., 292 F.Supp. 232, 236 (D.Minn. 1968), this court observed that Minnesota will assert maximum jurisdiction permissible, citing a number of Minnesota cases including Dahlberg Co. v. Western Hearing Aid Center Ltd., 259 Minn. 330, 107 N.W.2d 381, cert. denied 366 U.S. 961, 81 S.Ct. 1921, 6 L.Ed.2d 1253 (1961). See the subsequent case of Hunt v. Nevada State Bank, 285 Minn. 77, 172 N.W.2d 292 (1969), cert. denied Burke v. Hunt, 397 U.S. 1010, 90 S.Ct. 1239, 25 L.Ed.2d 423 (1970).\\nSince the reaches of due process are co-extensive with m personam jurisdiction allowed by the Minnesota Supreme Court, in reality it becomes immaterial to determine what action the Minnesota Supreme Court would take in this case since the Minnesota Supreme Court could not exceed limitations of due process and would not be more restrictive. The Minnesota Supreme Court in frequent utterances has however required \\\"at least minimal\\\" contacts with Minnesota. This court doubts whether the Minnesota Supreme Court would sustain jurisdiction in this instance despite certain broad language in the most recent cases of Hunt v. Nevada State Bank, supra, and Wuertz v. Garvey, 287 Minn. 353, 178 N.W.2d 630, 631 (1970), both sustaining jurisdiction under the long-arm statutes. The prior cases of Fourth Northwestern Nat. Bank v. Hilson Industries Inc., 264 Minn. 110, 117 N.W.2d 732 (1962), and Marshall Egg Transport Co. v. Bender-Goodman Co. Inc., 275 Minn. 534, 148 N.W.2d 161 (1967), particularly the former, are persuasive. The Hilson Industries case was a suit to recover on promissory notes which grew out of a transaction whereby a Minnesota manufacturer of automatic ice vending machines sold 50 coolers to a foreign corporation in Ohio. After a dispute and a trip to Ohio by a representative of the Minnesota manufacturer, certain stipulations were then arrived at, including the execution of three promissory notes. The notes were payable in Minnesota and were then subsequently assigned to the Fourth Northwestern National Bank which, after commencing suit thereon, .reassigned the same to the original payee who continued the suit. The court quashed the service of summons and dismissed the action on the basis that application there of Section 303.13 violated the due process provisions of the Fourteenth Amendment. The court held that where the only connection with Minnesota is the fact that the notes are payable here, such is not sufficient jurisdictional conferment. Counsel for plaintiff attempts to draw a distinction between the fact that the suit in Hilson Industries was on the notes rather than on the underlying contract purchase price and that such \\\"led the court to ignore the substantial impact on the commerce of Minnesota which was foreseeable and produced by defendant's consummation of the transaction involving its purchase of 50 large coolers produced by plaintiff in Minnesota.\\\" This is a specious distinction. It seems to this court that the Minnesota Supreme Court would be most apt to follow the rationale of Hilson Industries and hold that long-arm service is ineffective in a case such as at bar where the only connection with Minnesota is the fact that the purchase price is payable here and to decree that such would be in violation of the due process provision of the Fourteenth Amendment. The Marshall Egg Transport case is an a fortiori from Hilson Industries for there certain eggs, the property of an Iowa corporation, were shipped from Iowa to New Jersey and later to New York, never coming into nor being produced in Minnesota. The only connection with Minnesota was that Marshall Egg Transport Co. \\\"brokered\\\" the transaction, conferred with defendant over the long-distance phone and a $3,600 check (payment later stopped) was mailed to Minnesota. The court held that the application of Minn.Stat. \\u00a7 303.13 would violate due process. The purchase order, if any in that ease, generated no manufacturing activity in Minnesota.\\nFundamentally it seems to the court that to permit in personam jurisdiction in this case under either of the Minnesota long-arm statutes is to offend traditional notions of fair play and substantial justice. If plaintiff's position is sound, then it or any other Minnesota manufacturer can sue all of its customers wherever they may be located in the .United States who for good or bad reason have failed to pay their bills or the purchase price of goods. Counsel would argue that the activity generated by virtue of a corporation in a foreign state giving a salesman who is travelling in that foreign state an order which is to be filled in Minnesota is sufficient minimal contacts to give jurisdiction. By the same token, if this were sound, the plaintiff could be sued in any state where it submits a purchase order for raw materials and supplies and the goods are shipped to Minnesota. This concept almost completely obliterates state lines and would lead to the result that anyone who deals with a Minnesota resident in any way or buys a product manufactured by any Minnesota company, can be brought into the Minnesota courts to respond to a suit.\\nThe general philosophy of long-arm statutes is to protect citizens of a state where a nonresident comes into the State directly or indirectly to sell something or solicit sales, or where, even though out of state, a nonresident sells a product which is brought into or comes to rest in the State. The nonresident thus receives the benefit and protection of the state's laws and profits or hopes to from its adventure therein. The nonresident is the aggressor or initiator. It is appropriate that such a nonresident seller should respond to service of process in that state. Quite the contrary, however, where in a case such as at bar the plaintiff is the movant, the aggressor so to speak not in Minnesota but by going to New York, soliciting defendant's business, making a contract in New York, selling the defendant merchandise to be manufactured in Minnesota and delivered in New York and the price to be remitted to plaintiff in Minnesota. If merely because the manufacturing process and payment of the price is to occur in Minnesota such confers jurisdiction in Minnesota, then it's hard to conceive of any case where the long-arm statutes do not apply. The Minnesota Supreme Court itself in the Hilson Industries case supra, drew the distinction between suing a non-resident seller and invoking Minn.Stat. \\u00a7 303.13 against a non-resident buyer.\\nThe court said:\\n\\\"We believe it is significant that the Beck [Beck v. Spindler, 256 Minn. 543, 99 N.W.2d 670]; Adamek [Adamek v. Michigan Door Co., 260 Minn. 54, 108 N.W.2d 607], and Paulos [Paulos v. Best Securities Inc., 260 Minn. 283, 109 N.W.2d 576] cases all resulted in the protection of individuals damaged in one way or another by nonresident defendants who sold their products in this state or whose products found their way here and caused injury to a Minnesota resident. In each instance the nonresident defendant had been the aggressor, so to speak, and had had substantial contact with the forum, invoking its protec tion for the privilege of doing business here. It had subjected itself to the reciprocal obligation of amenability to suit in return for the right to compete for sales in our market places. \\\" 117 N.W.2d at 735\\n-K-\\n\\\" -\\\\ye have, instead, a corporate resident plaintiff who has taken the initiative in response to a nonresident corporation's inquiries. The nonresident corporation enjoys no particular privilege or protection in purchasing products from the resident seller, none akin to the rights exercised by a party seeking to distribute its products within the forum state. It would seem short-sighted indeed to discourage the sale of Minnesota products to nonresidents by subjecting buyers to our jurisdiction where the contacts are so casual.\\\" 117 N.W.2d at 736\\nAgain, on the- question of repeated transactions, the Minnesota Supreme Court stated the following in Marshall Egg Transport, supra:\\n\\\"* \\u2022 [W]here a single transaction would lack the degree of participation necessary to require defendant's submission to the jursidiction of this state, such a deficiency could not be cured merely by repeated similar transactions.\\\" 148 N.W.2d at 164\\nPlaintiff's position is not completely without support. See Simpson Timber Co. v. Great Salt Lake Minerals & Chemicals Corp., 296 F.Supp. 243 (D. Or.1969), which appears under an Oregon long-arm statute to adopt a theory compatible to plaintiff's contention. That court seemed to feel that the \\\"causing of a consequence in the forum state\\\" can satisfy the minimum contacts test of International Shoe Company. See also Southern Machine Company v. Mohasco Industries, Inc., 401 F.2d 374 (6th Cir. 1968); Custom Leasing, Inc. v. Gardner, 307 F.Supp. 161 (N.D.Miss. 1969). On the contrary, the United States Supreme Court in Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), stated:\\n\\\" But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the 'minimal contacts' with that State that are a prerequisite to its exercise of power over him.\\\" 357 U.S. at 251, 78 S.Ct. at 1238..\\nElectro-Craft Corp. v. Maxwell Electronics Corp., 417 F.2d 365 (8th Cir. 1969), is sufficiently distinguishable _ on its facts to be inapposite here.\\nThe latest case in this court, dutifully and responsibly called to this court's attention by plaintiff's counsel himself, is Guardian Packaging Corp. v. Kapak Industries, Inc., 316 F.Supp. 952 (D.Minn. 1970). This was a motion to dismiss by a nonresident purchaser on whom service had been attempted under Minn.Stat. \\u00a7 303.13 Subd. 1(3). The court rather clearly held that in view of the defendant's status as a nonresident purchaser from a Minnesota seller \\\"single act\\\" long-arm service was not a sufficient basis for in personam jurisdiction interpreting the Minnesota cases.\\nIn sum, what plaintiff asks is that this court hold that any purchaser from any Minnesota based corporation where goods have been manufactured in Minnesota may be sued in the Minnesota courts within due process limitations, and thus in diversity actions in this court, irrespective of whether that defendant has any connection with the State of Minnesota other than that the purchase price is payable in Minnesota and that by the submission of its purchase order the nonresident has engendered some activity within the State. It would seem to this court that to do so would violate traditional standards or notions of fair play and substantial justice and would go beyond the parameters permitted by the Fourteenth Amendment due process clause.\\nTraditional notions of fair play contemplate that a defendant has the right to be sued in the jurisdiction and venue of his residence. So within Minnesota itself, if a defendant is sued even in a county other than that in which he resides, he is entitled automatically and without any order of court in the first instance to a change of venue to the county of his residence unless the cause of action arose in the county where sued. Minn.Stat. \\u00a7 542.10. The rationale behind this long time statutory precedent is that a defendant ought to be entitled to defend himself among people and in a community where he resides and is known, his witnesses generally will reside in or near the place of his residence, his counsel will be from his community, the goods he has purchased (if the case is one of this type) likely will be situate in his home community. Such concepts have roots deep in common law traditions. It would seem that this is what the United States Supreme Court meant by \\\"traditional notions of fair play and substantial justice\\\" in International Shoe, supra. The above arguments and reasoning become far more cogent and applicable when one thinks in terms of two states, rather than counties within a state, and particularly where separated by some 1,500 or more miles. These arguments the court recognizes are not applicable under long-arm statutes where a defendant takes the initiative or is the aggressor and goes into another state to transact business or to sell his wares.\\nCertainly in a case such as at bar where the alleged defective equipment costing over $100,000 is in New York and nearby New Jersey, witnesses who have used it and experienced it are there and only the manufacturer is in Minnesota, the court certainly would be faced with a motion for a change of venue. As a practical matter, were the rule not as herein decided, the federal courts would be presented in many if not most cases with motions to transfer under 28 U.S. C. \\u00a7 1404(a) for forum non conveniens and frequently such motions would of necessity have to be granted. This is a relevant consideration. See Guardian Packaging Corp. v. Kapak Industries, Inc., supra at p. 955\\nA separate order quashing service and dismissing the action has been entered.\"}"

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+"{\"id\": \"3251191\", \"name\": \"Yuanliang LIU, Petitioner, v. U.S. DEPARTMENT OF JUSTICE, Attorney General Alberto Gonzales, Respondents\", \"name_abbreviation\": \"Yuanliang Liu v. U.S. Department of Justice\", \"decision_date\": \"2006-07-11\", \"docket_number\": \"Docket No. 05-0031-AG\", \"first_page\": \"106\", \"last_page\": \"118\", \"citations\": \"455 F.3d 106\", \"volume\": \"455\", \"reporter\": \"Federal Reporter 3d Series\", \"court\": \"United States Court of Appeals for the Second Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"Before CALABRESI, WESLEY, and HALL, Circuit Judges.\", \"parties\": \"Yuanliang LIU, Petitioner, v. U.S. DEPARTMENT OF JUSTICE, Attorney General Alberto Gonzales, Respondents.\", \"head_matter\": \"Yuanliang LIU, Petitioner, v. U.S. DEPARTMENT OF JUSTICE, Attorney General Alberto Gonzales, Respondents.\\nDocket No. 05-0031-AG.\\nUnited States Court of Appeals, Second Circuit.\\nSubmitted: Jan. 30, 2006.\\nDecided: July 11, 2006.\\nKhagendra Gharti-Chhetry, Chhetry & Associates P.C., New York, N.Y., for Petitioner.\\nJames S. Carroll III, Assistant United States Attorney, for Anthony J. Jenkins, United States Attorney for the Virgin Islands, St. Thomas, V.I., for Respondents.\\nBefore CALABRESI, WESLEY, and HALL, Circuit Judges.\\nPursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Alberto R. Gonzales is automatically substituted for for mer Attorney General John Ashcroft as the respondent in this case.\", \"word_count\": \"5856\", \"char_count\": \"36789\", \"text\": \"CALABRESI, Circuit Judge.\\nIn August 2002, petitioner Yuanliang Liu (hereinafter \\\"petitioner\\\" or \\\"Liu\\\"), a native and citizen of the People's Republic of China, applied for asylum and withholding of removal under the Immigration and Nationality Act (\\\"INA\\\"), 8 U.S.C. \\u00a7 1158, 1281, and for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (\\\"CAT\\\"), Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. In January 2004, two years after petitioner first came to the United States, an immigration judge (\\\"U\\\") denied Liu's claims on adverse credibility grounds. The IJ also concluded that petitioner's application was frivolous under Section 208(d) of the INA, 8 U.S.C. \\u00a7 1158(d). Both of these determinations were affirmed, without opinion, by the Board of Immigration Appeals (\\\"BIA\\\"). Petitioner subsequently sought our review of the BIA's decision.\\nBefore us, petitioner challenges the IJ's credibility decision and her finding of frivolousness. We conclude that substantial evidence supports the credibility ruling against Liu. We remand the finding of frivolousness, however, to give the BIA an opportunity, in the first instance, to formulate standards for deciding when an asylum seeker's application may be deemed frivolous.\\nBACKGROUND\\nAfter living his entire life in the Fujian province of China, petitioner, then 35-years old, fled his native country for the United States and arrived in Los Angeles in January 2002. He left behind two children \\u2014 a son born in September 1989 and a daughter born in May 1991 \\u2014 and his wife of twelve years. In August of 2002, petitioner submitted an 1-589 application (\\\"original application\\\") in which he explained that he feared persecution because he and his wife were practitioners of Falun Gong. In this original application, Liu asserted that although China's family planning policy made it \\\"stressful\\\" for him and his wife to have a second child after the birth of their son, they managed to do so, and his wife gave birth to their daughter in 1991.\\nNearly a year after petitioner completed his first written application, Liu filed an amended 1-589 application (\\\"amended application\\\"). In it, petitioner claimed that his wife was forced to wear an intrauterine device (\\\"IUD\\\") after the birth of their first child. According to the amended statement, the IUD was \\\"lost automatically\\\" at some point, and, by August 1990, petitioner's wife was pregnant for a second time. Liu reported that his wife's pregnancy was eventually detected by family planning officials who made her abort her pregnancy on April 21, 1991. The revised application also said that, shortly after the coerced abortion, petitioner's older sister discovered an abandoned infant girl, whom Liu and his wife decided to adopt and raise as their own.\\nAt a full merits hearing, petitioner adhered to the narrative he had presented in his amended application rather than the one that he gave in his original application. Thus, Liu testified that his wife was required to implant an IUD once their son was born; after petitioner's wife lost her IUD, became pregnant, and missed several required IUD checkups, she was forced to have an abortion. Liu reiterated that he and his wife had adopted an abandoned baby that his sister had found a few weeks after his wife's abortion. Petitioner also added that family planning officials learned of the unauthorized adoption in December 1996, and, as a result, imposed a 14,000 RMB fine. Liu was able to pay off 5,000 RMB in October 1998, but never settled the remainder of the penalty.\\nIn addition, petitioner recounted that, starting in June 1998, his wife found refuge from the emotional pressures following the forced abortion and the undisclosed adoption by practicing Falun Gong. Once the Chinese government outlawed the practice of Falun Gong in July 1999, however, Liu and his wife were both instructed to attend reeducation courses. Petitioner speculated that he was associated with his wife's activities because members of Falun Gong had practiced at his home. After he and his wife had each failed to attend these mandatory sessions, police officers confiscated books and videotapes relating to Falun Gong from their home (at a time when neither of them were home). Liu testified further that he and his wife separately went into hiding after they learned of these events. Subsequently, while petitioner's wife remained in China (at a different home than the one they shared), Liu crossed into Thailand in August 2001, and paid his way to America.\\nDuring cross-examination, the government asked Liu to address (a) the seemingly significant omissions in his original application, ie., his wife's IUD and coerced abortion, and the purported adoption of their second child, all of which were mentioned for the first time in Liu's amended application and at his asylum hearing; (b) the formal references in his household registration booklet to the daughter he had supposedly adopted without authorization; and (c) the fact that a letter from his wife was not mailed from the town in which she had purportedly relocated.\\nAt the end of the hearing on January 22, 2004, the IJ issued her ruling, denying petitioner's asylum claims on adverse credibility grounds and deeming his application frivolous. On December 10, 2004, the BIA affirmed the IJ's decision without opinion.\\nDISCUSSION\\nOn appeal to us, petitioner disputes both the validity of the credibility ruling against him and the IJ's finding that his asylum application was frivolous. The case therefore presents two separate questions for review: (1) whether substantial evidence supports the IJ's adverse credibility ruling, and (2) whether the IJ correctly decided that petitioner's asylum application was frivolous. The first of these is not uncommon among immigration appeals, and, based on our full review of the record, we find that \\\"the evidence so overwhelmingly supports the IJ's [adverse credibility] finding that, notwithstanding identified errors, there is no realistic possibility of a different result on remand.\\\" Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 395 (2d Cir.2005); see also Xiao Ji Chen v. U.S. Dep't of Justice, 434 F.3d 144, 161-62 (2d Cir.2006). The second question raises issues with which we deal far less frequently and on which the BIA has, thus far, provided no substantial guidance. Under the circumstances, we conclude that it is appropriate to remand the IJ's finding of frivolousness so that the BIA may, in the first instance, develop clear standards for how these determinations should be made and evaluated. We discuss each of these two questions in turn.\\nI. Adverse Credibility\\nIn cases where the BIA summarily affirms an IJ's decision without issuing an opinion, see 8 C.F.R. \\u00a7 1003.1(e)(4), we review the reasoning and decision of the IJ directly, treating it as the final agency determination. See Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006). We owe \\\"particular deference\\\" to an IJ's credibility finding, \\\"mindful that the law must entrust some official with responsibility to hear an applicant's asylum claim, and the IJ has the unique advantage among all officials involved in the process of having heard directly from the applicant.\\\" Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). Hence, our review of an IJ's credibility assessment is an \\\"exceedingly narrow inquiry to ensure that the IJ's conclusions were not reached arbitrarily or capriciously . [and] that credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation or caprice.\\\" Id. at 74 (internal citations and quotation marks omitted).\\nWe may, however, vacate and remand an adverse credibility determination if we find that the IJ has failed to \\\"act fairly in judging credibility and in assessing the sufficiency of the evidence,\\\" Cao He Lin, 428 F.3d at 394, e.g., where the IJ based the credibility ruling \\\"upon speculation or upon an incorrect analysis of the testimony,\\\" id. at 400, or where the IJ unduly relied on inconsistencies that are \\\"relatively minor and isolated and do not concern material facts,\\\" Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000) (citation omitted). Notwithstanding these types of errors, we may still affirm a credibility finding if we can confidently predict that \\\"there is no realistic possibility that, absent the errors, the IJ or BIA would have reached a different conclusion.\\\" Cao He Lin, 428 F.3d at 401.\\nIn the case before us, the IJ presented numerous grounds for her conclusion that petitioner was not credible. A number of these reasons are unavailing, and, as a consequence, do not provide support for the IJ's credibility ruling. For example, the IJ's doubts about two aspects of petitioner's testimony \\u2014 (1) that Liu's wife would not have taken greater precautions to keep her second pregnancy hidden from local authorities, and (2) that the Chinese government would countenance petitioner's failure to pay the full amount of his fine \\u2014 rested on speculation. See Zhou Yun Zhang, 386 F.3d at 74. In addition, with respect to one of the IJ's other concerns (i.e., where Liu's wife stayed while in hiding), the IJ erred in failing \\\"actively [to] appraise the explanations that an applicant, in order to rectify discrepancies in his testimony, gave.\\\" Ming Shi Xue v. BIA, 439 F.3d 111, 123 (2d Cir.2006) (citation omitted). Finally, the putative inconsistency in petitioner's testimony about reeducation classes was not supported by the record, nor did the IJ or the government bring this concern to Liu's attention during the hearing; as a result, petitioner was deprived of an opportunity to clarify this minor (and arguably nonexistent) discrepancy, which was first mentioned by the IJ in her decision. See Ming Shi Xue, 439 F.3d at 114-15; cf. Xian Tuan Ye v. Dep't of Homeland Security, 446 F.3d 289, 295 (2d Cir.2006) (per curiam).\\nThese missteps cannot be easily ignored. The IJ, however, also gave several valid grounds for doubting Liu's credibility, two of which are especially significant. First, the IJ found it \\\"important to note\\\" that Liu's daughter \\u2014 who was purportedly adopted without official authorization after being found abandoned in their village\\u2014 was registered in the household registration booklet and had an official birth certificate. When confronted with this, Liu claimed that the documents, though legitimate, were provided as a favor to petitioner's elder brother. As the IJ explained, Liu's reply, understandably, did not allay the IJ's credibility concerns. On the contrary, petitioner's testimony as to the circumstances surrounding the procurement of his supporting documents served to cast doubt on their authenticity.\\nSecond, the IJ emphasized that Liu's original 1-589 application, submitted with the aid of counsel in August 2002, stated that his wife gave birth to their second child. In his amended application, filed just a year later, petitioner claimed, as he did during his asylum hearing, that family planning officials forced his wife to abort her second pregnancy, and that afterwards he and his wife illegally adopted a child who had been abandoned in their village. When asked about the differences between the earlier and later applications, petitioner answered that he had not mentioned his wife's coerced abortion or the unauthorized adoption of their daughter because he did not realize that China's family planning practices were a potential basis for asylum.\\nThis might explain why petitioner did not emphasize and elaborate on his wife's abortion and their undisclosed adoption. It does not address, however, why petitioner suggested in his original application that his wife gave birth to their second child, rather than simply reporting (without emphasis or elaboration) that they had adopted their daughter in May 1991. The IJ rightly characterized this as the \\\"most glaring discrepancy\\\" in petitioner's case: the IJ's conclusion is supported by substantial evidence; the problem was raised and re-raised by the IJ without satisfactory resolution; and the discrepancy bears directly on the main thrust of petitioner's asylum claims.\\nTogether, these error-free grounds reflect serious and unmistakable differences between the basic premise and facts of petitioner's original asylum application, on the one hand, and the story told in all of Liu's subsequent submissions, ie., his amended application, his household registration, and his live testimony, on the other. The valid reasons on which the IJ relied, which include what the IJ described as the \\\"most glaring discrepancy\\\" in petitioner's case, easily eclipse the errors we earlier identified in the IJ's decision, which, without exception, pertain to more trivial and tangential aspects of petitioner's claims. Accordingly, we conclude, on the basis of those concerns properly found by the IJ for doubting petitioner's credibility, that \\\"notwithstanding admitted errors \\u2014 overwhelming evidence supporting the administrative adjudicator's findings makes it clear that the same decision would have been reached in the absence of the errors.\\\" Cao He Lin, 428 F.3d at 402.\\nII. Frivolous Application\\nHaving concluded that the IJ's credibility ruling was supported by substantial evidence, we turn to the second issue presented on appeal, ie., whether the IJ correctly decided that petitioner's asylum application was frivolous.\\nSection 208(d) of the INA, 8 U.S.C. \\u00a7 1158(d), as amended by the Immigration Reform and Immigrant Responsibility Act of 1996 (\\\"IRIRA\\\"), provides in relevant part:\\n(d) Asylum procedure\\n(4) Notice of privilege of counsel and consequences of frivolous application At the time of filing an application for asylum, the Attorney General shall \\u2014 \\u2022\\n(A) advise the alien of the privilege of being represented by counsel and of the consequences, under paragraph (6), of knowingly filing a frivolous application for asylum .\\n(6) Frivolous applications\\nIf the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice under paragraph (4)(A), the alien shall be permanently ineligible for any benefits under this chapter, effective as of the date of a final determination on such application.\\n8 U.S.C. \\u00a7 1158(d)(4)-(6). Thus, a final decision that an asylum application is frivolous permanently forecloses the petitioner from all benefits under the immigration laws of this country.\\nBecause of the severe consequences of a finding of frivolousness under 8 U.S.C. \\u00a7 1158(d)(6), the corresponding federal regulations prescribe the parameters within which an IJ and the BIA must operate in making these determinations:\\nFor applications filed on or after April 1, 1997, an applicant is subject to the provisions of section 208(d)(6) of the Act only if a final order by an immigration judge or the Board of Immigration Appeals specifically finds that the alien knowingly filed a frivolous asylum appli cation. For purposes of this section, an asylum application is frivolous if any of its material elements is deliberately fabricated. Such finding shall only be made if the immigration judge or the Board is satisfied that the applicant, during the course of the proceedings, has had sufficient opportunity to account for any discrepancies or implausible aspects of the claim....\\n8 C.F.R. \\u00a7 208.20; see Scheerer v. U.S. Att'y Gen., 445 F.3d 1311, 1317 (11th Cir. 2006).\\nThe regulation's text indicates that a finding of frivolousness requires record evidence that an alien has (1) \\\"deliberately fabricated\\\" (2) a \\\"material\\\" element of his asylum application, and (3) has been given a \\\"sufficient opportunity\\\" to address the perceived problems with his claim. But, the BIA has not, to our knowledge, issued any decisions from which reviewing courts can derive guidance as to how to interpret and apply the regulating language.\\nSimilarly, our court has not addressed how we should evaluate frivolousness decisions on appeal. As a result, we have no binding circuit law on, inter alia, who carries the burden of proof, what degree of certainty is required, when an opportunity to be heard will be deemed sufficient, how \\\"deliberate\\\" and \\\"material\\\" a fabrication must be, and what deference the BIA owes to an I J's finding in this context.\\nSeveral other circuits, however, have begun to formulate some law in this area. From their decisions, three principles seem to be emerging. First, the Third and Eleventh Circuits have explicitly held that \\\"an adverse credibility determination alone cannot support a finding of frivolousness.\\\" Scheerer, 445 F.3d at 1317. The Third Circuit's decision in Muhanna v. Gonzales, 399 F.3d 582 (3d Cir.2005), on which the Scheerer court relied, explained:\\n[Ujnder 8 C.F.R. \\u00a7 208.20 a finding of frivolousness does not flow automatically from an adverse credibility determination in any event. Inconsistencies between testimony and an asylum application, while certainly relevant to a credibility determination that may result in the denial of an applicant's asylum claim, do not equate to a frivolousness finding under Section 1158(d)(6), which carries with it much greater consequences.\\nMuhanna, 399 F.3d at 589.\\nSecond, prompted by the requirement in 8 C.F.R. \\u00a7 208.20 that an alien be given a \\\"sufficient opportunity to account for any discrepancies or implausible aspects of the claim,\\\" the Ninth Circuit has concluded that, even where an applicant has received an opportunity to reconcile some of the inconsistencies that concerned an IJ, a finding of frivolousness is not valid unless the alien had a chance to address specifically those concerns on which the frivolousness ruling was based:\\n[Petitioner] had ample opportunities to explain the discrepancies that led to the adverse credibility finding.... To support the finding of frivolousness, however, the IJ relied with particularity on different discrepancies between what [petitioner] said and the extrinsic evidence. [Petitioner] was not given an adequate opportunity to address those additional discrepancies before the ruling on frivolousness was made.... The absence of a proper opportunity for [petitioner] to explain all discrepancies in the record, however, requires us to overturn the conclusion that the application was knowingly frivolous.\\nFarah v. Ashcroft, 348 F.3d 1153, 1158 (9th Cir.2003) (internal quotation marks omit ted).\\nIn all three cases discussed above, Scheerer, Muhanna, and Farah, the IJ's finding of frivolousness was overturned. These, along with Alexandrov v. Gonzales, 442 F.3d 395 (6th Cir.2006), see infra note 4, are the only published federal court decisions that we have found in which a frivolousness ruling has been declared invalid. Similarly rare are published decisions in which a federal court has upheld a finding of frivolousness. Indeed, we have located only four such decisions. From these latter eases, one can arguably discern another guideline. For the circumstances surrounding all four eases of \\\"frivolousness\\\" suggest that concrete and conclusive evidence of fabrication is needed to warrant a ruling that renders an alien permanently ineligible for immigration benefits in the United States.\\nFor example, in Efe v. Ashcroft, 293 F.3d 899 (5th Cir.2002), the Fifth Circuit affirmed an IJ's finding that an applicant had knowingly made false statements. Id. at 908. The basis for the IJ's ruling was the existence of, inter alia, unrefuted den-ta1 records that contradicted the alien's statements about his age at the time he claimed to have entered the United States. See id. at 902 n. 1. Similarly, in Ignatova v. Gonzales, 430 F.3d 1209 (8th Cir.2005), the Eighth Circuit upheld a frivolousness finding where the IJ had concluded that the hospital record introduced by the alien was plainly fraudulent. The IJ had so found on the basis of a letter from the issuing hospital that disavowed the alien's submission: \\\"Ignatova's submission described treatment allegedly given to her by certain doctors and bore stamps and seals, but the record contains a letter from the hospital denying that those doctors were employed there, that the stamps and seals were authentic, or that Ignatova had been treated there.\\\" Id. at 1214.\\nAnd, in Selami v. Gonzales, 423 F.3d 621 (6th Cir.2005), the Sixth Circuit had no trouble affirming a frivolousness decision based on the IJ's finding that the alien had submitted a forged newspaper article. To strengthen his asylum petition, the applicant entered into evidence a March 30, 2001, article purportedly from an Albanian newspaper. Shortly thereafter, the IJ received an authentic copy of that very issue of the same paper from the Library of Congress, which had requested it directly from the National Library of Albania. The applicant's article clearly did not match the true copy. See id. at 624, 626.\\nFinally, in Barreto-Claro v. U.S. Att'y Gen., 275 F.3d 1334 (11th Cir.2001), the asylum seeker filed a second application admitting that he lied in his first application. The Barreto-Claro court emphasized that the applicant did not argue that his fraudulent statements were not material nor knowingly made, but instead sought to explain why he lied, i.e., as the court and BIA described it, \\\" 'why concededly material fabrications were knowingly made.' \\\" Id. at 1339.\\nIn each of these four cases, the frivolousness ruling against the applicant was connected to tangible evidence of fabrication that could not reasonably be disputed, i.e., dental records casting serious doubt on the asylum seeker's alleged age, an official hospital letter denying the authenticity of a document purportedly created by that hospital, an original newspaper that demonstrates beyond peradventure that an alien's proffered article is counterfeit, and a confession to a material fabrication. Looking at both those cases that have affirmed findings of frivolousness and those that have vacated them, it would not be unreasonable to conjecture that federal courts seem to require a heightened evi-dentiary standard in evaluating frivolousness. Without a well-developed body of case law, however, it is premature to say how much beyond the \\\"garden-variety\\\" inconsistencies that are the routine basis of adverse credibility decisions is required to support a finding of frivolousness. We simply have too few data points from which to extrapolate, with any confidence, a uniform federal standard.\\n\\nHow the case before us would fare under these emergent standards is also uncertain. The IJ's conclusion that Liu's application was frivolous was based on (a) the IJ's apparent belief that petitioner's claim was \\\"marred with inconsistencies and implausibilities and [was] suggestive of fraudulent documentation,\\\" and (b) the significant discrepancy between petitioner's original application (in which he claimed that his wife gave birth to their daughter) and his subsequent story that his wife was forced to abort her second pregnancy and that their daughter was actually adopted. Under Scheerer and Muhanna, the first of these reasons, which attempts to parlay an ordinary adverse credibility decision into a finding of frivolousness automatically, would seem to be invalid. The IJ's reliance on credibility concerns is especially doubtful in this case since (a) the IJ's adverse credibility ruling is not free of error, see supra, and (b) the IJ herself indicates that the evidence is only \\\"suggestive\\\" of fraudulent documents.\\nHad the IJ relied exclusively on her general credibility ruling to conclude that Liu's application was frivolous, we might have decided that we could summarily reverse the frivolousness decision ourselves (as has occurred in more than one case in our circuit). But the IJ's second ground is potentially more valid. Petitioner acknowledged that his original 1-589 statement contained incorrect information about the natural birth of the daughter he now maintains was adopted. For the purposes of analyzing the IJ's frivolousness determination, Liu's admission raises a number of difficult questions. Is Liu's concession that his first statement included erroneous information tantamount to a confession that he \\\"deliberately fabricated\\\" either his first (or his second) application? Cfi Bamto-Claro, 275 F.3d at 1337-39. Are we permitted to find that an application is frivolous when we know only that one of two written statements was incorrect, but cannot be certain which one? Even if we accept the IJ's credibility ruling (notwithstanding its errors), could we conclude with sufficient confidence that Liu knowingly invented a story about an adopted daughter? (There is, after all, some chance that Liu simply chose, because he was unaware of the full range of asylum claims he could assert, not to include in his application what he considered to be extraneous information.) Moreover, does a misstatement in a first submission, which did not further the specific asylum claim pressed in a second application, qualify, for the purposes of frivolousness, as a deliberate fabrication of a material element?\\nThese are not easy questions. As a result, we cannot comfortably ascertain the proper outcome in this case in the absence of a set of standards for adjudicating frivolousness appeals. As noted earlier, to date, neither the BIA nor this court have squarely addressed the issue of when and under what circumstances a finding of frivolousness is proper. Hence, were we to generate standards ourselves, we would be forced to start essentially from scratch. Federal courts, of course, do sometimes answer questions of first impression without administrative guidance. But they need not do so in all cases. And, for the reasons we give below, we believe this is an appropriate occasion to vacate and remand the IJ's frivolousness determination to the BIA so that it may, in the first instance, set down clear and explicit standards by which frivolousness decisions may be judged. In doing so, we encourage the BIA to consider not only the relevant statutes and regulations, but also the principles articulated by our sister circuits in the decisions surveyed above.\\n\\nBecause we conclude, as a matter of discretion, that it is prudent and useful for us to remand the issue of frivolousness, we need not address the more complicated question of when remands to the BIA are required by elementary principles of administrative law. Cf. Gonzales v. Thomas, - U.S. -, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006) (per curiam). There are six reasons why this case is, in our view, an especially attractive candidate for remand.\\nInsufficient agency attention \\u2014 Our review of the record suggests that neither the IJ, who made her frivolousness determination in the course of a few short paragraphs, nor the BIA, which summarily affirmed the IJ's decision, considered seriously the difficult issues and questions of first impression that this appeal presents. Under the circumstances, it is clearly desirable to have the BIA clarify this neglected, but important, issue of asylum law.\\nNational uniformity \\u2014 In the frivolousness context, uniformity is not just uniquely possible, but is also of unusual importance. Since none of the circuit courts have, as yet, produced a substantial body of law with respect to frivolousness, there is a real opportunity for the BIA to take the lead in the establishment of uniform national standards for deciding when a finding of frivolousness is appropriate. It is, of course, desirable for all asylum petitions to be handled in a consistent manner by the various circuits. But, the grave consequences of a frivolousness finding amplify the importance of ensuring that an applicant's eligibility for asylum benefits in this country does not depend on the circuit that, by fortune or fate, reviewed the case.\\nStatutory ambiguity \\u2014 There is language in the relevant statute, 8 U.S.C. \\u00a7 1158(d), and in the corresponding regulation, 8 C.F.R. \\u00a7 208.20, that arguably requires interpretation and clarification. Unlike appeals that raise issues that either do not implicate statutory language, or do not involve possibly ambiguous language, here there is every reason for the BIA to have the first opportunity to construe the laws that Congress has charged it to administer. See generally Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).\\nDearth of circuit law \\u2014 Our circuit has literally no case law on this subject. That makes remand a desirable option for at least two reasons. First, we may send the case to the BIA without concern that our decision to do so (a) would countermand the approach taken in binding circuit precedent, or (b) would create needless conflict between circuit holdings and agency law. Cf. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (holding that a court's earlier construction of a statute trumps an agency's more recent construction only if the original interpretation by the federal court was thought to be premised on the unambiguous terms of the statute). Second, we do not even have related case law to which we can turn, or from which we can extract some basic principles to guide us in determining what approach our circuit should take to frivolousness.\\nHigh volume \\u2014 This is not an idiosyncratic case where the dearth of prior law is a natural product of the infrequency with which the issue presents itself. On the contrary, as we are starting to see, virtually every asylum case that contains an adverse credibility ruling has the potential of giving rise to a finding of frivolousness. Given the high volume of cases that may include this issue, and because the BIA, in performing its appellate function, will review these decisions long before they are brought before us, we believe there is great value in having the BIA develop standards as it addresses these cases, which, in turn, will inform how we appraise findings of frivolousness when they reach us in the future.\\nImportance of the issue \\u2014 A finding of frivolousness is a potential \\\"death sentence\\\" for an alien's immigration prospects. See Muhanna, 399 F.3d at 588. But cf. supra note 2. Where so much can be lost \\u2014 and especially in an area of law in which, even in the ordinary case, a lot is at stake, see Ming Shi Xue, 439 F.3d at 114 (\\\"Whether the danger is of religious discrimination, extrajudicial punishment, forced abortion or involuntary sterilization, physical torture or banishment, we must always remember the toll that .is paid if and when we err.\\\") \\u2014 it is imperative that claims be adjudicated in a fair and reasoned way. Standardless and ad hoc deci-sionmaking by federal courts or by individual immigration judges is especially to be avoided with respect to the issue before us today. And the place to start in determining standards is in the agency empowered by Congress to administer the law, the BIA.\\n*\\nFor the foregoing reasons, we DENY the petition for review with respect to the IJ's adverse credibility ruling, we GRANT the petition for review with respect to the finding of frivolousness, and we VACATE that finding and REMAND the case to the BIA for further proceedings consistent with this opinion.\\n. Significant to our decision that remand, with respect to the IJ's adverse credibility determination, is unnecessary in this case is the fact that the ground on which the IJ explicitly placed the greatest weight, i.e., what she described as the \\\"most glaring discrepancy\\\" in petitioner's claim, is entirely free of error.\\nIn this regard, we note our recent decision in Lin Li Hua v. U.S. Dep't of Justice, 453 F.3d 99, 2006 WL 1755289 (2d Cir. June 28, 2006). As in the instant case, Lin Li Hua involved a decision by an IJ who had expressly identified the credibility concern most significant to him, and, there too, the BIA summarily affirmed the IJ's decision. Lin Li Hua, at *9. In Lin Li Hua, however, the credibility concern described by the IJ to be \\\"most critical\\\" was found to be flawed. Under those circumstances, we held that \\\"[t]he more central an errant finding was to the IJ's adverse credibility determination . the less confident we can be that remand would be futile.\\\" Id.\\nThus, in deciding that a remand would not be futile in Lin Li Hua, we stressed that the ground we found to be erroneous was precisely the ground on which the IJ, according to his opinion, had relied most heavily in finding that the applicant was not credible. Conversely, in this case, because the ground on which the IJ (and, by inference, the BIA) relied most substantially is error free, we are able to conclude that \\\"the same decision is inevitable on remand.\\\" Lin Li Hua, at 6.\\n. The alien may still be eligible for withholding of removal or similar temporary protections where a deportation would result in dire persecutions. See 8 C.F.R. \\u00a7 208.20 (\\\"For purposes of this section, a finding that an alien filed a frivolous asylum application shall not preclude the alien from seeking a withholding of removal.\\\"). Thus, our reference to \\\"all benefits under the immigration law of this country\\\" should not be construed to include withholding of removal or other similar temporary protections, or to bar an alien, who is determined to have filed a frivolous application, from seeking any relief that is not otherwise barred by 8 U.S.C. \\u00a7 1158(d)(6) or any other applicable law.\\n. The Farah court's holding also suggests that, when a finding of frivolousness is possible, a petitioner is entitled to an opportunity to address perceived problems in his application that goes beyond the usual opportunity to be heard that an alien is typically accorded during immigration proceedings. Requiring a more comprehensive opportunity to be heard in the' frivolousness context makes sense in light of what is at stake in a frivolousness decision, for both the alien and the government. See In re S-M-J, 21 I. & N. Dec. 722, 727 (BIA 1997) (\\\"[IJmmigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done.\\\"). Giving aliens a meaningful opportunity to address an IJ's concerns is part of guarantying due process, and it is well-settled that the requirements of due process \\\"are flexible and dependent on the circumstances of the particular situation examined.\\\" Augustin v. Sava, 735 F.2d 32, 37 (2d Cir.1984) (citing Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Cl. 864, 74 L.Ed.2d 675 (1983)). Thus, what qualifies as a \\\"sufficient opportunity\\\" for the purposes of satisfying the agency regulations governing frivolousness findings would, we would think, have to be more ample than what suffices in the ordinary course of asylum proceedings. Cf. Ming Shi Xue, 439 F.3d at 114-15 (holding, with respect to standard credibility rulings, that \\\"when an inconsistency is not self-evident, an IJ may not rely on it to support a credibility determination without first bringing the perceived discrepancy to the alien's attention, thereby giving the alien an opportunity to address and perhaps reconcile the seeming inconsistency\\\") (emphasis added). But, these are precisely the questions that we expect the BIA to further explore on remand in expounding standards, in the first instance, for how frivolousness cases should be handled.\\n. See also Alexandrov v. Gonzales, 442 F.3d 395, 407 (6th Cir.2006) (concluding that an immigration court's reliance on hearsay evidence, e.g., State Department reports, to support a finding of frivolousness violated the asylum seeker's due process rights).\\n. At least two findings of frivolousness have been vacated or reversed by panels of this Court through unpublished summary orders in the past few months. See Ji Fang Tian v. Gonzales, 2006 WL 1070915 (2d Cir. April 21, 2006) (reversing frivolousness finding); Min Xin Yang v. BCIS, 2006 WL 1049070 (2d Cir. April 19, 2006) (vacating frivolousness finding).\"}"

us/3290071.json

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+"{\"id\": \"3290071\", \"name\": \"John PARK et al., Plaintiffs, v. HYATT CORPORATION, Defendant\", \"name_abbreviation\": \"Park v. Hyatt Corp.\", \"decision_date\": \"2006-06-30\", \"docket_number\": \"Civil Action No. 06-179 (RWR)\", \"first_page\": \"60\", \"last_page\": \"67\", \"citations\": \"436 F. Supp. 2d 60\", \"volume\": \"436\", \"reporter\": \"Federal Supplement 2d\", \"court\": \"United States Court of Appeals for the District of Columbia\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:55:13.148366+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John PARK et al., Plaintiffs, v. HYATT CORPORATION, Defendant.\", \"head_matter\": \"John PARK et al., Plaintiffs, v. HYATT CORPORATION, Defendant.\\nCivil Action No. 06-179 (RWR).\\nUnited States District Court, District of Columbia.\\nJune 30, 2006.\\nHarold Edmund Brazil, Washington, DC, for Plaintiffs.\\nChristopher E. Hassell, Bonner Kiernan Trebach & Crociata, Washington, DC, for Defendant.\", \"word_count\": \"2833\", \"char_count\": \"18008\", \"text\": \"MEMORANDUM OPINION AND ORDER\\nROBERTS, District Judge.\\nPlaintiffs John Park, Philip Park, and After Six Entertainment, Inc. sued defendant Hyatt Corporation (\\\"Hyatt\\\") asserting contract and tort claims, violations of the D.C. Human Rights Act (\\\"DCHRA\\\") and federal civil rights statutes, and claims of \\\"discrimination\\\" and punitive damages. Hyatt moves to dismiss all but plaintiffs' breach of contract claim, and moves for leave to file counterclaims against plaintiffs. Plaintiffs have alleged sufficient facts to state contract and tort claims and violations of the DCHRA and federal civil rights statutes, and Hyatt's motion to dismiss will be denied with respect to those claims. The \\\"discrimination\\\" claim is du-plicative and will be dismissed, and the punitive damages claim will be treated as part of a prayer for relief and not as a cause of action. Because Hyatt seeks to add counterclaims arising from the same transaction or occurrence and plaintiffs have demonstrated no prejudice to them, Hyatt's motion for leave to file counterclaims will be granted.\\nBACKGROUND\\nPlaintiffs allege that they entered into a signed agreement with the Hyatt Regency Washington on Capitol Hill in December 2004, authorizing plaintiffs to use the Hyatt's facilities for a New Year's Eve party that year in exchange for a fee. (Comply 5.) Plaintiffs state that they planned to charge attendees a fee to attend the party and also charge them for food and alcoholic beverages, and that Hyatt knew of these plans. (Id. \\u00b6 6.) The festivities did not go according to plan. According to plaintiffs, Hyatt intentionally sabotaged plaintiffs' event by failing to provide the size room for the buffet dinner that previously had been represented to plaintiffs, failing to provide a sufficient amount of food for the buffet dinner, failing to place wine on the dinner tables at the buffet dinner, ending the buffet an hour early, locking plaintiffs and party attendees out of their hotel rooms, failing to provide adequate security, and being rude and condescending to plaintiffs. (Id. \\u00b6 10-13, 15, 17.) In addition, plaintiffs contend that Hyatt \\\"unilaterally raised the price of premium drinks at plaintiffs' event but charged less for drinks sold by the Hyatt[,]\\\" creating \\\"an incentive for the attendees at plaintiffs' event to buy drinks from the Hyatt rather tha[n] buy them at plaintiffs' event.\\\" (Id. \\u00b6 8.) Plaintiffs John Park and Philip Park are Korean Americans, and the party was attended overwhelmingly by persons of Asian descent. (See id. \\u00b6 14, 16; Pis. Opp'n to Hyatt's Mot. to Dismiss at 1.)\\nPlaintiffs filed their complaint in D.C. Superior Court in December 2005, alleging breach of contract, tortious interference with contract, negligent infliction of emotional distress, intentional infliction of emotional distress, violations of the DCHRA and federal civil rights statutes, discrimination, and punitive damages. Plaintiffs allege pecuniary loss, loss of reputation, loss of good will, severe emotional distress and other losses. (Compl.1ffl22, 28, 34.) Hyatt answered the complaint without stating any compulsory counterclaims, and removed the case to this court in February 2006. Hyatt now moves to dismiss all but plaintiffs' breach of contract claim and requests leave to file counterclaims. Plaintiffs oppose both motions.\\nDISCUSSION\\n\\\"A Rule 12(b)(6) motion is intended to test the legal sufficiency of the complaint. But the complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Such simplified notice pleading is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues. In light of these liberal pleading requirements, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.\\\" Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C.Cir.2003) (citations and internal quotation marks omitted).\\nIn considering a Rule 12(b)(6) motion, a court must accept all the allegations in a plaintiffs complaint as true and construe them in the light most favorable to the plaintiff. Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1027 (D.C.Cir.1997). \\\"Dismissal under Rule 12(b)(6) is proper when, taking the material allegations of the complaint as admitted, and construing them in plaintiff['s] favor, the court finds that the plaintiff[] ha[s] failed to allege all the material elements of [his] cause of action.\\\" Weyrich v. The New Republic, Inc., 235 F.3d 617, 623 (D.C.Cir.2001) (internal quotation marks and citations omitted) (quoting Taylor v. FDIC, 132 F.3d 753, 761 (D.C.Cir.1997)).\\nI. TORTIOUS INTERFERENCE WITH CONTRACT\\nIn the District of Columbia, in order to state a claim for tortious interference with contract, a plaintiff must allege (1) the existence of a contract between the plaintiff and a third party, (2) knowledge of the contract by the defendant, (3) intentional procurement by the defendant of a breach of contract; and (4) damages resulting from the breach. See Casco Marina Dev., L.L.C. v. D.C. Redevelopment Land Agency, 834 A.2d 77, 83 (D.C.2003); see also Restatement (Second) of Torts \\u00a7 766-66C (1979).\\nPlaintiffs sufficiently, if inartfully, state a claim for tortious interference with contract. Plaintiffs' allegations can be read fairly to assert that a contract existed between plaintiffs and the attendees, whereby attendees paid a fee and agreed to purchase premium drinks in exchange for being able to attend the plaintiffs' New Year's Eve party with various services to be provided by plaintiffs. {See Compl. \\u00b6 6, 24-25.) Plaintiffs also assert knowledge of the contract by Hyatt, intentional procurement of a breach by Hyatt, and damages from the procured breach in the form of lost profits and loss of reputation among other things. {See Compl. \\u00b6 8-9, 24-28.)\\nNonetheless, Hyatt argues that plaintiffs' claim for tortious interference with contract fails to state a claim because it does not allege damages resulting from the breach allegedly induced by Hyatt. Moreover, Hyatt contends that plaintiffs' claim fails because the complaint alleges that Hyatt procured a breach by the plaintiffs and not a third party. In other words, \\\"[plaintiffs appear to allege that they were damaged by their own breach of contract, which was allegedly, procured by the Defendant. This is insufficient to state a claim for tortuous [sic] interference with contract as a matter of law.\\\" (Hyatt's Mem. of P. & A. in Supp. of Mot. to Dismiss (\\\"Hyatt's Mot. to Dismiss\\\") at 3.)\\nHyatt's arguments are unpersuasive. First, plaintiffs do allege lost profits resulting from the attendees' alleged breach of contract in purchasing drinks directly from the hotel and not plaintiffs. Moreover, plaintiffs allege loss of reputation from plaintiffs' own inability to perform on its contract with attendees due to Hyatt's tortious interference. Second, a plaintiff may recover for tortious interference with contract if the defendant forces the plaintiff to breach a contract with a third party. See Restatement (Second) of Torts \\u00a7 766A (1979) (\\\"One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person, by preventing the other from performing the contract or causing his performance to be more expensive or burdensome, is subject to liability to the other for the pecuniary loss resulting to him.\\\"); see also DeKine v. District of Columbia, 422 A.2d 981, 988 (D.C.1980) (recognizing the Restatement (Second) of Torts \\u00a7 766-766C).\\nII. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS\\nTo state a claim for intentional infliction of emotional distress, a plaintiff must allege \\\"(1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff severe emotional distress.\\\" Paul v. Howard Univ., 754 A.2d 297, 307 (D.C.2000) (internal quotation marks omitted). Hyatt argues that \\\"[plaintiffs have failed to allege any extreme or outrageous conduct or sufficiently severe emotional distress.\\\" (Hyatt's Mot. to Dismiss at 5.)\\nHyatt's arguments cannot prevail. Racial discrimination can amount to extreme or outrageous conduct. See Howard Univ. v. Best, 484 A.2d 958, 986 (D.C. 1984) (holding that racial or sexual harassment and other \\\"[a]ctions which violate public policy may constitute outrageous conduct sufficient to state a cause of action for infliction of emotional distress\\\"). However, the D.C. Court of Appeals has explained that Best applied only \\\"to cases in which the plaintiff can show 'a pattern of harassment! ]' \\\" and not to cases where a plaintiff alleges \\\"a few isolated incidents.\\\" Paul, 754 A.2d at 308. Here, plaintiffs allege repeated acts of discrimination and racially motivated sabotage by Hyatt \\u2014 intentionally diminishing plaintiffs' drink sales by undercutting the prices of drinks sold by plaintiffs to their attendees, failing to provide adequate food, cutting short the time of the planned buffet, and locking the plaintiffs and attendees of plaintiffs' party out of their rooms \\u2014 over the entire period the contractual obligations were executed. These alleged acts were neither few nor isolated, and if proven, could amount to extreme and outrageous conduct by Hyatt. In addition, plaintiffs allege that they suffered \\\"severe emotional distress including embarrassment and ridicule.\\\" (ComplA 34.) The burden will be on plaintiffs to prove actual severe emotional distress, but they have pled it sufficiently to survive a motion to dismiss.\\nIII. D.C. HUMAN RIGHTS ACT AND FEDERAL CIVIL RIGHTS STATUTES\\nIt is unlawful to discriminate against individuals on the basis of their race in places of public accommodation. See 42 U.S.C. \\u00a7 2000a (\\\"All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.\\\"); D.C.Code \\u00a7 2-1402.31(a)(l) (making it unlawful to \\\"deny, directly or indirectly, any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodations\\\" on the basis of that person's race or national origin). In addition, federal law declares that \\\"[all] persons . shall have the same right . to make and enforce contracts . and to the full and equal benefit of all laws and proceedings . as is enjoyed by white citizens.\\\" 42 U.S.C. \\u00a7 1981(a). A plaintiff may state a claim under \\u00a7 1981 if the plaintiff can show that (1) he is a member of a protected racial group; (2) the defendant had an intent to discriminate on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated in the statute. See Mitchell v. DCX, Inc., 274 F.Supp.2d 33, 44-45 (D.D.C.2003). Hyatt argues that plaintiffs have failed to state a claim under District of Columbia and federal law because \\\"[p]laintiffs fail to allege that other hotel guests that were not members of a protected class were treated differently\\\" and because \\\"[plaintiffs have no standing to assert a claim for discrimination based upon the violation of the rights of their guests.\\\" (Hyatt's Mot. to Dismiss at 6.)\\nThese arguments are without merit. Hyatt's first argument amounts to a contention that plaintiffs must state a prima facie case of discrimination in their complaint in order to survive a motion to dismiss. However, a plaintiff is not required to plead a prima facie case of discrimination in the complaint, nor specifically to point to similarly situated individuals given preferential treatment in order to survive a motion to dismiss. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C.Cir.2000). Plaintiffs have provided a short and plain statement of their claim, that Hyatt discriminated against plaintiffs in a place of public accommodation and impeded plaintiffs' ability to enforce their contract with Hyatt all because of plaintiffs' race (see Compl. \\u00b6 38-42), giving Hyatt fair notice of the claim and the grounds upon which it rests. That is all that plaintiffs must provide at this stage. See Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Hyatt's second argument fails because it mischaracterizes the allegations in the complaint. Plaintiffs allege that they, along with their guests, were unlawfully denied \\\"equal treatment and enjoyment of [Hyatt's] hotel facilities, including its banquet facilities and hotel rooms.\\\" (CompU 38.)\\nHyatt does not appear to argue that plaintiffs have not stated a claim for which relief can be granted under \\u00a7 1981. In any event, plaintiffs have alleged facts sufficient to survive a motion to dismiss on that claim.\\nIV. CLAIMS FOR DISCRIMINATION AND PUNITIVE DAMAGES\\nPlaintiffs allege additional claims for \\\"discrimination\\\" and punitive damages. (See Compl. \\u00b6 44-50.) Plaintiffs' discrimination claim is duplicative of plaintiffs' claims under the DCHRA and federal civil rights statutes, and will therefore be dismissed. See Johnson v. District of Columbia, Civil Action No. 04-936(RMC), 2005 WL 1903551, at *9 (D.D.C.2005) (dismissing duplicative claim). Though punitive damages are available to plaintiffs if they can show Hyatt's conduct \\\"was accompanied by 'fraud, ill will, recklessness, wantonness, willful disregard of the plaintiff[s'] rights, or other circumstances tending to aggravate the injury!,]'\\\" Dyer v. William S. Bergman & Assocs., Inc., 657 A.2d 1132, 1139 n. 10 (D.C.1995) (quoting Washington Medical Ctr. v. Holle, 573 A.2d 1269, 1284 (D.C.1990)), punitive damages are not an independent cause of action. The claim for punitive damages, then, will be treated instead as part of an ad damnum clause.\\nV. HYATT'S COUNTERCLAIMS\\nFederal Rule of Civil Procedure 13(a) requires that \\\"[a] pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim.\\\" When a pleader fails to set up a counterclaim through \\\"oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment.\\\" Fed.R.Civ.P. 13(f). \\\"[DJelay alone will not generally justify denying a motion to amend a pleading absent a showing of prejudice from the delay.\\\" King v. Cooke, 26 F.3d 720, 723 (7th Cir.1994).\\nHyatt moves for leave to file counterclaims against the plaintiffs for breach of contract and unjust enrichment, alleging that plaintiffs breached their contract with Hyatt by not paying for the full amount of goods and services expended and facilities provided by Hyatt and that plaintiffs were unjustly enriched by their breach. (See Hyatt's Mot. for Leave to File at 9-10.) Plaintiffs oppose the motion, arguing the counterclaims are untimely, prejudicial and filed in bad faith. (Pis.' Opp'n to Hyatt's Mot. for Leave to File at 2-3.)\\nPlaintiffs produce no facts to suggest that Hyatt's motion is filed in bad faith and offer no explanation as to why plaintiffs will be prejudiced by addition of the counterclaims, other than the bare assertion that they will be \\\"placed in the untenable position of prosecuting and defending themselves against this untimely counterclaim.\\\" (Id. at 3.) Notably, Hyatt filed its motion before discovery commenced and only two months after Hyatt removed the case to federal court and answered the complaint. Plaintiffs received ample notice of the counterclaims, and addition of the counterclaims will not unfairly prejudice plaintiffs.\\nCONCLUSION AND ORDER\\nBecause plaintiffs sufficiently allege claims of tortious interference with contract, intentional infliction of emotional distress, violations of the DCHRA and federal civil rights statutes, Hyatt's motion to dismiss with respect to these claims will be denied. Because plaintiffs' claim of \\\"discrimination\\\" is duplicative, Hyatt's motion to dismiss this claim will be granted. Plaintiffs' claim for punitive damages will be treated as part of a prayer for relief and not as an independent cause of action. Because no evidence indicates that Hyatt filed its motion for leave to file counterclaims in bad faith and because it will not unfairly prejudice plaintiffs, Hyatt's motion for leave to file counterclaims will be granted. Accordingly, it is hereby\\nORDERED that Hyatt's motion [3] to dismiss be, and hereby is, GRANTED in part and DENIED in part. It is granted as to plaintiffs' claim of \\\"discrimination,\\\" denied as to plaintiffs' claims of tortious interference with contract, intentional infliction of emotional distress and violations of the DCHRA and federal civil rights statutes, and denied as moot as to plaintiffs' claim of negligent infliction of emotional distress. Plaintiffs' claim for punitive damages shall be treated as part of a prayer for relief and not as a cause of action. It is further\\nORDERED that Hyatt's motion [14] for leave to file counterclaims be, and hereby is, GRANTED.\\n. Hyatt's motion is moot as to plaintiffs' negligent infliction of emotional distress claim since plaintiffs withdrew the claim in their opposition. (See Pis.' Opp'n to Hyatt's Mot. to Dismiss at 5.)\"}"

us/3385119.json

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+"{\"id\": \"3385119\", \"name\": \"J.F. ALLEN COMPANY AND WILEY W. JACKSON COMPANY, A JOINT VENTURE, Plaintiff, v. The UNITED STATES, Defendant\", \"name_abbreviation\": \"J.F. Allen Co. & Wiley W. Jackson Co. v. United States\", \"decision_date\": \"1992-02-19\", \"docket_number\": \"No. 578-87C\", \"first_page\": \"312\", \"last_page\": \"326\", \"citations\": \"25 Cl. Ct. 312\", \"volume\": \"25\", \"reporter\": \"United States Claims Court Reporter\", \"court\": \"United States Court of Claims\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T18:05:58.751974+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J.F. ALLEN COMPANY AND WILEY W. JACKSON COMPANY, A JOINT VENTURE, Plaintiff, v. The UNITED STATES, Defendant.\", \"head_matter\": \"J.F. ALLEN COMPANY AND WILEY W. JACKSON COMPANY, A JOINT VENTURE, Plaintiff, v. The UNITED STATES, Defendant.\\nNo. 578-87C.\\nUnited States Claims Court.\\nFeb. 19, 1992.\\nNicholas A. Pasciullo, Pittsburgh, Pa., attorney of record, for plaintiff.\\nGeorge M. Beasley, III, Commercial Litigation Branch, Civil Div., Dept, of Justice, Washington, D.C., with whom was the Asst. Atty. Gen., and Director David M. Cohen, attorneys of record, for defendant.\", \"word_count\": \"8492\", \"char_count\": \"52988\", \"text\": \"OPINION\\nHORN, Judge.\\nBACKGROUND\\nThe plaintiff, J.F. Allen Company and Wiley W. Jackson Company, a joint venture, filed this action to recover from the United States alleged damages arising out of the joint venture's construction contract with the United States Army Corps of Engineers (Corps). The jurisdiction of this court is uncontested under 28 U.S.C. \\u00a7 1491 (1988), and the Contract Disputes Act of 1978, 41 U.S.C. \\u00a7 609 (1988). The issues described in this Opinion originally were presented to the court on the plaintiff's motion for partial summary judgement on what the parties have denominated the \\\"section-skipping requirement,\\\" the defendants's motion for summary judgement on the whole case (the section-skipping requirement and the damages on the second issue presented, denominated the \\\"low grout take\\\" issue), and the defendant's alternative motion in limine to preclude the plaintiff from using the \\\"total cost\\\" method to calculate damages related to the low grout take issue. The plaintiff claims that the imposition of the section-skipping requirement, which is more fully defined below, constituted a constructive change or breach of contract. The defendant has conceded liability on the low grout take issue, but disputes the damages to which plaintiff might be entitled.\\nThe case arises out of a contract executed between the Corps and the plaintiff for the construction of the Stonewall Jackson Lake Dam, West Fork River, Lewis County, West Virginia. Performance of the contract required the plaintiff to complete foundation drilling and grouting at the dam. The present dispute stems from the drilling and grouting operations performed by the plaintiff's subcontractor, Pennsylvania Drilling Company, Inc. (Penn Drilling).\\nIn its complaint, the plaintiff alleges that: (1) contrary to paragraphs 5.1 and 5.1.2 of Section 20 of the plaintiff's contract with the Corps, authorized representatives of the Corps and the contracting officer issued orders prohibiting simultaneous drilling and grouting in adjacent one-hundred foot sections, which orders constituted a constructive change or, alternatively, a breach of contract, entitling the plaintiff to recover for the increased costs and lost profits associated with this alleged change in the drilling sequence; and (2) because of the low grout take, which occurred in performance of the contract, the plaintiff is entitled to an equitable adjustment, pursuant to the Differing Site Conditions and Variations in Quantity clauses in the contract.\\nAfter the plaintiff's motion for partial summary judgment, the defendant's motion for summary judgment and the defendant's alternative motion in limine had been briefed and argued, the plaintiff filed a motion for enlargement of time to file a motion for summary judgment on the issue of the low grout take. The plaintiff claims that it was prompted to file this motion by the discussion that had ensued at the oral argument. The defendant filed its opposition to plaintiff's motion for enlargement of time to file a motion for summary judgment, arguing that the plaintiff should not be allowed to raise new issues so far along in the proceedings, especially after oral argument had been held and post-argument briefs had been filed by both parties.\\nThe plaintiff, however, was allowed to file a supplemental brief in opposition to defendant's motion for summary judgment, which essentially is a restyled version of the arguments the plaintiff would have made in a motion for summary judgment. In its supplemental brief, the plaintiff claims that as a matter of law, the contracting officer had not correctly computed the amount of damages the plaintiff was entitled to as result of the differing site conditions which resulted in the low grout take.\\nOn November 28, 1989, the defendant filed its response to plaintiff's supplemental brief in which it stated that the plaintiff had \\\"... finally raised a genuine issue of material fact as to whether it may be able to establish allowable costs in addition to those already paid.\\\" The defendant, there fore, requested that its motion for summary judgment on the issue of low grout take be withdrawn, without prejudice. The court, hereby, grants the defendant's request to withdraw its motion for summary judgment on the low grout take/differing site conditions issue. Accordingly, the issues remaining for the court's consideration are those involving the change encountered by the plaintiff in the drilling and grouting sequence (the section-skipping requirement), on which both parties have requested summary judgment, and the defendant's request for a ruling at this time to prohibit the plaintiff from using the total cost method to calculate damages.\\nAfter careful consideration of the briefs filed by the parties, the oral argument held on the cross-motions for summary judgment and the motion in limine, and for the reasons stated below: (1) the plaintiff's motion for partial summary judgement on the section-skipping requirement or alternative breach of contract claim is DENIED; (2) the defendant's motion for summary judgment on the section-skipping requirement is GRANTED; and (3) the defendant's alternative motion in limine is DENIED.\\nFACTS\\nBased on the documentary evidence submitted by the parties, the facts of the case appear to be as follows. The plaintiff, J.F. Allen Company and Wiley W. Jackson Company, a joint venture, entered into a contract (No. DACW59-83-C-0053) with the United States Army Corps of Engineers (Corps) for the construction of the Stonewall Jackson Lake Dam, West Fork River, Lewis County, West Virginia. The contract executed by the parties contains the basic General Provisions found in construction contracts issued by the Corps (May 1983 Edition), e.g., General Provision 3, Changes, General Provision 4, Differing Site Conditions. The contract also contains the June, 1982 edition of the Variations in Estimated Quantities Subdivided Items.\\nA portion of the plaintiff's contract calls for the construction of a grout curtain beneath the dam. The contract specifies that this grout curtain is to be constructed in accordance with Section 20 of the technical provisions of the contract entitled \\\"Foundation Drilling and Grouting and Drainage Holes.\\\" The plaintiff subcontracted with Crown Pressure Grouting Company to perform the drilling and grouting work required by the contract. Subsequently, it appears that the plaintiff entered into a replacement subcontract with Pennsylvania Drilling Company, Inc. (Penn Drilling). The present dispute stems from the drilling and grouting operations performed by Penn Drilling during the construction of the grout curtain.\\nPenn Drilling began drilling and grouting on January 6, 1986, and completed operations on June 4, 1986. The drilling and grouting work performed by Penn Drilling took place in a gallery, or tunnel, inside the dam. Pursuant to paragraph 5.1 of the technical provisions of the contract, drilling and grouting was to be completed \\\"by zones, using the split spacing, stage grouting method as described herein.\\\" Furthermore, the technical provisions specify that the dam gallery was to be divided into sections no longer than one-hundred feet in length. Specifically, paragraph 5.1.2 of Section 20 of the contract specifications provides, \\\"[a] section is a reach along the grout curtain, not more than 100 feet in length.\\\" Paragraph 5.1.2 also states that, \\\"[gjrouting operations will not be permitted in a section at the same time drilling in that section is in progress.\\\"\\nUpon mobilization at the project site, Mr. Jim Adams, Job Superintendent for Penn Drilling, contacted Mr. Warren David Nu-gen, Project Geologist for the contract. In a signed declaration submitted to the court, Mr. Nugen described himself as the project geologist, assigned to the Stonewall Jackson Lake Project Office, responsible for supervising placement of the grout curtain in the foundation of the dam. Furthermore, Mr. Nugen described himself as being responsible for insuring that the grout cutoff was effective and met the design intent of the contract. The parties have stipulated to the fact that Mr. Nu-gen's supervisory duties included directing the drilling and grouting program of the contract. Moreover, although Mr. Nugen directed the sequence of the hole drilling, it was not his job and he did not direct the actual performance of the drilling operation.\\nPrior to the beginning of drilling and grouting operations at the dam, Mr. Nugen developed a drilling and grouting plan to be implemented in order to insure that the grout cutoff was effective and met the design intent of the contract. The parties have stipulated that Mr. Nugen was the Corps' authorized representative, acting within the scope of his authority when he prepared the drilling and grouting plan. The parties have also stipulated that the plan prepared by Mr. Nugen did not have to be authorized or affirmed by anyone else. According to Mr. Nugen, he had no authority to make changes to the contract or order work performed which was outside the scope of the contract. The Corps directed Penn Drilling to perform the drilling and grouting work according to the contract specifications, as implemented by the drilling and grouting plan Mr. Nugen prepared and authorized.\\nThe drilling and grouting plan prepared by Mr. Nugen divided the dam into eight sections as follows:\\n/4-R/ /3-R/ /2-R/ /1-R/ /1-L/ /2-L/ /3-L/ /4-L/\\nUnder the plan, the contractor was required to skip at least one section between drilling and grouting operations, i.e., when the drilling contractor completed first stage holes in section /1-R/, the plan required the contractor to move one-hundred feet away, skipping section /2-R/, to begin first stage holes in section /3-R/. Grouting would then commence in section /1-R/. The plan did not provide for drilling and grouting simultaneously in adjacent sections.\\nEarly during the drilling and grouting operations, the contractor orally notified the Corps Resident Engineer, Mr. William Woodburn, that the set up and moving time involved in the section-skipping requirement of the plan was causing difficulties with the work. The basic equipment for drilling grout holes consists of drills, drill bits, drill steel, tools, water source, and a power supply. Each time Penn Drilling's workers completed a section, the section-skipping requirement imposed by the plan required the workers to disassemble the drill into its three components, and move these components one at a time, as well as tools, boxes of drill steel, and drill bits, across the length of the section adjacent to where they had just completed work, to the next section. The plaintiff alleges that each time Penn Drilling was required to move its equipment a section or more, this move resulted in the loss of a half to one full work shift and interfered significantly with grouting operations. The plaintiff asserts that there would not have been significant down-time had Penn Drilling been permitted to drill the holes sequentially from one end of the dam to another.\\nThe plaintiff asserts that under a \\\"fair and reasonable reading of the specifications,\\\" Penn Drilling should have been allowed to drill each hole in sequence, followed immediately at a distance of one-hundred feet by grouting operations. The section-skipping requirement imposed by Mr. Nugen's drilling and grouting plan made it impossible for Penn Drilling to drill and grout sequentially, as the plaintiff alleges Penn Drilling had planned to do when it submitted its bid. Therefore, because the section-skipping requirement of Mr. Nugen's drilling and grouting plan forced Penn Drilling to jump back and forth between different sections of the dam in order to complete the work, the plaintiff claims that the section-skipping requirement constituted a change in the contract specifications and that the Changes clause of the contract permits both the contractor, the joint venture of J.F. Allen Company and Wiley W. Jackson Company, and its subcontractor, Pennsylvania Drilling Company, Inc., to receive an equitable adjustment for the resulting additional costs.\\nAfter Mr. Nugen instructed Penn Drilling to follow the drilling and grouting plan, no representative of Penn Drilling advised Mr. Nugen that the company intended to take the matter of the drilling and grouting plan to the contracting officer, and Mr. Nugen was not made aware of any complaints by the plaintiff or Penn Drilling with respect to his plan. Furthermore, Col. Robert B. Wilson, the contracting officer at the time of contract performance, stated in his signed declaration:\\nNo individual, representative, or employee of J.F. Allen Company and Wiley N. Jackson Company, a Joint Venture, or from Pennsylvania Drilling Company, Inc., ever questioned me or asked me if it were necessary to follow Warren David Nugen's instructions relative to any drilling and grouting sequence. Further, I received no oral or written complaints from such representatives that Plaintiff or its subcontractor was being required to follow a drilling and grouting sequence not required by the terms of the contract.\\nBy letters dated November 25, 1986, and December 12, 1986, and certifications dated January 19, 1987, and March 19, 1987, the plaintiff submitted a claim on behalf of Penn Drilling in the amount of $469,868.98 to Col. Robert D. Brown III, the contracting officer who replaced Col. Wilson on the Stonewall Jackson project. In the claim submitted to the contracting officer, the plaintiff asserted (1) that the low grout take associated with the performance of the contract entitled the plaintiff and its subcontractor to an equitable adjustment pursuant to the contract's Differing Site Conditions clause and the Variation in Estimated Quantity clause; and (2) that the Corps' refusal to let Penn Drilling drill and grout simultaneously in adjacent one-hundred foot sections was a constructive change and/or breach of contract because Corps' representatives required work conditions contrary to those identified in the contract specifications.\\nOn May 15, 1987, the contracting officer reviewed the plaintiffs' claim and rendered a decision on the merits of the claim. The contracting officer recognized that a partial equitable adjustment pursuant to the Differing Site Conditions Clause was due the plaintiff as a result of the low grout take, which had an underrun of approximately 82 percent. The contracting officer determined that the plaintiff was entitled to an equitable adjustment of $38,450.30. The remaining issues were considered on their merits and denied.\\nIn reviewing the section-skipping portion of the plaintiffs' claim, the contracting officer wrote that, \\\"[w]ith respect to the method of drilling that was followed, it is noted that the drilling and grouting specifications for this contract are for a well-defined stage grouting process.\\\" The contracting officer defined the plaintiff's section-skipping claim as being, \\\"based upon the Corps not permitting you to perform the job using the stop grouting procedure.\\\" Such procedures, the contracting officer wrote, \\\"are not a part of your contract specifications.\\\" According to the contracting officer, the drilling and grouting plan prepared by the Corps allowed the contractor the flexibility to perform the work in a manner that was permissible given the one-hundred foot and twenty-four hour grouting restrictions under paragraph 5.4.2 of Section 20. In denying the claim, the contracting officer wrote that the drilling and grouting plan prepared by the Corps, \\\"cannot be construed as a constructive change.\\\"\\nDISCUSSION\\nRule 56 of the Rules of the United States Claims Court (RUSCC) is patterned on Rule 56 of the Federal Rules of Civil Procedure (Fed.R.Civ.P.) and is similar in language. Both Rules provide that summary judgment \\\"shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\\\" RUSCC 56(c) and Fed.R.Civ.P. 56(c). RUSCC 56(c) provides that in order for a motion for summary judgment to be granted, the moving party bears the burden of showing that there is no genuine issue of material fact and is entitled to judgment as a matter of law. Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1969); Rust Communications Group, Inc. v. United States, 20 Cl.Ct. 392, 394 (1990); Lima Surgical Assoc., Inc. Voluntary Employees' Beneficiary Assn. Plan Trust v. United States, 20 Cl.Ct. 674, 679 (1990), aff'd, 944 F.2d 885 (Fed.Cir.1991).\\nAs stated in Webster University v. United States, 20 Cl.Ct. 429 (1990): Id. at 432 (emphasis deleted). Disputes over facts which are not outcome determinative under the governing law will not preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Summary judgment will not be granted if \\\"the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.\\\" Id.; see also Uniq Computer Corp. v. United States, 20 Cl.Ct. 222, 228-29 (1990).\\nAn issue is genuine only if, on the entirety of the record, a reasonable jury could resolve a factual matter in favor of the non-movant, see, e.g., Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1562 (Fed.Cir.1987), while the materiality of a fact is determined by reference to applicable legal standards. Id., 833 F.2d at 1567.\\nMoreover, the facts presented must be viewed in the light most favorable to the nonmoving party. Adickes v. Kress & Co., 398 U.S. at 147, 90 S.Ct. at 1602. If the moving party has carried its initial burden of showing that there is no genuine issue of material fact, then the nonmoving party bears the burden to present \\\"specific facts showing that there is a genuine issue for trial.\\\" RUSCC 56(f); see also Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510 (citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)); Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Uniq Computer, 20 Cl.Ct. at 228 (stating that the non-movant \\\"must proffer countervailing evidence sufficient to create a genuine issue of material fact\\\"); and Spirit Leveling Contractors v. United States, 19 Cl.Ct. 84, 89 (1989) (stating that the party opposing the motion must \\\"prove by sufficient evidence that a genuine issue of material fact positively remains\\\").\\nWhen making a summary judgment determination, the judge's function is not to weigh the evidence, but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. at 2510; see, e.g., Cloutier v. United States, 19 Cl.Ct. 326, 328 (1990), aff'd, 937 F.2d 622 (Fed.Cir.1991). The judge must determine whether the evidence presents a sufficient disagreement to require submission to fact finding or whether it is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-52, 106 S.Ct. at 2511-12. When the record could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial, and the motion must be granted. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356. If, however, the nonmoving party produces sufficient evidence to raise a question as to the outcome of the case, then the motion for summary judgment should be denied. As indicated above, any doubt over factual issues must be resolved in favor of the party opposing summary judgment, to whom the benefit of all presumptions and inferences runs. Id.; see also Litton Indus. Prods., Inc. v. Solid State Sys. Corp., 755 F.2d 158, 163 (Fed.Cir.1985); and H.F. Allen Orchards v. United States, 749 F.2d 1571, 1574 (Fed.Cir.1984), cert. denied, 474 U.S. 818, 106 S.Ct. 64, 88 L.Ed.2d 52 (1985).\\nIn Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the Supreme Court added an additional provision to the long standing summary judgment guidelines outlined above when it indicated that the initial burden on the party moving for summary judgment to produce evidence showing the absence of a genuine issue of material fact may be discharged, if the moving party can show, alternatively, that there is an absence of evidence to support the nonmoving party's case. Id. at 325, 106 S.Ct. at 2553; see also Lima Surgical Assoc., 20 Cl.Ct. at 679. If the moving party makes this showing, the burden is then on the nonmoving party to present evidence in support of its case and show that a genuine factual dispute exists by making a showing sufficient to establish the existence of an element of its case upon which it bears the burden of proof. Lima Surgical Assoc., 20 Cl.Ct. at 679. The logic behind this addition is simple, if under no scenario can the nonmoving party present the necessary evidence to support its case, then there should be no genuine need for the parties to undertake the time and expense of a trial, and the moving party should prevail without further proceeding. Under Rule 56, the motion for summary judgment may be made by the moving party and succeed, whether or not accompanied by affidavits and other documentary evidence in addition to the pleadings already on file. Generally, however, in order to prevail, the nonmoving party will need to go beyond the pleadings, by use of evidence such as affidavits, depositions, answers to interrogatories and other admissions, in order to show that a genuine issue for trial exists. Celotex v. Catrett, 477 U.S. at 324, 106 S.Ct. at 2553. The type of evidence provided by the party opposing summary judgment need not meet the standards for admissibility at trial. The nonmovant, however, must produce evidence beyond the mere pleadings to survive the summary judgment motion and proceed to trial. Id.\\nAfter careful review of the pleadings, and consideration of the oral arguments presented by both parties, the court finds that the issue of whether the plaintiff is entitled to an equitable adjustment as a result of the implementation of the section-skipping plan implemented by the Corps can be resolved on summary judgment. There exists no dispute as to any of the material facts surrounding the issue. The only dispute left to be settled is a legal one: whether, given the established facts, and under the applicable law, the plaintiff is entitled to an equitable adjustment for costs incurred as a result of implementation of the section-skipping requirement.\\nIn order to recover under the changes clause of a government contract, either for an express or constructive change, the government representative, by actions or deeds, must have required the contractor to perform work which was not a necessary part of the contract. Furthermore, that government representative must have had the requisite authority to make changes to the contract. See Shank-Artukovich v. United States, 13 Cl.Ct. 346, 355 (1987), aff'd, 848 F.2d 1245 (Fed.Cir.1988). A general rule for resolving disagreements between the government and the contractor under the changes clause has been stated as follows:\\nWhere as a result of the Government's misinterpretation of contract provision a contractor is required to perform more or different work, or to higher standards, not called for under its terms, the Contractor is entitled to equitable adjustments pursuant to the Changes Article _\\nJohn Cibinic, Jr. & Ralph C. Nash, Jr., Administration of Government Contracts 325 (2d ed.1986).\\nOn May 15, 1987, the contracting officer issued his decision on the claims at issue. In his decision, the contracting officer carefully analyzed the claims presented by plaintiff and granted certain limited portions of the plaintiff's claim under the low grout take modification, but denied the balance of the plaintiff's claims. The following portions of the contracting officer's well-reasoned decision are relevant to this court's review in the instant case.\\nWith respect to the method of drilling that was followed, it is noted that the drilling and grouting specifications for this contract are for a well-defined stage grouting process. In essence, your claim is based upon the Corps not permitting you to perform the job using stop grouting procedure. Such procedures are not a part of your contract specifications.\\nThe specifications, under paragraph 5, \\\"Definition of Procedures for Drilling and Grouting\\\" defined the manner in which the work was to be performed. The work was to be done by section to full depth of the first zone and then the second zone. Paragraph 5.2.9 indicates that upon completion of the section to the full depth of the second zone, then other sections along the grout curtain were to be grouted in a like manner. Upon completion of drilling and grouting a stage in a section, you were permitted to drill and grout in alternate sections to avoid the 24 hour and 100 foot restrictions imposed by paragraph 5.4.2. Had you requested, at the time of performance of work, permission to drill and grout in the adjacent sections, such permission would have been granted, subject to the 24 hour and 100 foot limitations. These limitations would have added greatly to both your time and cost of performance of the work.\\nYour proposed plan for progressively drilling from point A to point B was not submitted until some five and one-half months after the work was completed. This plan ignored the definition of section as per the specifications and considered the limits of the whole zone as one section. It failed to handle treatment of the overlapping grout curtain beneath Monoliths 9 and 10 and did not address the inefficiencies and down times that would result at various times. Inefficiencies and down time in your plan would arise due to the staging requirement, completion of all primary holes to zone depth prior to beginning secondary holes, completion of all secondary holes to zone depth prior to beginning zone 2, and completion of all primary and second holes to full zone 2 depth prior to beginning tertiary holes. Additionally, exploratory drilling would be delayed until zone 2 was essentially complete. Furthermore, drain hole drilling would not be permitted until the grout curtain was completed which would throw further delays and interruptions into your plan. Based upon this review, it becomes quite apparent that your plan would not have been acceptable.\\nDrilling and grouting in alternate sections has been standard stage grouting procedures on Federal Government Agency Projects in order to eliminate time and distance restrictions so as not to delay the work. With the manner in which the Corps permitted you to perform by sections, you were never without a place to drill. Upon completion of the work on the right side of the Dam, you were permitted to perform exploratory drilling to check the effect of grouting for the grout curtain which thus permitted you to begin drain hole drilling at a much earlier time. This method also permitted an orderly manner of drilling and grouting of the overlapping right and left side grout curtains under Monoliths No. 9 and No. 10.\\nTherefore, with respect to the manner in which the work was performed, the Corps allowed you to do the work in a manner than was permissable, given the 100 foot and 24 hour grouting restrictions under 5.4.2. This cannot be construed as being a constructive change.\\nThe court agrees with the carefully crafted decision issued by the contracting officer in this case. In addition, on its face, paragraph 5.4.2 of Section 20 does not discuss section-skipping between drilling and grouting operations. The twenty-four hour and one-hundred foot limitation described in 5.4.2 concerns time and distance restrictions on drilling from hole to hole and not on drilling and grouting in an entire section. The primary holes are spaced ten feet apart, ten to a section. As long as the contractor drilled at least ten holes away from grouting operations during the twenty-four hour period, it would remain one-hundred feet away from a hole, and satisfy the details of the specifications of paragraph 5.4.2.\\nAnother contract provision which imposes a drilling and grouting spacing requirement is paragraph 5.1.2 of Section 20, which states;\\n5.1.2 A section is a reach along the grout curtain, not more than 100 feet in length. Grouting operations will not be permitted in a section at the same time drilling in that section is in progress. Insofar as practicable, the grout curtain will be subdivided into sections in a manner which will facilitate the Contractor's operations.\\nThis contract provision only requires that drilling and grouting may not be conducted simultaneously within one section. Paragraph 5.1.2 is silent regarding drilling and grouting in adjacent sections.\\nIn both the defendant's brief in support of its motion for summary judgment and in its post argument brief, it cites to several paragraphs in Section 20 of the contract which, the defendant alleges, express the Corps' reservation of control over the drilling and grouting sequence of the contractor. A few of the Section 20 paragraphs relied on by the defendant are set out below:\\n1.2 Program. The amount of drilling and grouting will be determined by the Contracting Officer. The amount of drilling and grouting which actually will be required is unknown, and will be governed by conditions encountered as the work progresses. The Contracting Officer reserves the right to require drilling and grouting operations at any location within the limits of the work area.\\n1.4 Procedures. Grouting mixes, pressures, the pumping rate and the sequence in which the holes are drilled and grouted will be determined in the field and shall be as directed.\\n4.1 General. Holes for grouting or exploration as determined by the Contracting Officer, shall be drilled at the locations, in the direction and to the depths shown on the drawings or as directed by the Contracting Officer. The location of succeeding sets of (tertiary) holes, if necessary as determined by the Contracting Officer, shall be determined by the split spacing method as defined in paragraph 5.1.4. The number of succeeding sets of holes will be increased, progressively, by the split spacing method as deemed necessary by the Contracting Officer until the amount of grout used indicates that the foundation is tight.\\n4.5 Exploratory Nx Hole Drilling. The Contractor, as directed by the Contracting Officer, shall perform such exploratory drilling as may be required to determine the condition of the rock prior to grouting or the effectiveness of the grouting operations after grouting.\\n5.1.1 Zone. A zone is a predetermined partial depth of curtain. The first zone extends 30 feet from a baseline determined by factual foundation excavation and the second zone extends approximately 20 feet downward from the bottom of the first zone. It is anticipated that hole spacing will average 10 feet in the first zone and 10 feet in the second zone. However, these spacings will be varied in accordance with conditions encountered and as directed.\\n5.2.2 The holes thus drilled shall be washed and pressure tested, and then grouted, except that when pressure testing indicates a relatively tight hole, the Contracting Officer may direct that the grouting of that hole be omitted for that stage and the hole be left open for drilling and grouting of the next stage.\\nIn addition paragraphs 5.2.4, 5.2.5, 5.2.7, 5.2.8, 5.2.9, 5.3, 5.4.1, 5.4.2, 5.5, 5.6, 5.6.1, 5.6.2, also cited to by the defendant, clearly address the issue of contractor's reservation of direction during contract performance.\\nIn its post-argument brief, the defendant asserts that when the pertinent provisions of the contract are considered, the essence of Section 20 of the contract is to give the Corps, not the contractor, almost complete control over the drilling and grouting work as it progressed. The court agrees. Moreover, the defendant asserts that these provisions are an example of the Corps' express reservation of the right to require drilling and grouting in any part of the work area and that, therefore, the plaintiff is not entitled to an equitable adjustment.\\nThe court finds that the provisions in Section 20 of the contract, which set out the scope and work procedures for the foundation drilling, grouting and drainage holes, clearly indicate that the Corps re tained an enormous degree of control over the drilling and grouting methods to be used by the contractor. Of particular note is Paragraph 1.2 of Section 20, which states that \\\"[t]he Contracting Officer reserves the right to require drilling and grouting operations at any location within the limits of the work area,\\\" and paragraph 1.4 which states that \\\"[gjrouting mixes, pressures, the pumping rate and the sequence in which the holes are drilled and grouted will be determined in the field and shall be as directed.\\\" In addition, paragraph 4.1 adds that \\\"[h]oles for grouting or exploration as determined by the Contracting Officer, shall be drilled at the locations, in the direction and to the depths shown on the drawings or as directed by the Contracting Officer.\\\" These contract provisions indicate that the plan authorized by Mr. Nugen was well within the confines of the contract, and did not constitute a change to the contract.\\nAlthough in the instant case, the text of the contract cannot be reasonably interpreted to preclude drilling and grouting using the plaintiff's one-hundred foot sequential method, the contract clearly indicates that sequencing shall be determined in the field and performed as directed by the government. The plaintiff's interpretation of the contract, that it should have been permitted to drill and grout without skipping a section, although possibly within the parameters of the contract language, was not given an absolute imprimatur by the contract as the only way to proceed. It is clear to the court that the government did not deviate from the contract and scope of work envisioned in the technical specifications, and that in the instant case the contractor was on notice that the sequence of operations under the contract was to be performed at the discretion of, and under the direction of the government officials. As stated above, the contract makes it clear that under paragraph 1.4 of Section 20 of the contract, decisions regarding the sequence of hole drilling and grouting were to be determined in the field as directed by the government's representatives and, not necessarily, by the contracting officer.\\nFurthermore, there is no evidence that the plaintiff or its subcontractor, Penn Drilling, advanced their current interpretation of the contract, on which they base their claim entitling them to compensation for an express or constructive change, pri- or to the submission of the administrative claim. The plaintiff's failure to properly protest the drilling and grouting plan at the time they were directed to follow it shows acceptance of the direction and presumptive acknowledgment that Mr. Nugen was acting within the scope of his authority, and within the terms of the contract, when he developed and implemented the drilling and grouting plan. Additionally, there is no evidence that Penn Drilling or the plaintiff ever communicated their alleged dissatisfaction with Mr. Nugen's direction on the drilling and grouting specifications to the contracting officer.\\nEven, however, if the court were to determine that Mr. Nugen had issued directions which went beyond the terms of the contract, it is well established in law and in practice that parties entering into contracts with the United States Government understand that only an authorized government representative, and generally only the contracting officer, has the requisite authority to authorize changes to the contract which obligate the government to pay additional money for performance. In such cases the contractor must show that its interpretation of the contract was correct, that there was a constructive change order issued and that the person ordering the alleged change had the authority to act for the contracting officer, or the contractor must show that the orders issued were ratified by a contracting officer. See, John Cibinic, Jr. & Ralph C. Nash, Jr., Administration of Government Contracts 330 (2d ed. 1986). The Claims Court has followed this doctrine closely. In Calfon Constr. Inc. v. United States, 17 Cl.Ct. 171 (1989), the court stated:\\nTo recover under the contract's changes clause on the basis of a constructive change \\u2014 for work beyond that required by the contract, but without a formal change order \\u2014 the contractor must show that the requirements of the contract were enlarged and that the additional work was not volunteered, but was ordered by a government officer having the requisite authority.\\nId. at 177 (citing Len Co. & Assoc. v. United States, 181 Ct.Cl. 29, 38-39, 385 F.2d 438, 443 (1967)). Similarly, the court in IBI Sec. Service, Inc. v. United States, specified that contractors may not recover increased costs unless they result from additional work beyond the minimal standards required by the contract, and that the work was ordered by the words or deeds of contracting officials. 19 Cl.Ct. 106, 111 (1989), aff'd, 918 F.2d 188 (Fed.Cir.1990). Therefore, even if the section-skipping requirement could be read to effectively change the terms of the contract, in order to recover, the plaintiff would still have to show that Mr. Nugen, the government official who ordered the section-skipping requirement had the requisite contracting authority to issue a change to the contract which obligated the government to pay additional money under the contract.\\nIn his declaration, Mr. Nugen specifically states that he did not have authority to make changes to the contract or to order work performed outside the scope of the contract. Mr. Nugen was the Project Geologist at the Stonewall Jackson Lake Dam. In the joint stipulation of uncontroverted facts, the parties agree that Mr. Nugen was responsible \\\"... for the coordination of the drilling and grouting program of the contract\\\" and that he \\\"was authorized to prepare the Drilling and Grouting Plan utilized in Contract DACW59-83-C-0053.\\\" These stipulations indicate only that Mr. Nugen had authority to direct the plan within the confines of the contract at issue. The plaintiff has failed to present any evidence demonstrating Mr. Nugen's authority to order an actual change order to the contract which would obligate the government to pay additional contract costs, nor has the plaintiff offered any evidence to indicate that the contracting officer ratified Mr. Nugen's directions.\\nTherefore, it is clear to the court that the section-skipping requirement appears not to have constituted a change to the terms of the contract. But, even if the plaintiff could successfully urge that such was the case, Mr. Nugen did not possess the requisite authority to order a change to the contract or to obligate the government to pay additional monies. Moreover, the drilling and grouting plan designed by Mr. Nu-gen pursuant to the terms of the contract, and implementation of that plan, does not constitute a breach of the contract as the plaintiff alleges. The court concludes, therefore, that the defendant's motion for summary judgment on the section-skipping claim must be GRANTED.\\nMotion in Limine \\u2014 Total Cost Measure of Damages\\nIn addition to its motion for summary judgment on the section-skipping claim, the defendant has also filed an alternative motion in limine claiming that the plaintiff, as a matter of law, should not be allowed to rely on the \\\"total cost\\\" method of recovery to compute damages.\\nThe total cost method is not favored and will not be used if there is another more reliable method available to establish cost. Wunderlich Contracting Co. v. United States, 173 Ct.Cl. 180, 193, 351 F.2d 956, 965 (1965). The principal objection to this method of calculating an equitable adjustment is that, if used improperly, it can reimburse a contractor for losses not necessarily related to the reason for the adjustment in the first place. Nevertheless, the use of the total cost approach is not prohibited. Boyajian v. United States, 191 Ct. Cl. 233, 423 F.2d 1231 (1970). Certain safeguards have, however, been established by the courts when it is applied. In WRB Corp. v. United States, 183 Ct.Cl. 409, 426 (1968), the Court of Claims laid down the following guidelines for the use of the total cost method:\\nThe acceptability of the method hinges on proof that (1) the nature of the particular losses make it impossible or highly impracticable to determine them with a reasonable degree of accuracy; (2) the plaintiff's bid or estimate was realistic; (3) its actual costs were reasonable; and (4) it was not responsible for the added expenses.\\nThe defendant claims that the plaintiff cannot meet prerequisite (2) of the WRB test, because Penn Drilling's bid was clearly unrealistic. The defendant asserts that Penn Drilling's bid to plaintiff, the joint venture, J.F. Allen Company and Wiley W. Jackson Company, in August, 1985 was unreasonably low in view of the fact that the fair and reasonable cost estimate, which Penn Drilling furnished to the government in June of 1983, was significantly higher than the amount Penn Drilling agreed to accept from the plaintiff in 1985.\\nThe plaintiff, relying on paragraphs 6-8 of the affidavit of Mr. Thomas B. Sturges, President of Penn Drilling, argues that the bid was not unrealistic. The plaintiff contends that the bid cannot be compared with the June, 1983, reasonable cost estimate because the 1983 estimate was submitted for the sole purpose of creating a budget for the contract. Mr. Sturges, in his affidavit, claims that Penn Drilling's normal practice when asked for budget amounts, is to provide high estimates in order to ensure that sufficient money is budgeted for the drilling and grouting program. The defendant, in its reply brief, argues that paragraphs 6-8 of Mr. Sturges' affidavit fail to comply with RUSCC 56(f), since they do not show that Mr. Sturges has personal knowledge of the information included in the affidavit. The defendant contends that paragraphs 6-8 of Mr. Sturges' affidavit are based on \\\"rank hearsay,\\\" namely, on alleged oral statements made to Mr. Sturges by Mr. Jack Woleslagle, the former Vice-President and Estimator for Penn Drilling, who furnished the quotations to the Corps.\\nRUSCC 56(f) provides, in pertinent part, as follows:\\nSupporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.\\nRUSCC 56(f) sets out three tests to determine whether the contents of an affidavit supporting or opposing a motion for summary judgment may be considered by the court. First, the party's affidavit must be made on \\\"personal knowledge.\\\" Affidavits based on reports and the statements of others, without personal knowledge cannot be considered. Second, the statements set forth in the affidavit must be facts that would be admissible in evidence. Conclusory statements, without factual support, are not admissible and do not comply with rules of this court. Third, the affidavit must show affirmatively that the affiant is competent to testify to the matters stated in the affidavit under RUSCC 56(f). MacMurray v. United States, 15 Cl.Ct. 323, 331 (1988) (citations omitted). If an affidavit does not meet all three of the above tests, it has no value to the court when deciding a summary judgement motion. In applying Rule 56(f), however, the court must only disregard the inadmissible portions of the affidavit in ruling on the motion. Id. at 331-32.\\nThe court agrees that certain portions of paragraphs 6-8 of the Sturges' affidavit are inadmissible, for example, the first sentence of paragraph 6, which describes a conversation to which Mr. Sturges was not a party. However, the court finds that the admissible portions of Mr. Sturges' testimony, regarding the general practices of Penn Drilling and their approach to the contract at issue, provide enough evidence to demonstrate a genuine factual dispute concerning whether or not the plaintiff's bid was reasonable. For example, the evidence presented demonstrates a factual dispute to the court concerning the purpose of the numbers used in the plaintiff's 1983 estimate.\\nThe law is clear that an issue cannot be resolved on summary judgment unless there exists no genuine issue of material fact. RUSCC 56(c). The purpose of the 1983 estimate is a dispositive fact in determining whether the plaintiff's 1985 estimate was realistic. Since the plaintiff's 1985 bid must be realistic in order for the plaintiff to use the total cost method for calculating damages, see WRB Corp. v. United States, 183 Ct.Cl. at 426, the factual dispute concerning the purpose of the 1983 estimate is a material one. Therefore, at this stage of the proceedings, although the court remains skeptical that damages awarded to the plaintiff, if any, should be computed utilizing the total cost method for calculating damages, the defendant's alternative motion in limine is premature and is, therefore, DENIED, subject to renewal at a later date.\\nCONCLUSION\\nFor the reasons discussed above: (1) the plaintiff's motion for partial summary judgment on the section-skipping requirement or alternative breach of contract claim is DENIED; (2) the defendant's motion for summary judgment on the section-skipping requirement is GRANTED; and (3) the defendant's alternative motion in limine is DENIED.\\nIT IS SO ORDERED.\\n. A grout curtain is constructed by drilling and grouting a row of holes, spaced ten feet apart, across the length of the dam. The purpose of the grout curtain is to effect a cement barrier by filling in the cracks and voids in the foundation rock so as to make the rock an impervious and continuous barrier against water seepage.\\n. The program contemplated for drilling and grouting is outlined in paragraph 1.2 of Section 20 of the technical provisions of the contract with the minimum quantity of drilling being represented by grout holes on five-foot centers. Paragraph 1.2 also states:\\nThe amount of drilling and grouting will be determined by the Contracting Officer. The amount of drilling and grouting which actually will be required is unknown, and will be governed by conditions encountered as work progresses. The Contracting Officer reserves the right to require drilling and grouting operations at any location within the limits of the work area.\\n. The parties have stipulated that Warren David Nugen was the Project Geologist for contract DACW59-83-C-0053. In the index to the appendix to the defendant's motion for summary judgment and alternative motion in limine, there is a listing for \\\"Position Description of David Nugen.\\\" That document included in the appendix, and referred to in the index as \\\"Position Description of David Nugen,\\\" does not clearly show that it is the position description for Mr. Nugen. Rather, the document included in the appendix is a numbered job description with several lines crossed out and, although barely readable, Mr. Nugen's name hand-written in the upper right hand corner of the page.\\n. The parties have stipulated to the fact that the Corps has traditionally retained detailed control over grouting operations as they are performed. Furthermore, the parties have stipulated that work at the jobsite is generally directed by the contracting officer or his authorized representative.\\n. \\\"R\\\" and \\\"L\\\" are used to show the right and left sides of the dam, as depicted in the \\\"West Fork River, Foundation Treatment Grouting Plan, Elevation and Sections,\\\" included in plaintiffs appendix.\\n. Although the subcontractor, Penn Drilling, submitted a written plan for progressive drilling in adjacent sections, its plan was not submitted to the Corps until the administrative claim was submitted, which was not until after all drilling and grouting work had been completed. Moreover, this plan, the contracting officer wrote, \\\"ignored the definition of section as per the specifications and considered the limits of the whole zone as one section.\\\" Based upon his review of the Penn Drilling plan, the contracting officer felt that its plan \\\"would not have been acceptable.\\\"\\n. The breakdown of the claim presented to the contracting officer is as follows:\\n(1) An amount of $182,452.25 was claimed as a result of the Corps allegedly requiring work conditions contrary to those identified in the specifications, refusing to permit Penn Drilling to drill and grout in a rational sequence, and for extensive delays in the washing out of grout holes. The plaintiff claimed this amount under the Differing Site Conditions clause or under a constructive change theory.\\n(2) An amount of $109,749.00 was claimed for placing cementitious grout under the Differing Site Conditions clause as a result of a grout underrun, which was more than 80 percent below expected levels.\\n(3) An amount of $31,090.50 was claimed for lost profit on the unused bags of cement as a result of the grout underrun. This portion of the claim was calculated under the Variations in Estimated Quantity clause.\\n(4) An amount of $45,000.00 was claimed to cover fees for consultants, in-house expenses and legal fees. These miscellaneous expenses were allegedly incurred in discussion of job activities, coordination of documentation and preparation of the claim.\\n(5) An amount of $101,577.23 was claimed for markup and support by the plaintiff.\\n. Since RUSCC 56(c) is closely patterned upon Fed.R.Civ.P. 56(c), precedent under the Fed. R.Civ.P. is relevant to interpreting RUSCC 56(c). See Imperial Van Lines Int'l, Inc. v. United States, 821 F.2d 634, 637 (Fed.Cir.1987); Lichtfeld-Massaro, Inc. v. United States, 17 Cl.Ct. 67, 70 (1989).\\n. Section 5.4.2 of Section 20 of the Contract provides:\\n5.4.2 Second Stage. After all first stage grouting in any section has been completed, as specified above, the Contractor shall pro ceed, when so directed, with second stage drilling and grouting in accordance with the procedure outlined herein, but in no case shall the deepening of any hole preparatory to grouting be commenced before a minimum period of 24 hours has elapsed since completion of the previous stage of grouting at that hole; nor shall second stage grouting be conducted within a distance of approximately 100 feet of any hole in which a previous stage of grouting has been completed until the grout in such previous stage hole has set for a period of 24 hours. Grouting at subsequent stages shall conform to the same requirements as to minimum time and distance.\\n. The position description included in the appendix to the defendant's motion for summary judgment describes the geologist's duties with respect to drilling and grouting as \\\"supervise placement of grout curtains\\\" and \\\"[djecides drilling pattern.\\\" Moreover, paragraph 1.4 of Section 20 specifically states that, \\\"... the sequence in which the holes are drilled and grouted will be determined in the field and shall be as directed.\\\"\\n. The total cost method computes damages by calculating the difference between actual expenses and bid or estimated costs. See WRB Corp. v. United States, 183 Ct.Cl. 409, 426 (1968).\\n. At oral argument, in responding to the court's observations regarding the defendant's motion in limine, the defendant's counsel described its motion as \\\"a long shot.\\\" The defendant's counsel went on to say:\\nIt may not be established to the Court's satisfaction, that this contractor had made an unreasonably low bid, and is trying to make itself whole here. Whether we can establish it on Summary Judgment, all we can establish is that they did submit a lower bid for the exact same contract, not a bid but an estimate to us, and they are challenged to why that wasn't reliable.\"}"

us/3546055.json

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+"{\"id\": \"3546055\", \"name\": \"Pedro TAMAYO-TAMAYO, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent\", \"name_abbreviation\": \"Tamayo-Tamayo v. Holder\", \"decision_date\": \"2013-02-28\", \"docket_number\": \"No. 08-74005\", \"first_page\": \"795\", \"last_page\": \"798\", \"citations\": \"709 F.3d 795\", \"volume\": \"709\", \"reporter\": \"Federal Reporter 3d Series\", \"court\": \"United States Court of Appeals for the Ninth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T21:12:54.457911+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: JOHN T. NOONAN, SUSAN P. GRABER, and RAYMOND C. FISHER, Circuit Judges.\", \"parties\": \"Pedro TAMAYO-TAMAYO, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.\", \"head_matter\": \"Pedro TAMAYO-TAMAYO, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.\\nNo. 08-74005.\\nUnited States Court of Appeals, Ninth Circuit.\\nArgued and Submitted Jan. 16, 2013.\\nFiled Feb. 28, 2013.\\nBernadette Willeke Connolly and Raul Ray, San Jose, CA, for Petitioner.\\nEdward E. Wiggers, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.\\nBefore: JOHN T. NOONAN, SUSAN P. GRABER, and RAYMOND C. FISHER, Circuit Judges.\", \"word_count\": \"1538\", \"char_count\": \"9709\", \"text\": \"OPINION\\nGRABER, Circuit Judge:\\nPetitioner Pedro Tamayo-Tamayo petitions for review of the government's reinstatement of a prior order of removal, following his illegal reentry into the United States after having been removed. Reviewing de novo, Garcia de Rincon v. Dep't of Homeland Sec., 539 F.3d 1133, 1136 (9th Cir.2008), we reject Petitioner's legal challenges to the reinstatement order. Accordingly, we deny the petition.\\nFACTUAL AND PROCEDURAL HISTORY\\nPetitioner was born in Mexico. He entered the United States in 1973. In 1989, the government ordered Petitioner removed to Mexico and removed him that same day.\\nPetitioner reentered the United States, without permission. For unknown reasons, the government chose to seek a new order of removal instead of reinstating the 1989 order of removal. In 1993, the government again ordered Petitioner removed to Mexico and removed him the next day.\\nPetitioner reentered the United States without legal authorization yet again. According to Petitioner, he entered at a border crossing by presenting his pre-1989 permanent resident card to the border official. The border official allowed Petitioner physically to enter the country.\\nThereafter Petitioner filed an application to replace his permanent resident card. Upon receiving the application, the government realized that Petitioner had no legal authority to be in the country. The government sent Petitioner a letter advising him of an appointment \\u2014 ostensibly to discuss his application. When Petitioner arrived for his appointment, however, the government arrested him. The government presented its notice of intent to reinstate the prior order of removal, an immigration official reinstated the prior order of removal, and Petitioner was removed.\\nPetitioner timely petitions for review.\\nDISCUSSION\\nPetitioner argues that the immigration officer committed legal error in determining (1) that he was subject to a valid prior removal order and (2) that he illegally reentered the United States. Petitioner also argues (3) that the immigration officer violated his due process rights by using a ruse to apprehend him.\\nA. Prior Removal Order\\nThe government reinstated Petitioner's 1989 removal order pursuant to 8 U.S.C. \\u00a7 1231(a)(5):\\nIf the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.\\nThe plain text of the statutory provision was met with respect to the 1989 removal order: The Attorney General found that Petitioner had reentered illegally after having been removed under the 1989 removal order, so that order is reinstated from its original date, and Petitioner shall be removed under that order at any time after reentry. We reject, as unsupported and as contrary to the' statute's text, Petitioner's bald assertion that the 1989 removal order was \\\"superseded\\\" or otherwise invalidated simply because a later removal order exists.\\nB. Illegal Reentry\\n\\\"If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated....\\\" 8 U.S.C. \\u00a7 1231(a)(5) (emphasis added). When Petitioner reentered the country after his 1993 removal, he lacked valid documentation that permitted him to enter. Accordingly, he was inadmissible under 8 U.S.C. \\u00a7 1182(a)(7)(A)(i)(I), as an alien \\\"who is not in possession of a valid unexpired [authorization document],\\\" and his entry was illegal.\\nIt is true that Petitioner's most recent entry was procedurally regular: He presented himself to the border officials, he showed them his (invalid) alien registration card, and they allowed him physically to enter the country. But Petitioner's deceptive behavior at the border did not render his entry legal. Nothing in the statute or elsewhere suggests that Congress intended that the reinstatement provision would not apply to aliens who were able to dupe border officials into thinking that they had authorization to enter, or that Congress otherwise intended to reward fraudulent behavior.\\nOur decision in Hing Sum v. Holder, 602 F.3d 1092 (9th Cir.2010), is not to the contrary. It interpreted a different statutory provision \\u2014 the definition of \\\"admission\\\" under 8 U.S.C. \\u00a7 llOKaX^XA). In that case, the petitioner had entered the United States as a legal permanent resident (\\\"LPR\\\") in 1990. Id. at 1093. In 2001, after he was convicted of a serious crime, the government sought to remove him. Id. at 1093-94. Petitioner wanted to apply for a statutory waiver, but that type of relief was available to non-LPRs only. Id. at 1094. Petitioner cleverly argued that, in 1990, he had obtained his LPR status by fraud and that, accordingly, he was a non-LPR for purposes of applying for the statutory waiver. Id.\\nWe held that resolution of the case hinged on the statute's general definition of \\\"admission\\\" under 8 U.S.C. \\u00a7 1101(a)(13)(A): \\\"the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.\\\" Hing Sum, 602 F.3d at 1095-96. We began our analysis of that term by noting that the word \\\"admission\\\" could mean a procedurally regular admission\\u2014 \\\"an inspection and authorization by an immigration officer\\\" \\u2014 or it could mean a substantively legal admission \\u2014 the entry of those \\\"who were properly admissible as LPRs at the time of entry, and not individuals like Sum who were admissible through appearance alone.\\\" Id. at 1096.\\nWe concluded that, for reasons specific to \\u00a7 1101(a)(13)(A) and to the term \\\"admission,\\\" Congress intended \\\"admission\\\" to mean lawful entry only in the procedural sense. Hing Sum, 602 F.3d at 1097-1101. In particular, the substantive meaning would render part of the statute superfluous and also would lead to absurd results. Id. at 1097. For example, the immigration laws sometimes refer to \\\"admission\\\" and other times to \\\"lawful admission.\\\" Id. at 1099. A procedural definition of \\\"admission\\\" gave effect to those provisions referring to \\\"lawful admissions\\\" \\u2014 admissions that are both procedurally lawful and, because they are specified as \\\"lawful admissions,\\\" substantively lawful. Id. We also found support for our procedural interpretation of \\\"admission\\\" in the \\\"evolution of the statute.\\\" Id. Case law and BIA interpretation in effect at the time that Congress defined the term supported our interpretation. Id. at 1099-1101. Finally, we noted that our decision accorded with decisions by our sister circuits and the BIA. Id. at 1096 & n. 3. In sum, we held that the history and context of that specific statutory provision demonstrated that Congress intended the procedural meaning.\\nUnlike in Hing Sum, nothing suggests that Congress intended the procedural definition to apply to the phrase \\\"reentered the United States illegally\\\" in \\u00a7 1231(a)(5). Interpreting the term in its substantive sense does not lead to superfluous text or absurd results, and nothing in the history of \\u00a7 1231(a)(5) suggests that Congress intended the procedural meaning of illegal reentry.\\nWe hold that Petitioner's substantively illegal reentry met the requirement in \\u00a7 1231(a)(5) that he had \\\"reentered the United States illegally,\\\" notwithstanding the fact that he tricked the border official into allowing him physically to enter.\\nC. Due Process\\nThe government's decision to arrest and remove Petitioner when he showed up for his interview did not prejudice him. Accordingly, we need not, and do not, decide whether there was a due process violation. See Morales-Izquierdo v. Gonzales, 486 F.3d 484, 496 (9th Cir.2007) (en banc) (holding that, to obtain relief, a petitioner must demonstrate a due process violation and prejudice).\\n\\\"To show prejudice, [a petitioner] must present plausible scenarios in which the outcome of the proceedings would have been different if a more elaborate process were provided.\\\" Id. at 495 (internal quotation marks omitted). Here, Petitioner makes no allegation that the outcome of the proceedings would have or could have been different, had he been apprehended through other means. At oral argument, he asserted that he was prejudiced because he did not bring a lawyer with him, which he would have done had he known about the government's intentions. But he has not shown how having a lawyer present could have made any difference to the outcome. As discussed above, issuance of the reinstatement order was proper and, even with skilled legal counsel, no relief was available to Petitioner. Accordingly, Petitioner cannot show prejudice, so his due process claim fails. See id. at 496.\\nPetition DENIED.\\n. For the same reason, the Board of Immigration Appeals' (\\\"BIA\\\") decision in In re Areguillin, 17 I. & N. Dec. 308 (B.I.A.1980), also is not contrary to our decision. In that case, the BIA interpreted the phrase \\\"inspected and admitted,\\\" as used in a now-revoked statutory provision.\"}"

us/3558931.json

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+"{\"id\": \"3558931\", \"name\": \"Sheila M. CRAIG, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee\", \"name_abbreviation\": \"Craig v. Astrue\", \"decision_date\": \"2008-03-11\", \"docket_number\": \"No. 06-55213\", \"first_page\": \"710\", \"last_page\": \"713\", \"citations\": \"269 F. App'x 710\", \"volume\": \"269\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Ninth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T17:27:00.972000+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Sheila M. CRAIG, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, DefendantAppellee.\", \"head_matter\": \"Sheila M. CRAIG, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, DefendantAppellee.\\nNo. 06-55213.\\nUnited States Court of Appeals, Ninth Circuit.\\nSubmitted Nov. 5, 2007 .\\nFiled March 11, 2008.\\nRohlfing Law Firm, Santa Fe Springs, CA, for Plaintiff-Appellant.\\nArmand D. Roth, Esq., SSA \\u2014 Social Security Administration, Office of the Gener al Counsel, San Francisco, CA, for Defendant-Appellee.\\nBefore: FARRIS and PAEZ, Circuit Judges, and BLOCK, District Judge.\\nMichael J. Astrue is substituted for his predecessor, Jo Anne B. Barnhart, as Commissioner of Social Security. See Fed. R.App. P. 43(c)(2).\\nThe panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).\\nThe Honorable Frederic Block, Senior United States District Judge for the Eastern District of New York, sitting by designation.\", \"word_count\": \"1400\", \"char_count\": \"8992\", \"text\": \"MEMORANDUM\\nSheila M. Craig appeals the district court's judgment affirming the Commissioner of Social Security's denial of Craig's application for Supplemental Security Income. \\\"We review the district court[']s decision de novo and therefore must independently determine whether the Commissioner's decision (1) is free of legal error and (2) is supported by substantial evidence.\\\" Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.1996).\\nThe Commissioner's denial was based on the decision of an Administrative Law Judge (\\\"ALJ\\\"), who found that Craig's impairments \\u2014 carpal-tunnel syndrome and back pain \\u2014 were severe, but that they did not prevent her from working as a telemarketer. Craig argues that, in making those findings, the ALJ (1) deprived her of a fair hearing by \\\"foreclosing\\\" her testimony, (2) erroneously concluded that her subjective complaints of pain and the side effects of her medication were \\\"only partially credible,\\\" and (3) erroneously relied on the testimony of a vocational expert that conflicted with the Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles (\\\"SCO\\\"). We agree with the second contention and, consequently, need not address the others. We remand for further proceedings.\\nIn evaluating a claimant's subjective complaints of pain, an ALJ must consider the factors listed in SSR 88-13:\\n1. The nature, location, onset, duration, frequency, radiation, and intensity of any pain;\\n2. Precipitating and aggravating factors (e.g., movement, activity, environmental conditions);\\n3. Type, dosage, effectiveness, and adverse side-effects of any pain medication;\\n4. Treatment, other than medication, for relief of pain;\\n5. Functional restrictions; and\\n6. The claimant's daily activities.\\nSee Smolen, 80 F.3d at 1284. The ALJ may also consider \\\"unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment,\\\" as well as \\\"ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid.\\\" Id. Where, as here, the claimant has produced objective medical evidence of an impairment or impairments that could reasonably be expected to produce some degree of particular symptoms, and there is no evidence of malingering, \\\"the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.\\\" Id. at 1281.\\nThe ALJ assessed Craig's allegations of pain as follows:\\nThe medical record does not support the claimant's assertions that she cannot work because of disabling pain and the side effects of her pain medication. No examining or treating source concluded that the claimant could not work. Indeed, Dr. Altman [a consulting examiner] concluded that the claimant could do work at the medium exertional level. Dr. Papa [a treating chiropractor], moreover, opined that she could not return to her fast food job because she could not lift 50 pounds, but that she could work elsewhere if given vocational rehabilitation.... The claimant notes that she treats herself with heating pads and hand braces.... She asserts that her pain medication makes her too drowsy to work, but this allegation is not mentioned in evidence. Indeed in her pain questionnaire, she stated that her pain medication produced no side effects . She acknowledges that she drives, but she says that she cannot shop and clean her house.... In light of her conflicted statements and the absence of evidence supporting her allegations of disability, I find that the claimant [is] only partially credible.\\nWe conclude that this assessment does not satisfy the Smolen standard.\\nFirst, the ALJ erred in relying on the lack of medical evidence regarding the severity of Craig's pain. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.1998) (\\\"Once the claimant produces medical evidence of an underlying impairment, the Commissioner may not discredit the claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence.\\\").\\nSecond, the opinion evidence cited by the ALJ is not inconsistent with Craig's testimony. Dr. Altman's opinion, which was significantly more optimistic than those of the other physicians who examined Craig, was based on an examination that took place one day after Craig had received a round of palliative epidural injections. Dr. Papa's opinion was explicitly conditioned on Craig's obtaining vocational rehabilitation, which she never received because her claim for worker's compensation was denied. Moreover, elsewhere in her decision, the ALJ rejected Dr. Papa's opinion regarding Craig's ability to sit and stand, in part because chiropractors are not acceptable medical sources under the Commissioner's regulations; the ALJ offered no reason why Papa's opinion was persuasive in one regard, but not the other. Cf., e.g., Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir.2004) (\\\"The ALJ is not entitled to pick and choose from a medical opinion, using only those parts that are favorable to a finding of nondisability.\\\"); Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir.1984) (\\\"[T]he Secretary's attempt to use only the portions [of a report] favorable to her position, while ignoring other parts, is improper.\\\").\\nFinally, we disagree with the ALJ's conclusion that Craig's testimony is internally inconsistent. Although Craig testified that she used heating pads and hand braces, there is no evidence regarding the efficacy of those treatments or whether their use would interfere with Craig's ability to perform work-related tasks. The record further reflects that Craig's driving is limited to a maximum of 30 minutes twice a week for doctor visits, and that Craig must sometimes rely on family members to drive her. Craig's failure to mention side effects on her pain questionnaire is easily explained by the fact that Craig began taking additional medications after completing the questionnaire; the ALJ made no attempt to evaluate the side effects of the new medications.\\nOverall, we find the ALJ's reasons for deeming Craig's testimony \\\"only partially credible\\\" unconvincing. We therefore remand for a reassessment of Craig's credibility; we do not remand solely for a calculation of benefits because the record does not convince us that the ALJ was required to accept Craig's assertion that pain and the side effects of her medication prevented her from doing any work at all. Cf. Smolen, 80 F.3d at 1292 (\\\"In the past, we have credited evidence and remanded for an award of benefits where (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.\\\").\\nBecause the ALJ's faulty assessment of Craig's credibility requires remand, we need not address her remaining arguments. However, we call the Commissioner's attention to our recent observation that SSR 00-4p \\\"explicitly requir[es] that the ALJ determine whether [a vocational] expert's testimony deviates from the Dictionary of Occupational Titles [\\\"DOT\\\"] and whether there is a reasonable explanation for any deviation.\\\" Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir.2007). Further, we trust that, on remand, the ALJ will afford Craig a full and fair opportunity to testify if she chooses to do so.\\nREVERSED and REMANDED.\\nThis disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.\\n. The SCO supplements the DOT and, as such, is subject to the same rules governing use of the DOT. See Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990) (\\\"The Secretary routinely relies on [both the DOT and the SCO] in determining the skill level of a claimant's past work, and in evaluating whether the claimant is able to perform other work in the national economy.'').\"}"

us/3562380.json

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+"{\"id\": \"3562380\", \"name\": \"William G. SCHAFER, Plaintiff, v. UNITED STATES of America, Defendant\", \"name_abbreviation\": \"Schafer v. United States\", \"decision_date\": \"1972-10-16\", \"docket_number\": \"Civ. A. No. W-4706\", \"first_page\": \"677\", \"last_page\": \"682\", \"citations\": \"353 F. Supp. 677\", \"volume\": \"353\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the District of Arkansas\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:47:10.001851+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William G. SCHAFER, Plaintiff, v. UNITED STATES of America, Defendant.\", \"head_matter\": \"William G. SCHAFER, Plaintiff, v. UNITED STATES of America, Defendant.\\nCiv. A. No. W-4706.\\nUnited States District Court, D. Kansas.\\nOct. 16, 1972.\\nThomas A. Wood, Wichita, Kan., for plaintiff.\\nRobert J. Roth, U. S. Atty., Wichita, Kan., James N. Flaherty and Stephen J. Swift, Tax Div., Dept, of Justice, Washington, D. C., for defendant.\", \"word_count\": \"2896\", \"char_count\": \"17524\", \"text\": \"MEMORANDUM OF OPINION\\nFINDINGS OF FACT AND CONCLUSIONS OF LAW\\nWESLEY E. BROWN, Chief Judge.\\nIn this action, Schafer sues to recover a sum of money alleged to have been erroneously assessed and collected by the Government. The parties have stipulated to all facts pertinent to the decision, and the case is now before us for determination on briefs.\\nA brief, but sufficient, summary of that stipulation is as follows:\\nOn February 1, 1958, Schafer filed a petition for bankruptcy in this district. The Government asserted various claims for taxes and interest totalling $48,788.-85. On March 19, 1963, pursuant to the Order confirming the report of the trustee in bankruptcy, the trustee paid to the Government the sum of $48,788.85.\\nOn October 7, 1969, the Government levied upon property belonging to Schafer for sums representing interest on the various claims heretofore described from February 1, 1958 to March 19, 1963. Schafer paid the claims and filed for a refund.\\nThe question before us is whether or not the bankrupt, Schafer, remained personally liable, after having been adjudicated a bankrupt, for interest on tax liability for the period between the date he filed his petition in bankruptcy and the date such tax liability was paid by the trustee.\\nCONCLUSIONS OF LAW\\nThe position of the United States with respect to the issue presented is as follows: that by statute, a discharge in bankruptcy does not release the bankrupt from tax liability; that by statute, interest upon any tax shall be treated as a tax;' and finally, likewise by statute, claims for taxes may be asserted against the taxpayer bankrupt personally after the termination of the bankruptcy proceedings.\\nWith the exception of two cases not cited by Schafer both parties support their respective positions either by relying upon or distinguishing the same cases.\\nSchafer places heavy reliance on In re Vaughan; the United States relies upon Bruning v. United States. In Vaughan, Chief Judge Swinford stated with respect to the Government's reliance on Bruning:\\n\\\"(The Government) contends that Bruning involved the precise issue before this court and that it impliedly overrules Sword Line and National Foundry. I cannot agree. The Referee correctly ruled that the 'attempt to bring this case within the rule of Bruning is misplaced.'\\n\\\"The distinguishing factor is that in Bruning the interest which became a personal debt of the bankrupt was on unpaid tax; but in the instant case, the tax was paid in full. The Supreme Court held 'that post-petition interest on an unpaid tax debt not discharged by \\u00a7 17 remains after bankruptcy.' [376 U.S. at 363, 84 S.Ct. 906.] [Emphasis in district court opinion.] A review of the record on appeal to the Supreme Court makes clear that it is only the interest on tax unpaid by the bankruptcy estate which was in issue.\\\"\\n*\\n\\\" . . . Consequently, Bruning does not control the case at bar. Nor\\ndoes it overrule Sword Line and National Foundry. These two cases are dispositive of the issues before this court.\\\"\\nA completely opposite conclusion was reached by Judge Brewster in Brackeen v. United States. He stated, with respect to the continued vitality of Sword Line and National Foundry in light of Bruning:\\n\\\"Plaintiff insists that those cases were not overruled and are distinguishable from Bruning. Such was the position in two recent district court decisions of In Re Vaughan, D. C.Ky., 292 F.Supp. 731 (1969), and In Re Johnson Electrical Corp., D.C. S.D.N.Y., 312 F.Supp. 840 (1970). Those decisions are heavily relied upon by plaintiff.\\n*\\n\\\"In the Bruning case, the United States was allowed to collect post-petition interest on a portion of a tax debt which had not been paid in the bankruptcy proceedings. It is this factual distinction, of course, upon which plaintiff rests its case. However, basic to the Supreme Court's holding that the interest was collectible was the preliminary determination as to the nature of the post-petition interest. The crucial language was as follows:\\n'In most situations, interest is considered to be the cost of the use of the amounts owing a creditor and an incentive to prompt payment and, thus, an integral part of a continuing debt. Interest on a tax debt would seem to fit that description. Thus, logic and reason seem to indicate that post-petition interest on a tax claim excepted from discharge by \\u00a7 17 of the Act should be recoverable in a later action against the debtor personally, and there is no evidence of any congressional intent to the contrary.\\n-X- *-**\\u2022\\n'Petitioner asserts that the traditional rule which denies post-petition interest as a claim against the bankruptcy estate also applies to discharge the debtor from personal liability for such interest even if the underlaying tax debt is not discharged by \\u00a7 17. We hold that it does not so apply.' 376 U.S. at p. 362, 84 S.Ct. at p. 908.\\n\\\"The Supreme Court thus adopted the government's theory that post-petition interest is an 'integral part of the tax' and, therefore, nondischargeable under Section 17 of the Act. At the same time, it squelched any further attempts to use the Saper rule as an argument for dischargeability of the interest. Bruning thereby effectively undermined the decisions both of Sword Line and of National Foundry. Furthermore, the Court had granted certiorari not only because of the potentially recurring nature of the problem but also because of an 'apparent conflict between circuits', specifically citing Mighell. While Bruning involved interest on an unpaid tax debt, Mighell involved interest on a paid tax debt. If plaintiff's argument were correct that Bruning is distinguishable on that basis, there would have been no conflict. Obviously, by affirming the Ninth Circuit's decision in Bruning in favor of the government, [317 F.2d 229 (1963)] the Supreme Court disapproved Mighell. [CA 10]\\n\\\"As to the two recent district court opinions relied upon by plaintiff, this Court can find no logical reason why either court distinguished Bruning solely upon the ground that it involved interest on an unpaid tax. The decisions in both cases actually rest upon considerations of fairness to the taxpayer. Unfortunately, as pointed out in Bruning, Section 17, 'is not a compassionate section for debtors. Rather, it demonstrates congressional judgment that certain problems \\u2014 e.g., those of financing government \\u2014 override the value of giving the debtor a wholly fresh start. Congress clearly intended that personal liability for unpaid tax debts survive bankruptcy. The general humanitarian purpose of the Bankruptcy Act provides no reason to believe the Congress had a different intention with regard to the personal liability for the interest on such debts.' 376 U. S. at p. 361, 84 S.Ct. at p. 908.\\\"\\nIn Brackeen, Judge Brewster noted that one of the cases relied upon heavily by the plaintiff therein, In re Johnson Electrical Corporation was on appeal to the Second Circuit. The appellate opinion of Johnson Electric, written by Judge Friendly, reverses the district court, and contains the following pertinent language:\\n\\\"The only basis suggested for disregarding Bruning is that here the entire tax, apparently including pre-petition interest, was paid as a result of the Chapter XI proceeding, whereas in Bruning only a partial payment had been made. In re Vaughan, 292 F.Supp. 731 (E.D.Ky.1968), also sought to diminish the effect of Bruning in this manner, pointing out that scrutiny of the record in that case revealed that a dispute over post-petition interest on the part of the tax claim that was paid in the bankruptcy proceeding had been settled and the appeal involved (and thus determined) only the question of the bankrupt's liability for\\npost-petition interest on the tax that had been left unpaid. Contra Hugh H. Eby Co. v. United States, 319 F.Supp. 942, 943-944 (E.D.Pa.1970). This distinction is not sufficiently substantial to warrant a different result. Either the filing of the petition stops the running of interest on federal tax claims against a bankrupt or it does not. In holding the latter, Bruning made clear that the reasons generally causing disallowance of claims for such interest against the bankrupt estate, to wit, 'the avoidance of unfairness as between competing creditors and the avoidance of administrative inconvenience.' 376 U.S. at 362, 84 S.Ct. at 909, were inapplicable when a non-dischargeable federal tax claim was asserted against the bankrupt himself. Nicholas v. United States, 384 U.S. 678, 86 S.Ct. 1674, 16 L.Ed.2d 853 (1966), relied on by the district court, dealt with the quite different question of allowance of post-petition interest against the bankrupt estate. Far from indirectly undercutting Bruning, the Court was at pains to point out, 384 U.S. at 682 n.9, 86 S.Ct. at 1678-1679 that '[i]t is clear that the interest-bearing quality of the debt is suspended, rather than extinguished, by the filing of a petition in bankruptcy' and that in some circumstances, citing Bruning, 'the accrual of interest may continue during the period of bankruptcy administration.' To be sure, it can be argued that it is unfair to charge a bankrupt with interest during a period when his funds are in custodia legis. But often, perhaps even usually, the money is being used by the debtor in possession or the trustee for a useful business purpose and there is thus no real hardship in the bankrupt's having to pay interest on a claim not subject to discharge. In any event the words of 26 U.S.C. \\u00a7 6873(a) and \\u00a7 17 of the Bankruptcy Act are too strict to leave room for judicial loosening in the service of a policy that at best is doubtful.\\\"\\nIt is likewise noteworthy that the district court case of Eby Company v. United States (Footnote 5, supra) mentioned by Judge Friendly as contra to In re Vaughan, has been affirmed very recently by the Third Circuit. Judge Adams, writing for that Court, stated:\\n\\\"The Eby Company urges that the district court erred in applying Bruning because that ease is factually distinguishable in two regards: (1) that the taxes were paid in full here whereas they were not so - paid in Bruning, and (2) that the Supreme Court in Bruning considered the liability for all post-petition interest whereas here only liability for post-petition, pre-confirmation interest is at issue. However, in Bruning, the Supreme Court held that all post-petition interest, including interest accrued during the pendency of the bankruptcy proceeding, could be collected by the Government from after-acquired assets of the debtor. A fortiori, post-petition, pre-confirmation interest is also collectible. The Supreme Court also held that merely because the Government filed a proof of claim in bankruptcy, and received some payment out of the debtor's bankrupt estate, it was not thereby barred from collecting post-petition interest. That the underlying taxes were later paid in full here does not affect the fact that appellant had the use of the Government's money during the pendency of the reorganization proceeding, and that since the underlying debt is not discharged by operation of Section 17 of the Bankruptcy Act, 11 U.S.C. \\u00a7 35 (1964), neither is the interest which accrues by reason of the use of such money during the pendency of the proceedings. See 376 U.S. at 360, 84 S.Ct. 906, 11 L.Ed.2d 772. Corporation, which thought it assumed fixed and known obligations' when it purchased the debtor's assets as part of the arrangement plan. However, in Bruning, the Supreme Court stated that regardless of the purpose of the Act, Section 17 indicated a 'congressional judgment that certain problems \\u2014e.g., those of financing government \\u2014override the value of giving the debtor a fresh start,' 376 U.S. at 361, 84 S.Ct. at 908. (footnote omitted).\\\"\\nAppellant argues, however, that the purpose of the Bankruptcy Act is to allow the debtor a fresh start in life, and that to 'permit the Government to collect amounts over and above those prescribed by the court is an undue and unfair burden on [the successor]\\nIt is apparent, in our opinion, that In re Vaughan now stands alone with respect to its interpretation of the Supreme Court's decision in Bruning v. United States. Schafer, the plaintiff, urges us to follow the Vaughan Court and find that Bruning must be confined to its particular factual setting, and that by using the words \\\"unpaid tax\\\", the Supreme Court in Bruning was, by implication, saying that interest on a \\\"paid tax\\\" does not remain a personal liability of the otherwise discharged bankrupt-debtor. We_dis^r^_with-*this analysis.\\nThe limits of the Bruning decision were discussed by the Supreme Court in Nicholas v. United States, wherein the Court said:\\n\\\"It is a well-settled principle of American bankruptcy law that in cases of ordinary bankruptcy, the accumulation of interest on claims against a bankrupt estate is suspended as of the date the petition is filed. Sexton v. Dreyfus, 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244. That rule, grounded in historical considerations of equity and administrative convenience, was specifieally made applicable to the accumulation of interest on claims for taxes by the decision of this Court in New York v. Saper, 336 U.S. 328, 69 S.Ct. 544, 93 L.Ed. 710.\\nBruning, we conclude, holds that post-petition interest on an unpaid tax debt is not discharged by Section 17 and remains a personal liability of the debt- or after bankruptcy.\\nOne matter remains for discussion. Schafer contends that the Tenth Circuit case of United States v. Mighell, was not expressly disapproved by Bruning and that the factually-limited holding of Bruning requires us to follow Mighell. While it is true that the Supreme Court did not in specific words \\\"expressly disapprove\\\" Mighell it is clear that it decided Bruning to resolve an \\\"apparent conflict between circuits\\\" [Bruning, CA 9, and Mighell, CA 10] and that the Ninth Circuit's view of the question of personal liability for post-petition interest was affirmed. Whether or not such an action constitutes \\\"express disapproval\\\" seems to us a question of legal semantics, the resolution of which is not necessary to the decision in this case. Suffice it to say that if Mighell could have controlled this case at the time of its writing, Bruning now controls, and we are bound to follow it.\\nIn summary, we find that under the facts of this case, interest on the taxes owed by Schafer continued to accrue after the filing of his petition in bankruptcy; that by statute, such interest became a tax; that payment in full of the tax liability (less interest) by the trustee at the time of discharge did not release Schafer from personal liability in an action for recovery of the interest. Accordingly,\\nIt is ordered that the United States' motion for Summary Judgment be granted and that Schafer's motion for Summary Judgment be Denied.\\n. 11 U.S.C. \\u00a7 35(a). The 1966 Amendment of 11 U.S.C. \\u00a7 35(a)(1) [P.L. 89-496] which made dischargeable in bankruptcy debts for taxes which became due and owing more than three years preceding bankruptcy has been held not to apply to cases, such as the instant case, wherein the bankruptcy discharge preceded the effective date of the amendment, United States v. Winters, 424 F.2d 113 (CA 5, 1970). The court also found that the 1966 amendment was effective only in proceedings before bankruptcy courts. No contrary position is taken by Schafer, and the 1966 Amendment's effect is not an issue in this case.\\n. 26 U.S.O. \\u00a7 6601(f) (1).\\n. 26 U.S.C. \\u00a7 6873(a).\\n. United States v. Winters, supra, [Note 1] and Poly Industries v. Mozley, 362 F.2d 453 (CA 9, 1966), cert. den. 385 U.S. 958, 87 S.Ct. 393, 17 L.Ed.2d 304.\\n. Brackeen v. United States, 330 F.Supp. 68 (N.D.Texas, 1971).\\nBruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964).\\nEby Co. v. United States, 456 F.2d 923 (CA 3, 1972), aff'g 319 F.Supp. 942 (E.D.Pa., 1970).\\nJohnson Electrical Corp. v. United States, 442 F.2d 281 (CA 2, 1971), rev'g 312 F.Supp. 840 (S.D.N.Y., 1969). National Foundry Co. of N. Y. v. Director, Internal Revenue, 229 F.2d 149 (CA 2, 1956).\\nNew York v. Saper, 336 U.S. 328, 69 S.Ct. 544, 93 L.Ed. 710 (1949).\\nNicholas v. United States, 384 U.S. 678, 86 S.Ct. 1674, 16 L.Ed.2d 853 (1966).\\nPoly Industries, Inc. v. Mozley, 362 F.2d 453 (CA 9, 1966), cert. den. 385 U.S. 958, 87 S.Ct. 393, 17 L.Ed.2d 304.\\nSword Line v. Industrial Commissioner of N.Y., 212 F.2d 865 (CA 2, 1954), cert. den., 348 U.S. 830, 75 S.Ct. 53, 99 L.Ed. 654 (1954).\\nUnited States v. Mighell, 273 F.2d 682 (CA 10, 1959).\\nUnited States v. Winters, 424 F.2d 113 (CA 5, 1970).\\nVaughan, In re, 292 F.Supp. 731 (E.D. Ky., 1968).\\n. Of. Thomas v. Western Car Co., 149 U.S. 95, 13 S.Ct. 824, 37 L.Ed. 663. It is clear that the interest-bearing quality of the debt is suspended, rather than extinguished, by the filing of a petition in bankruptcy. In certain circumstances not here relevant, the accrual of interest may continue during the period of bankruptcy administration. Cf. Bruning v. United States (citation omitted). 3 Collier on Bankruptcy 1858 et seq. (14th Ed., 1964).\\\" [Emphasis ours.]\\n. Nicholas, Ibid.\\n. United States v. Mighell, Ihid.\"}"

us/3659967.json

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+"{\"id\": \"3659967\", \"name\": \"UNITED STATES of America, v. Johnny GUNTER, Appellant\", \"name_abbreviation\": \"United States v. Gunter\", \"decision_date\": \"2009-06-24\", \"docket_number\": \"No. 07-1291\", \"first_page\": \"135\", \"last_page\": \"135\", \"citations\": \"569 F.3d 135\", \"volume\": \"569\", \"reporter\": \"Federal Reporter 3d Series\", \"court\": \"United States Court of Appeals for the Third Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:22:04.206499+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before FISHER, JORDAN, and VAN ANTWERPEN, Circuit Judges.\", \"parties\": \"UNITED STATES of America, v. Johnny GUNTER, Appellant.\", \"head_matter\": \"UNITED STATES of America, v. Johnny GUNTER, Appellant.\\nNo. 07-1291.\\nUnited States Court of Appeals, Third Circuit.\\nOpinion and Judgment Entered June 9, 2008.\\nPetition for Writ of Certiorari Granted April 27, 2009.\\nSubmitted on Remand from the Supreme Court of the United States June 16, 2009.\\nDated: June 24, 2009.\\nFrancis C. Barbieri, Jr., Office of United States Attorney, Philadelphia, PA, for United States of America.\\nDavid L. McColgin, Defender Association of Philadelphia, Federal Court Division, Philadelphia, PA, for Appellant.\\nBefore FISHER, JORDAN, and VAN ANTWERPEN, Circuit Judges.\", \"word_count\": \"139\", \"char_count\": \"905\", \"text\": \"JUDGMENT ORDER\\nFRANKLIN S. VAN ANTWERPEN, Circuit Judge.\\nAppellant's conviction is AFFIRMED. The judgment of sentence entered by the District Court is VACATED and this case is REMANDED to the District Court for sentencing in light of Spears v. United States, 555 U.S. -, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009).\"}"

us/368147.json

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+"{\"id\": \"368147\", \"name\": \"UNITED STATES v. UNIVIS LENS CO., INC. et al.\", \"name_abbreviation\": \"United States v. Univis Lens Co.\", \"decision_date\": \"1942-05-11\", \"docket_number\": \"No. 855\", \"first_page\": \"241\", \"last_page\": \"254\", \"citations\": \"316 U.S. 241\", \"volume\": \"316\", \"reporter\": \"United States Reports\", \"court\": \"Supreme Court of the United States\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"Me. Justice Jackson took no part in the consideration or decision of these cases.\", \"parties\": \"UNITED STATES v. UNIVIS LENS CO., INC. et al.\", \"head_matter\": \"UNITED STATES v. UNIVIS LENS CO., INC. et al.\\nNo. 855.\\nArgued April 9, 10, 1942.\\nDecided May 11, 1942.\\nMr. Samuel S. Isseks and Assistant Attorney General Arnold, with whom Solicitor General Fahy and Messrs. James C. Wilson, Richard H. Demuth, and Stanley E. Disney were on the brief, for the United States.\\nMr. H. A. Toulmin, Jr., with whom Messrs. Frederick S. Duncan and John M. Mason were on the brief, for appellees in No. 855 and appellants in No. 856.\\nTogether with No. 856, Univis Lens Co., Inc. et al. v. United States, also on appeal from the District Court of the United States for the Southern District of New York.\", \"word_count\": \"3991\", \"char_count\": \"23648\", \"text\": \"Mr. Chief Justice Stone\\ndelivered the opinion of the Court.\\nThese cases come here on direct appeal and cross appeal from a judgment of the District Court granting in part and denying in part the Government's prayer for an in junction restraining violations of \\u00a7 \\u00a7 1 and 3 of the Sherman Act, 15 U. S. C. \\u00a7 1,3, which make unlawful any contract, combination or conspiracy in restraint of trade or commerce among the states. The principal questions for decision are:\\nFirst: Whether the system established and maintained by the Univis Corporation, appellee and cross appellant, for licensing the manufacture and sale of patented multifocal eyeglass lenses is excluded by the patent monopoly from the operation of the Sherman Act.\\nSecond: Whether if not so excluded the resale price provisions of the licensing system are within the prohibition of the Sherman Act and not exempted from it by the provisions of the Miller-Tydings Act amendment of \\u00a7 1 of the Sherman Act, 50 Stat. 693.\\nAppellee, Univis Lens Company, was the owner of a number of patents and two trademarks relating to multifocal lenses. In 1931 it organized appellee, Univis Corporation. The Lens Company then acquired and now holds a majority of the stock of the Corporation. The individual appellees are the principal stockholders of the Lens Company. They are stockholders in the Corporation and are the principal officers of both corporations, which may for the purposes of this suit be treated as though they were a single corporation. Upon the organization of the Corporation, the Lens Company transferred to it all its interest in the patents and trademarks presently involved, and the Corporation then proceeded to set up and has since maintained the licensing system which the Government now assails.\\nThe relevant features of the system are as follows: The Corporation licenses the Lens Company to manufacture lens blanks and to sell them to designated licensees of the Corporation, upon the Lens Company's payment to the Corporation of an agreed royalty of 50 cents a pair. The lens blanks are rough opaque pieces of glass of suitable size, design and composition for use, when ground and polished, as multifocal lenses in eyeglasses. Each blank is composed of two or more pieces of glass of different refractive power, of such size, shape, and composition and so disposed that when fused together in the blank it is said to conform to the specifications and claims of some one of the Corporation's patents.\\nThe Corporation also issues three classes of licenses\\u2014 licenses to wholesalers, to finishing retailers and to prescription retailers. The licenses to wholesalers authorize the licensees to purchase the blanks from the Lens Company, to finish them by grinding and polishing, and to sell them to prescription licensees only at prices fixed by the Corporation licensor. In finishing the lenses so as to make them an effective aid to vision of the prospective wearer, to whom the prescription retailer sells, it is necessary for the wholesaler, by grinding the blanks, to conform their curvatures to the prescription supplied by the retailer with his order. By the terms of the license the wholesalers are required to keep full accounts of all sales, showing the sales prices of lenses and the names of the purchasers, and to make them available to representatives of the Corporation.\\nThe licenses to finishing retailers\\u2014who purchase the blanks from the Lens Company, grind and polish them and adjust the lenses, in frames or supports, to the eyes of the consumers\\u2014contain similar provisions. The retailers are licensed to purchase the blanks of the Lens Company and to sell them to their customers at prices prescribed by the Corporation licensor.\\nBoth the licenses to wholesalers and to finishing retailers require the licensee to notify the Corporation \\\"of any violation on the part of any jobbers or other licensees of the agreements respectively made by them with the Corporation, and to assist the Corporation in all possible ways in securing evidence against, and enforcing its agreements with such jobbers and licensees.\\\"\\nThe licenses to prescription retailers, who are without facilities for grinding and finishing the lenses, but who prescribe and adjust glasses for their customers, are signed both by the Corporation and a licensor wholesaler, and grant to the retailer a \\\"franchise to prescribe and fit Univis lenses,\\\" in return for which the prescription retailer agrees to sell finished lenses only to consumers and only at prices prescribed by the Corporation.\\nAll the licenses to wholesalers and retailers recite the Corporation's ownership of the lens patents and purport to confer on the licensee the privilege of selling the patented invention in the manner and to the extent stated. No royalties are exacted of any of the licensees other than the 50 cents collected by the Corporation for each pair of blanks sold by the Lens Company. The rewards of the corporate appellees for the exploitation of the patents and the patented lenses are derived wholly from the sales by the Lens Company of the blanks, from the proceeds of which the 50 cent royalty is paid.\\nThe prices prescribed and maintained under the licensing system are: $3.25 a pair for the blanks sold by the Lens Company to wholesalers, and $4 a pair for those sold to finishing retailers; $7 a pair for finished lenses sold by wholesalers; $16 a pair for white, and $20 for tinted, lenses sold to consumers by prescription and finishing retailers.\\nThe Corporation pursues the policy of issuing licenses to \\\"qualified licensees\\\" who, it is said, are required to maintain \\\"high standards of practice\\\" and to be skilled in the performance of the services which they undertake to render. According to the Corporation's instructions to its field representatives, \\\"price cutters\\\" are not eligible as prescription retailer licensees. Inquiry is made to ascertain whether prospective licensees advertise prices, and whether they are considered in their communities to be price cutters. The Corporation cancels licenses principally because of the failure of licensees to adhere to the price fixing provisions but also because they advertise prices or the acceptance of installment payments, or for other forms of advertising objectionable to it; for selling Univis lenses to customers other than those designated by the Corporation; for not giving a certain percentage of the licensees' multifocal lens business to Univis; because the licensee is located in a drug, department or jewelry store, or because the licensee engaged in price cutting in the sale of the products of other manufacturers.\\nFor a time the Corporation licensed approximately 20 per cent of the retailers in a locality. It now licenses a larger percentage but not more than 50 per cent. There are approximately 330 wholesaler licensees, 325 finishing retailer licensees and 6,500 prescription retailer licensees located in various states of the Union, including New York and the District of Columbia. The Corporation, by its representatives, solicits licenses and negotiates with licensees in the towns and cities where they conduct their business, including the Southern District of New York. The Lens Company, whose annual sales volume is approximately $1,000,000, ships blanks hi interstate commerce from its factory in Ohio to wholesalers and finishing licensees in the various places where they are located, including the Southern District, where its representatives visit licensees for the purpose of instructing them in finishing lens blanks and for promoting sales of Univis lenses. The facts amply established the venue of the court below. Eastman Kodak Co. v. Southern Photo Co., 273 U. S. 359, 373.\\nOf the sixteen patents owned by the Corporation, three are unrelated to the issues of the present case; five are for methods of producing lenses utilized by the Lens Company in manufacturing blanks and do not concern any method or process employed by the licensees who finish the lens blanks. Each of the remaining eight patents relates to the shape, size, composition and disposition of the pieces of glass of different refractive power in the blanks into which they are fused.\\nThe District Court found, 41 F. Supp. 258, that the claims of each of these eight patents are for a finished lens and that consequently the wholesalers and finishing retailers, in grinding and polishing each lens, practice in part the patent, in conformity to which the Lens Company has manufactured the blanks which it supplies. The court thought that without the granted license the final step in finishing the lens would infringe the patent and concluded that for this reason the Corporation could condition its licenses upon the maintenance by the licensee of the prescribed retail price. See United States v. General Electric Co., 272 U. S. 476. But it held that the prescription retailer licenses are unlawful because their restrictions upon the resale of the finished product are not within the patent monopoly and are proscribed by the Sherman Act.\\nIt also held that certain \\\"fair trade agreements\\\" entered into by the Lens Company with the licensees for the control of resale prices of the finished lenses, were not within the exception to the Sherman Act created by the MillerTydings Act. This was because the Lens Company had undertaken to fix the resale price of the finished lenses, which are a different product from the lens blanks which it manufactures and sells. The court accordingly limited the relief which it granted to an injunction restraining respondents from carrying out or enforcing the restrictive provisions of the prescription retailer licenses and the fair trade agreements, and from using its licensing system\\u2014as has been done in one instance\\u2014as the means of preventing a particular competitior from manufacturing and distributing multifocal lens blanks similar in appearance to those produced by the Lens Company.\\nThe Government has not put in issue the validity of the lens patents, but argues that their scope does not extend beyond the structure of the lens blanks and consequently affords no basis for the Corporation's restrictions on the sale of the finished lenses which the wholesalers and finishing retailers fashion from blanks purchased from the Lens Company. It insists that the novel features of the invention do not include more than the combination of shape, size and arrangement of the described pieces of glass when they are fused into the blank; that the grinding and polishing of the blank involve no practice and add no feature not common to the finishing and \\\"fitting\\\" of other types of multifocal lenses which are not covered by the patents; and that their scope cannot be lawfully extended to a procedure not in itself novel merely because it is applied to an article which embodies the only novel features of the alleged invention, and has by the sale become a lawful subject of commerce.\\nThe record gives no account of the prior art and does not provide us with other material to which, if available, resort might appropriately be had in determining the nature of an alleged invention and the validity and scope of the patent claims founded upon it. In any event, we find it unnecessary, in the circumstances of this case, to decide whether, as the court below held, the patent claims can rightly be said to include the finishing of the blanks.\\nAs appellees concede, the invention of only a single lens patent is utilized in making each blank and finishing it as a lens. We therefore put to one side questions which might arise if the finisher of a particular lens blank utilized the invention of some patent other than the patent which was practiced in part by the manufacture of the blank. And we assume for present purposes, without deciding, that the patent is not fully practiced until the finishing licensee has ground and polished the blank so that it will serve its purpose as a lens. But merely because the licensee takes the final step in the manufacture of the patented product, by doing work on the blank which he has purchased from the patentee's licensee, it does not follow that the patentee can control the price at which the finished lens is sold.\\nNotwithstanding the assumption which we have made as to the scope of the patent, each blank, as appellees insist, embodies essential features of the patented device and is without utility until it is ground and polished as the finished lens of the patent. We may assume also, as appellees contend, that sale of the blanks by an unlicensed manufacturer to an unlicensed finisher for their completion would constitute contributory infringement by the seller. Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U. S. 325, 332-33; cf. Carbice Corp. v. American Patents Corp., 283 U. S. 27, 34.\\nBut in any case it is plain that where the sale of the blank is by the patentee or his licensee\\u2014here the Lens Company\\u2014to a finisher, the only use to which it could be put and the only object of the sale is to enable the latter to grind and polish it for use as a lens by the prospective wearer. An incident to the purchase of any article, whether patented or unpatented, is the right to use and sell it, and upon familiar principles the authorized sale of an article which is capable of use only in practicing the patent is a relinquishment of the patent monopoly with respect to the article sold. Leitch Mfg. Co. v. Barber Co., 302 U. S. 458, 460-61; B. B. Chemical Co. v. Ellis, 314 U. S. 495. Sale of a lens blank by the patentee or by his licensee is thus in itself both a complete transfer of ownership of the blank, which is within the protection of the patent law, and a license to practice the final stage of the patent procedure. In the present case the entire consideration and compensation for both is the purchase price paid by the finishing licensee to the Lens Company. We have no question here of what other stipulations, for royalties or otherwise, might have been exacted as a part of the entire transaction, which do not seek to control the disposition of the patented article after the sale. The question is whether the patentee or his licensee, no longer aided by the patent, may lawfully exercise such control.\\nThe declared purpose of the patent law is to promote the progress of science and the useful arts by granting to the inventor a limited monopoly, the exercise of which will enable him to secure the financial rewards for his invention. Constitution of the United States, Art. I, \\u00a7 8, Cl. 8; 35 U. S. C. \\u00a7 31, 40. The full extent of the monopoly is the patentee's \\\"exclusive right to make, use, and vend the invention or discovery.\\\" The patentee may surrender his monopoly in whole by the sale of his patent or in part by the sale of an article embodying the invention. His monopoly remains so long as he retains the ownership of the patented article. But sale of it exhausts the monopoly in that article and the patentee may not thereafter, by virtue of his patent, control the use or disposition of the article. Bloomer v. McQuewan, 14 How. 539, 549-50; Adams v. Burke, 17 Wall. 453; Hobbie v. Jennison, 149 U. S. 355. Hence the patentee cannot control the resale price of patented articles which he has sold, either by resort to an infringement suit, or, consistently with the Sherman Act (unless the Miller-Tydings Act applies), by stipulating for price maintenance by his vendees. Bauer & Cie v. O'Donnell, 229 U. S. 1; Boston Store v. American Graphophone Co., 246 U. S. 8; Straus v. Victor Talking Machine Co., 243 U. S. 490; Ethyl Gasoline Corp. v. United States, 309 U. S. 436, 456-57, and cases cited.\\nWe think that all the considerations which support these results lead to the conclusion that where one has sold an uncompleted article which, because it embodies essential features of his patented invention, is within the protection of his patent, and has destined the article to be finished by the purchaser in conformity to the patent, he has sold his invention so far as it is or may be embodied in that particular article. The reward he has demanded and received is for the article and the invention which it embodies and which his vendee is to practice upon it. He has thus parted with his right to assert the patent monopoly with respect to it and is no longer free to control the price at which it may be sold either in its unfinished or finished form. No one would doubt that if the patentee's licensee had sold the blanks to a wholesaler or finishing retailer, without more, the purchaser would not infringe by grinding and selling them. The added stipulation by the patentee fixing resale prices derives no support from the patent and must stand on the same footing under the Sherman Act as like stipulations with respect to unpatented commodities. Ethyl Gasoline Corp. v. United States, supra.\\nOur decisions have uniformly recognized that the purpose of the patent law is fulfilled with respect to any particular article when the patentee has received his reward for the use of his invention by the sale of the article, and that once that purpose is realized the patent law affords no basis for restraining the use and enjoyment of the thing sold. Adams v. Burke, supra, 456; Keeler v. Standard Folding Bed Co., 157 U. S. 659; Motion Picture Co. v. Universal Film Co., 243 U. S. 502; and see cases collected in General Pictures Co. v. Electric Co., 305 U. S. 124, 128, n. 1. In construing and applying the patent law so as to give effect to the public policy which limits the granted monopoly strictly to the terms of the statutory grant, Morton Salt Co. v. Suppiger Co., 314 U. S. 488, the particular form or method by which the monopoly is sought to be extended is immaterial. The first vending of any article manufactured under a patent puts the article beyond the reach of the monopoly which that patent confers. Whether the licensee sells the patented article in its completed form or sells it before completion for the purpose of enabling the buyer to finish and sell it, he has equally parted with the article, and made it the vehicle for transferring to the buyer ownership of the invention with respect to that article. To that extent he has parted with his patent monopoly in either case, and has received in the purchase price every benefit of that monopoly which the patent law secures to him. If he were permitted to control the price at which it could be sold by others he would extend his monopoly quite as much in the one case as in the other, and he would extend it beyond the fair meaning of the patent statutes and the construction which has hitherto been given to them.\\nThere is thus no occasion for our reconsideration, as the Government asks, of United States v. General Electric Co., supra, on which appellees rely. The Court in that case was at pains to point out that a patentee who manufactures the product protected by the patent and fails to retain his ownership in it can not control the price at which it is sold by his distributors (272 U. S. at 489). Accordingly, neither the Lens Company nor the Corporation, by virtue of the patents, could after the sale of the lens blank exercise any further control over the article sold.\\nThe price fixing features of appellees' licensing system, which are not within the protection of the patent law, violate the Sherman Act save only as the fair trade agreements may bring them within the Miller-Tydings Act. Agreements for price maintenance of articles moving in interstate commerce are, without more, unreasonable restraints within the meaning of the Sherman Act because they eliminate competition, United States v. Trenton Pot teries Co., 273 U. S. 392; United States v. Socony-Vacuum Co., 310 U. S. 150, and restrictions imposed by the seller upon resale prices of articles moving in interstate commerce were, until the enactment of the Miller-Tydings Act, 50 Stat. 693, consistently held to be violations of the Sherman Act. Ethyl Gasoline Co. v. United States, supra, 457, and cases cited.\\nThe Miller-Tydings Act provides that nothing in the Sherman Act \\\"shall render illegal, contracts or agreements prescribing minimum prices for the resale of a commodity which bears, or the label or container of which bears, the trade mark, brand, or name of the producer or distributor of such commodity and which is in free and open competition with commodities of the same general class produced or distributed by others . . whenever such agreements are lawful where the resale is made.\\nThe contracts entered into by the Lens Company with the licensees of the Corporation stipulate for the maintenance of the prices which are prescribed by the licensing system. Appellees assert, and we assume for present purposes, that the blanks which the Lens Company sells and the finished lenses are marked by appellees' trademark as required by the statute. In the contracts the Lens. Company is designated as the manufacturer of \\\"eye glass lenses\\\" which are distributed and sold under the trademark of the manufacturer. But the Lens Company manufactures the blanks and not the finished lenses to which the resale prices apply. It is therefore not the manufacturer of the \\\"commodity\\\" which the licensees sell, and the licensees are not engaged in the \\\"resale\\\" of the same commodity they buy. We find nothing in the language of the Miller-Tydings Act, or in its legislative history, to indicate that its provisions were to be so applied to products manufactured in successive stages by different processors that the first would be free to control the price of his successors. The prescribed prices are thus not within the Miller-Tydings exception to the Sherman Act.\\nAppellees stress the features of .their licensing system by which it is said they protect the public interest and their own good will by the selection as licensees of those who are specially skilled and competent to render the service which they undertake. But if we assume that such restrictions might otherwise be valid, cf. Fashion Guild v. Trade Commission, 312 U. S. 457, 467, these features are so interwoven with and identified with the price restrictions which are the core of the licensing system that the case is an appropriate one for the suppression of the entire licensing scheme even though some of its features, independently established, might have been used for lawful purposes. Ethyl Gasoline Corp. v. United States, supra, 461. The injunction of the District Court will therefore be continued, and extended so as to suppress all the license contracts and the maintenance of the licensing system which appellees have established, other than the Corporation's license to the Lens Company. The judgment in No. 856 is affirmed. The judgment in No. 855 is reversed, and both cases are remanded to the district court for the entry of an appropriate decree in conformity to this opinion.\\nNo. 855 reversed.\\nNo. 856 affirmed.\\nMe. Justice Jackson took no part in the consideration or decision of these cases.\"}"

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+"{\"id\": \"3698887\", \"name\": \"UNITED STATES of America, v. Jose BRITO, Defendant\", \"name_abbreviation\": \"United States v. Brito\", \"decision_date\": \"2008-12-22\", \"docket_number\": \"No. 08 Cr. 420(SCR)\", \"first_page\": \"582\", \"last_page\": \"590\", \"citations\": \"592 F. Supp. 2d 582\", \"volume\": \"592\", \"reporter\": \"Federal Supplement 2d\", \"court\": \"United States District Court for the Southern District of New York\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T17:54:54.798551+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"UNITED STATES of America, v. Jose BRITO, Defendant.\", \"head_matter\": \"UNITED STATES of America, v. Jose BRITO, Defendant.\\nNo. 08 Cr. 420(SCR).\\nUnited States District Court, S.D. New York.\\nDec. 22, 2008.\\nSarah Rebecca Krissoff, U.S. Attorney\\u2019s Office, White Plains, NY, for United States of America.\\nJames Kousouros, Law Off. James Kou-souros, Kew Gardens, NY, for Defendant.\", \"word_count\": \"4202\", \"char_count\": \"25273\", \"text\": \"MEMORANDUM DECISION AND ORDER\\nSTEPHEN C. ROBINSON, District Judge.\\nJose Brito has been charged with two counts of violating the laws of the United States. The indictment charges that, on March 21, 2008, Mr. Brito, along with several other individuals, distributed and possessed with intent to distribute cocaine and also entered into a conspiracy to violate the narcotics laws, both in violation of 21 U.S.C. \\u00a7 812, 841(a)(1), and 841(b)(1)(C). Following his arrest, Mr. Brito made several statements to a police officer while in the custody of the City of Yonkers Police Department. Mr. Brito has filed a motion, among other things, to suppress those statements, and, on November 27, 2008, the Court held an evidentiary hearing. On December 8, 2008, the parties submitted simultaneous memoranda addressing the legal issues raised by the testimony presented at the hearing, and Mr. Brito submitted a supplemental memorandum on December 9, 2008.\\nFor the reasons set forth in this opinion, the Court grants in part and denies in part Mr. Brito's motion to suppress.\\nI\\nBACKGROUND\\nA. Facts\\nOn March 20, 2008, a confidential informant (the \\\"Cl\\\") working with the City of Yonkers Police Department met an individual later identified as Jose Brito outside of the Yonkers Motor Inn (the \\\"Inn\\\"), in Yonkers, New York. After the meeting, the Cl informed police officers that Mr. Brito had told him that he (Mr. Brito) had three kilograms of cocaine to sell. The following day, March 21, 2008, the Cl, under the supervision of law enforcement officers, called Mr. Brito to arrange a purchase of the three kilograms of cocaine. The Cl and Mr. Brito agreed to meet at the parking lot of the Inn.\\nThe Cl then met with Mr. Brito in the parking lot, and law enforcement officers observed him getting into Mr. Brito's car. Shortly thereafter, the Cl called an officer working with the Drug Enforcement Administration Task Force (the \\\"Task Force\\\") as well as an undercover Task Force officer. The Cl confirmed that Mr. Brito had told him that the drugs would be arriving shortly. The Cl then called the Task Force officers to tell them that the drugs had arrived in a second car.\\nThe undercover officer left the guest room at the Inn wearing a concealed recording device, and he entered the second car. Inside the car were the Cl, Mr. Brito, and a third-man later identified as Juan Deoleo. After discussing the details of the drug purchase, Mr. Brito took the undercover officer to the second car, which was being driven by an individual later identified as Jason Anderson. Mr. Brito bent over the front seat and retrieved what appeared to be three kilograms of cocaine. Mr. Brito and the undercover officer discussed the details of the drug purchase, and Anderson confirmed that the drugs were good.\\nThereafter, the undercover officer exited the second car, and Mr. Brito, Anderson, and Deoleo were arrested. The three kilo grams of cocaine were field tested; one of the kilograms did not test positive for cocaine, and the second and third kilograms tested positive in certain places and negative in others.\\nB. Procedural History\\nOn the basis of this alleged conduct, Mr. Brito was indicted on two counts of violating the laws of the United States. The indictment charges that, on March 21, 2008, Mr. Brito, along with several other individuals, distributed and possessed with intent to distribute crack cocaine and also entered into a conspiracy to violate the narcotics laws, both in violation of 21 U.S.C. \\u00a7 812, 841(a)(1), and 841(b)(1)(C). Following his arrest, Mr. Brito made three sets of statements to Jose Pina, a detective with the City of Yonkers Police Department.\\nOn September 15, 2008, Mr. Brito filed a motion seeking to suppress those statements and seeking immediate disclosure of Brady, Giglio, Rule 16 discovery, and Rule 404(b) evidence. In connection with his motion to suppress, Mr. Brito originally submitted an affidavit stating that \\\"[a]t no time during this period did the agents read me any rights prior to speaking with me.\\\" Affidavit of Jose Brito (\\\"Brito Aff.\\\") \\u00b6 3. Despite this claim, it appears from the testimony presented at the November 27, 2008, evidentiary hearing and from the post-hearing legal memoranda that Mr. Brito has changed course \\u2014 claiming that he was read, but did not waive, his Miranda rights. The Court turns to that testimony now.\\nC. Suppression Hearing\\nAt the December 8 evidentiary hearing, the Government called as a witness Detective Jose Pina. Detective Pina testified that, on March 21, 2008, he, along with Detective Louis Venturino, interviewed Mr. Brito at the headquarters of the City of Yonkers Police Department.\\nAccording to Detective Pina, he advised Mr. Brito of his Miranda rights as soon as Mr. Brito was brought into an interview room. In advising Mr. Brito of his rights, Detective Pina used a U.F.-76 \\\"Warning of Rights Card,\\\" which contains the Miranda warnings and is issued by the City of Yonkers Police Department. The card lists the five warnings under the heading, \\\"Rules of Interrogation\\\":\\n1. You have the right to remain silent.\\n2. Anything you say can and will be used against you in a court of law.\\n3. You have the right to talk to a lawyer and have him present with you while you are being questioned.\\n4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish.\\n5. You can decide at any time to exercise these rights and not answer any questions or make any statements.\\nGov't Exh. I. Immediately below these warnings, appears the heading, \\\"Waiver,\\\" and immediately below that are written the following two questions:\\n1. Do you understand each of these rights I have explained to you?\\n2. Having these rights in mind, do you wish to talk to me/us now?\\nId.\\nDetective Pina testified that he read to Mr. Brito each of the five warnings, one at a time. After reading each warning, Detective Pina paused to ask Mr. Brito if he understood the warning that he had been read. Each time, Mr. Brito answered, \\\"Yes.\\\" At no point did Mr. Brito indicate that he wanted to stop the questioning or to speak to his lawyer. After reading the five warnings to Mr. Brito and having received Mr. Brito's assurances that he understood each warning, however, Detective Pina did not ask Mr. Brito whether Mr. Brito wished to waive these rights.\\nInstead, Detective Pina asked Mr. Brito \\\"if he wanted to cooperate with this investigation, if he wanted to speak to us regarding this investigation.\\\" Suppression Hr'g Tr. (\\\"Hr'g Tr.\\\") 12, Dec. 8, 2008. In response, Mr. Brito inquired about the charges against him. Detective Pina explained that \\\"he was being charged for delivering three kilograms of cocaine to an undercover officer.\\\" Id. Mr. Brito asked, \\\"[W]ell, that's now, but how about after the drugs are analyzed?\\\" Id. Detective Pina explained to Mr. Brito that he was \\\"still going to get charged with at least two kilograms of cocaine.\\\" Id.\\nDetective Pina then informed Mr. Brito that he (Detective Pina) was assigned to the DEA Task Force and that federal authorities were handling the case. Mr. Brito remarked, \\\"[FJederal, I know the federal system. My attorneys will take care of this.\\\" Id. Detective Pina told Mr. Brito that the charges against him were serious and that he was facing a great deal of time in prison and then asked him whether he would cooperate further with the investigation. Mr. Brito responded, \\\"I ain't like that. I don't give . up people.\\\" Id. at 14. At that point, Detective Pina asked Mr. Brito if he would sign the Miranda warning card, to which Mr. Brito responded, \\\"I'm not signing fuckin' nothing.\\\" Id. After this, the interview, which Detective Pina estimates lasted about fifteen minutes, ended.\\nDetective Pina and Detective Venturino then began to interview Deoleo and Anderson, the other individuals arrested at the Inn. About ten to fifteen minutes after Mr. Brito's interview ended, the detectives were escorting Deoleo out of the bathroom, and Mr. Brito shouted, \\\"Don't say anything to them. My attorneys will take care of us.\\\" Id.\\nLater that day, Detective Pina was informed by one of the Yonkers Police Department detectives that Mr. Brito had serious prior charges, including a robbery charge. In a common hallway outside of the holding cells, Detective Pina told Mr. Brito that a criminal history search had revealed that Mr. Brito had serious prior charges, including robberies. Mr. Brito responded, \\\"Look, you know, I had, I had a previous robbery and kidnapping charges. It got dropped down. The victims didn't show up.\\\" Id. Mr. Brito also stated, \\\"[YJou know, I'm not a bad guy. I only robbed drug dealers. I don't rob good people.\\\" Id. at 15. Finally, Mr. Brito explained that the victims had not shown up in the previous robbery case because they were drug dealers.\\nII\\nDISCUSSION\\nMr. Brito seeks to suppress the first and third sets of statements made by Mr. Bri-to. Mr. Brito contends that the first set of statements must be suppressed because it was \\\"elicited from Mr. Brito without a valid waiver of his right to remain silent.\\\" Defendant's Letter Brief (\\\"Def. Br.\\\") at 8. Mr. Brito submits, moreover, that the totality of the circumstances demonstrates that he did not implicitly waive his right to remain silent. Instead, Mr. Brito characterizes the dialogue with Detective Pina as a negotiation of sorts, in which he was seeking additional information prior to deciding whether to waive his rights. Indeed, Mr. Brito notes that the interview ended because of his statement that he \\\"didn't give . up people,\\\" Hr'g Tr. 14, and because he refused to sign the Miranda warning card. With respect to the third set of statements, Mr. Brito contends that they must be suppressed because Detective Pina attempted to solicit incriminating statements from Mr. Brito after Mr. Brito had invoked his right to remain silent by refusing to continue with the interview or to cooperate.\\nThe Government believes that Mr. Brito implicitly waived his Miranda rights by not invoking his rights and by voluntarily speaking to the detectives. After being asked whether he wanted to cooperate, Mr. Brito did not invoke his right to remain silent, but instead asked what the charges against him were and then asked Detective Pina whether the charges against him would change after the drugs were analyzed. The Government also submits that Mr. Brito's statements were not the product of interrogation; it argues that all of the statements were made voluntarily and not in response to express questioning \\\"or its functional equivalent.\\\" See generally Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The Court shall address each of these arguments after setting forth the relevant legal background.\\nA. Governing Legal Principles\\nBecause there is no dispute that Mr. Brito was in custody, that he was read his Miranda rights, or that he understood those rights, the Court begins its discussion with the principles governing waiver. Generally, waiver is defined as \\\"an intentional relinquishment or abandonment of a known right or privilege.\\\" Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). \\\"[T]he relinquishment of the right,\\\" the Supreme Court of the United States has explained, \\\"must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.\\\" Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). Once a suspect is informed of his Miranda rights, he may waive those rights either expressly or implicitly. North Carolina v. Butler, 441 U.S. 369, 375-76, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) (\\\"[A]n explicit statement of waiver is not invariably necessary to support a finding that the defendant waived the right to remain silent or the right to counsel guaranteed by the Miranda case.\\\"); United States v. Scarpa, 897 F.2d 63, 68 (2d Cir.1990) (\\\"In at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.\\\" (internal quotation marks and citations omitted)). Whether a suspect has implicitly waived his Miranda rights is determined on a case-by-case basis from the totality of the circumstances. Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979); United States v. Gaines, 295 F.3d 293, 297-98 (2d Cir.2002). Ultimately, the Government bears the burden of proving \\\"by a preponderance of the evidence that the defendant relinquished his rights voluntarily with a full awareness of the rights being waived and the consequences of doing so.\\\" Gaines, 295 F.3d at 298. With these principles in mind, the Court turns to the first set of statements made by Mr. Brito.\\nB. Mr. Brito's Motion to Suppress Statements\\n1. First Set of Statements\\nAny analysis of waiver in this case must begin with the observation that the parties do not dispute that Mr. Brito was informed of, and understood, the Miranda warnings that Detective Pina read to him. Indeed, Detective Pina, after reading each of the five Miranda rights individually, stopped to ask Mr. Brito whether he understood each particular right, and Mr. Brito answered \\\"yes\\\" each time. After Mr. Brito indicated that he understood the final right, Detective Pina asked him (for the first time) whether he wanted to cooperate in the investigation.\\nMr. Brito's response is notable, both for what it communicated and for what it did not communicate. Upon hearing Detective Pina's question, Mr. Brito did not remain silent or indicate that he wanted to exercise his right to remain silent or his right to have an attorney present. Rather, Mr. Brito inquired as to the charges against him, thus suggesting that he wanted to engage Detective Pina in a colloquy about his case. Detective Pina told him that he was being charged with delivering three kilograms of cocaine to an undercover officer. Again, Mr. Brito's response is notable both for what it communicated and for what it did not communicate. Once again, Mr. Brito did not choose to remain silent or indicate that he wanted to exercise any of the rights of which he had just been informed. Mr. Brito asked, \\\"[W]ell, that's now, but how about after the drugs are analyzed?\\\" Id. Assessed in the best light to Mr. Brito, his statement suggests that he was willing to discuss with Detective Pina the evidence involved in the investigation; a more realistic assessment is that Mr. Brito thought that he had somehow outwitted law enforcement authorities. Either way, his response to Detective Pina, contrary to Mr. Brito's contention, does not suggest that Mr. Brito was attempting to solicit \\\"additional information prior to deciding whether to waive his rights.\\\" Def. Letter Br. at 9. Mr. Brito's conduct until this point demonstrates that he was choosing not to exercise any of his Miranda rights but was willing to engage Detective Pina in a dialogue about the investigation. See United States v. Dosanjh, No. 08 Cr. 211, 2008 WL 5209991, at *5 (S.D.N.Y. Dec. 11, 2008) (finding implied waiver where the \\\"[defendant understood her rights, but nevertheless responded to [the officer's] comments and questions\\\"). Indeed, after Detective Pina informed Mr. Brito that Mr. Brito would \\\"still . get charged with at least two kilograms of cocaine\\\" by the federal authorities, Mr. Brito remarked that he knew the federal system and that his \\\"attorneys w[ould] take care\\\" of the case. Id. It was only after engaging in the foregoing eolio- quy with Detective Pina and after Detective Pina asked him a second time to cooperate did Mr. Brito state that he would not cooperate with the investigation.\\nAll of Mr. Brito's actions and words up to this point indicate that his statements were voluntary \\u2014 that is, \\\"the product of a free and deliberate choice rather than intimidation, coercion, or deception.\\\" Burbine, 475 U.S. at 421, 106 S.Ct. 1135; see also Scarpa, 897 F.2d at 68 (\\\"In at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.\\\" (internal quotation marks and citations omitted)). Mr. Brito's actions and words do not suggest any hesitation about speaking to Detective Pina or any desire to invoke his right to remain silent. See United States v. Montana, 958 F.2d 516, 519 (2d Cir.1992) (noting that the suspect \\\"had indicated his willingness to be interviewed by initiating the conversation\\\"). Nor was Detective Pina questioning Mr. Brito in an aggressive or coercive manner \\u2014 he merely asked Mr. Brito whether Mr. Brito wanted to cooperate and answered Mr. Brito's questions. See Dosanjh, 2008 WL 5209991, at *5 (noting that officers were not aggressive in questioning in finding an implied waiver). The Court therefore holds that the Government has met its burden of establishing beyond a preponderance of the evidence that Mr. Brito implicitly waived his right to remain silent for purposes of the first set of statements. Consequently, these statements will not be suppressed, and the Court turns to the third set of statements made by Mr. Brito.\\n2. Third Set of Statements\\nThe Court believes that Mr. Brito did not implicitly waive his Miranda rights for purposes of the third set of statements. These statements were made directly in response to Detective Pina's comments to Mr. Brito regarding Mr. Brito's prior criminal history. Prior to Detective Pina's comments, however, Mr. Brito had indicated that he would not cooperate with the investigation and also had categorically refused to sign the Miranda warning card. Following this conduct, Detective Pina ended the interview, thus indicating that Detective Pina sensed that Mr. Brito was not willing to talk further. Although a refusal to cooperate does not necessarily entail a refusal to talk, Mr. Brito's comment to Deoleo while Deoleo was being escorted back to an interview room is probative of Mr. Brito's state of mind. Mr. Brito shouted to Deoleo, \\\"Don't say anything to them. My attorneys will take care of us.\\\" Hr'g Tr. at 14. Accordingly, by the time that Detective Pina made the comments to Mr. Brito regarding his criminal history, Mr. Brito had indicated that he was unwilling to cooperate in the investigation, refused to sign the Miranda waiver card, and directed Deoleo to exercise his right to remain silent. Given Mr. Brito's words and conduct preceding the third set of statements and given that the Government bears the burden of establishing waiver, the Court cannot find that Mr. Brito's waived his right to remain silent for purposes of these statements.\\nThe Government contends that Mr. Brito's statements were not the product of interrogation but rather were voluntary. In Rhode Island v. Innis, the Supreme Court defined \\\"interrogation,\\\" for purposes of Miranda, as \\\"express questioning or its functional equivalent.\\\" 446 U.S. at 301, 100 S.Ct. 1682. The functional equivalent of express questioning, the Court explained, is \\\"any words or actions on the part of the police . that the police should know are reasonably likely, to elicit an incriminating response from the suspect.\\\" Id.; see also Daniel v. Conway, 498 F.Supp.2d 673, 680 (S.D.N.Y.2007) (ex plaining that \\\"[a]n incriminating response is any response that the prosecutor may seek to introduce at trial, whether inculpa-tory or exculpatory\\\"). In this case, Detective Pina told Mr. Brito that a criminal history search had revealed that Mr. Brito had a serious criminal history, including a robbery charge. Plainly, Detective Pina intended his comment about Mr. Brito's criminal history to elicit a response or cooperation from Mr. Brito after Mr. Brito already had indicated that he was unwilling to cooperate further.\\nIn this regard, the cases on which the Government relies are distinguishable. In each of those cases, the courts determined that the suspect had not been subjected to interrogation because it was the suspect himself who, unprompted, had initiated the conversation. See United States v. Cota, 953 F.2d 753, 759 (2d Cir.1992) (\\\"Cota's subsequent statements in the car on the way to arraignment were also not the product of custodial interrogation. Nor were they solicited in any way. As [the agent] testified at trial, Cota as the one to initiate the discussion . \\\"); United States v. Guido, 704 F.2d 675, 677 (2d Cir.1983) (\\\"Guido's statement was not the product of interrogation. While the agents did suggest that Guido cooperate in the investigation, they apparently also told him he should discuss this possibility with his attorney, and they indicated that Guido would not be questioned about the case at this time. There is no indication that the agents' conduct was designed to elicit an incriminating response.\\\" (internal quotation marks and citation omitted) (emphasis added)); United States v. Annucci, 2007 WL 1310156, at *5 (S.D.N.Y. May 3, 2007) (\\\"The conversation that preceded Defendant's incriminating statement was initiated by the Defendant himself.\\\"). Here, Detective Pina initiated the conversation about Mr. Brito's criminal history, presumably in an effort to change tactics and persuade Mr. Brito that it was in his interest to cooperate in light of his serious prior charges, given that Mr. Brito already had indicated that he did not want to cooperate. Consequently, the Court concludes that Mr. Brito was interrogated for purposes of Miranda, and therefore Mr. Bri-to's third set of statements shall not be suppressed.\\nC. Discovery Requests\\nThe Court denies Mr. Brito's request for an order requiring the Government to disclose forthwith Brady, Giglio, and Rule 16 discovery as well as early disclosure of Rule 404(b) evidence. The Government has represented to the Court that it has complied, and will continue to comply, with its Brady obligations and that it will turn over Giglio and Jencks Act, 18 U.S.C. \\u00a7 3500, materials in time for effective use. See In re United States v. Coppa, 267 F.3d 132, 147 (2d Cir.2001) (\\\"We reiterate the longstanding constitutional principle that as long as a defendant possesses Brady evidence in time for its effective use, the government has not deprived the defendant of due process of law simply because it did not produce the evidence sooner.\\\"); United States v. Trippe, 171 F.Supp.2d 230, 237-38 (S.D.N.Y.2001) (\\\"The usual practice in this district is that the Government agrees to make impeachment infor mation available to the defense at the same time as Jencks Act Material, that is, at least one day before the Government witness is called to testify.\\\"). Finally, the Government has indicated that it will make the required disclosure two weeks prior to trial, a practice that typically comports with Rule 404(b). See United States v. Fennell, 496 F.Supp.2d 279, 284 (S.D.N.Y.2007).\\nConclusion\\nFor the foregoing reasons, the Court grants in part and denies in part Mr. Brito's motion to suppress. The Clerk of the Court is directed to close docket entry number 17.\\nIt is so ordered.\\n. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).\\n. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).\\n. At the hearing, Detective Pina testified that, prior to the interview of Mr. Brito, Detective Lieutenant Kevin Tigue of the Narcotics Unit had told him that only two of the three kilograms had testified positive for cocaine and that the third kilogram was a \\\"sham.\\\" Id. at 13.\\n. Mr. Brito concedes that the second statement \\u2014 Mr. Brito's instruction to Deoleo, \\\"Don't say anything to them. My attorneys will take care of us,\\\" Hr'g Tr. 14 \\u2014 was a spontaneous statement that was not precipitated in any way by law enforcement personnel.\\n. Included in the first set of statements are Mr. Brito's inquiry about the charges against him, his statement, \\\"[W]ell, that's now, but how about after the drugs are analyzed,\\\" and his statement, \\\"[FJederal, I know the federal system. My attorneys will take care of this.\\\" Hr'g Tr. 12-14.\\n. Included in the third set of statements are the following statements: \\\"Look, you know, I had, I had a previous robbery and kidnapping charges. It got dropped down. The victims didn't show up\\\"; \\\"[YJou know, I'm not a bad guy. I only robbed drug dealers. I don't rob good people\\\"; and Mr. Brito's admission that the victims had not shown up in the previous robbery case because they were drug dealers. Hr'g Tr. 14-15.\\n. Although the Detective Pina testified that his conversation with Mr. Brito about Mr. Brito's prior criminal history was \\\"just a comment,\\\" Hr'g Tr. at 25-26, the Court finds from the totality of Detective Pina's testimony that Detective Pina's purpose in initiating this conversation with Mr. Brito, after Mr. Brito had already refused to cooperate or talk further, was to elicit a response or cooperation from Mr. Brito. Indeed, Detective Pina testified that the sole reason that he was at the Yonkers Police Department headquarters was \\\"for the purpose of interrog\\u00e1ting\\\" Mr. Brito, Deo-leo, and Anderson. Id. at 19.\"}"

us/3713673.json

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+"{\"id\": \"3713673\", \"name\": \"Rodney STICH, Plaintiff, v. UNITED STATES of America, et al., Defendants\", \"name_abbreviation\": \"Stich v. United States\", \"decision_date\": \"1991-09-23\", \"docket_number\": \"Civ. A. No. 91-1432\", \"first_page\": \"469\", \"last_page\": \"472\", \"citations\": \"773 F. Supp. 469\", \"volume\": \"773\", \"reporter\": \"Federal Supplement\", \"court\": \"United States District Court for the District of Columbia\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T17:53:14.994192+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Rodney STICH, Plaintiff, v. UNITED STATES of America, et al., Defendants.\", \"head_matter\": \"Rodney STICH, Plaintiff, v. UNITED STATES of America, et al., Defendants.\\nCiv. A. No. 91-1432.\\nUnited States District Court, District of Columbia.\\nSept. 23, 1991.\\nRodney Stich, pro se.\\nWilliam J. Dempster, Asst. U.S. Atty., Washington, D.C., for the U.S.\", \"word_count\": \"1215\", \"char_count\": \"7362\", \"text\": \"MEMORANDUM OPINION\\nSPORKIN, District Judge.\\nPlaintiff in this case is nothing if not a regular customer of the Federal court system. He is best called a \\\"serial litigator.\\\" In the past three years he has filed over thirty pro se actions. Between 1984 and 1987 he filed at least seventeen suits and appeals in Federal court against his ex-wife, her attorneys, and the state and federal judges who had earlier ruled against him. He has been convicted of criminal contempt for violating a 1986 order by United States District Court Judge Milton Swartz. In the past four years, he has filed fifteen cases with this District Court and eight appeals in the court of appeals for this circuit.\\nJust three months ago, in June of this year, Judge Hogan dismissed with prejudice a complaint that made allegations of a secret scheme to continue the imprisonment of the 52 American hostages in Iran. Two weeks before that case was summarily dismissed by Judge Hogan plaintiff filed a virtually identical complaint. In over fifty rambling pages of often unintelligible claims, plaintiff alleges, \\\"Smoking-gun evidence of the conspiracy defrauding the United States, through a scheme to deplete United States and NATO military supplies to delay the release of the American hostages by Iran.\\\" He claims there were \\\"possible/probable\\\" assassinations associated with this plot. He then alleges widespread federal crimes and corruption in the Justice Department and the federal judiciary. He makes claims under a laundry list of federal statutes and constitutional provisions.\\nPlaintiff has shown an appalling lack of respect for the judicial branch by again bringing what appears to be the identical complaint not once but twice to this same Court. The defendants in this action have moved for a vexatious litigant order. In view of plaintiffs pattern of activity over the past years and especially over the past few months, this Court deems it appropriate to grant defendants' motion.\\nThere is precedent for the entry of such an order in this circuit and in other circuits. The court of appeals for this circuit has affirmed injunctions restricting the ability of pro se plaintiffs to bring cases. See In re Powell, 851 F.2d 427 (D.C.Cir.1985); Martin-Trigona v. United States, 779 F.2d 72 (D.C.Cir.1985); Urban v. United Nations, 768 F.2d 1497 (D.C.Cir.1985). The second circuit explained why such orders are necessary when it wrote, \\\"Federal courts have both the inherent power and the constitutional obligation to protect their jurisdiction from conduct which impairs their ability to carry out Article III functions. In re Martin-Trigona, 737 F.2d 1254, 1261-1 (2d Cir.1984), cert. denied, 474 U.S. 1061, 106 S.Ct. 807, 88 L.Ed.2d 782 (1986).\\nIn the Martin-Trigona case, another vexatious litigant had plagued the district court of Connecticut and the second circuit with volumes of litigation. In upholding the district court's injunction, the second circuit wrote, \\\"If such power [to protect Article III jurisdiction] did not exist, or if its exercise were somehow dependent upon the actions of another branch of government or upon the entitlement of a private party to injunctive relief, the independence and constitutional role of Article III courts would be endangered.\\\" Martin-Trigona, 737 F.2d at 1261.\\nIn Procup v. Strickland, 792 F.2d 1069 (11th Cir.1986), the eleventh circuit echoed these reasons when it held that the district court has authority to restrict a litigant's ability to bring law suits. In that case, the appellant had filed over 175 lawsuits in a single judicial district. This behavior consumed large amounts of court time, for, as the court said, \\\"Every lawsuit filed, no matter how frivolous or repetitious, requires the investment of court time, whether the complaint is reviewed initially by a law clerk, a staff attorney, a magistrate, or the judge.\\\" 792 F.2d at 1072.\\nNo matter how plagued the court might feel by the filing of numerous frivolous lawsuits by Mr. Stich, it would not issue an injunction restricting the filing of suits without a carefully reasoned basis for doing so. The court takes note of the opinion in In re Powell, 851 F.2d 427 (D.C.Cir.1988) where the court of appeals found that such injunctions should only be issued in \\\"exigent circumstances\\\" and as an exception and not a regular practice. This Court has found that Mr. Stich's actions are frivolous and constitute outrageous harassment of the named defendants. Mr. Stich has demonstrated that he lacks the ability to discern those matters which genuinely demand judicial attention from those so frivolous or duplicative as to be a hindrance to the court. Mr. Stich has not filed a single lawsuit in the past three years with merit. He has clearly abused the system, and while he cannot be precluded from filing any future suits, he will be required to obtain leave of court before doing so. Accordingly, it is necessary that Mr. Stich obtain leave of court before filing any more suits pro se.\\nORDER\\nUpon consideration of the motion for an all encompassing vexatious litigant order filed on behalf of defendants Thornburgh, United States District Courts, United States Court of Appeals, and the United States and the entire record therein, it is this 20th day of September, 1991, hereby\\nORDERED that defendants' motion is granted; and it is\\nFURTHER ORDERED that both cases be dismissed with prejudice; and it is\\nFURTHER ORDERED that plaintiff shall seek leave of this Court before filing any new civil action; that he shall certify that any such complaint raises new matters not pending before or decided on the merits by any federal court or if the suit raises issues that have been adjudicated or are otherwise pending, he- must explain to the court why he intends to file another duplicative action; and that he shall truthfully so certify any complaint on pain of penalty of contempt of this Court.\\nAPPENDIX A\\nCases Filed By Pro Se Plaintiff Rodney Stich in United States District Court for the District of Columbia\\nDocket No. Case Name\\n1. 87-2214 Stich v. United States of America\\n2. 89-0170 Stich v. Kennedy\\n3. 89-0470 Stich v. Rehnquist\\n4. 89-1908 Stich v. United States of America\\n5. 89-2060 Stich v. United States of America\\n6. 89-2290 Stich v. United States of America\\n7. 89-2940 Stich v. Lynch\\n8. 89-2941 Stich v. Rehnquist\\n9. 89-2973 Stich v. Thornburgh\\n10. 89-2974 Stich v. United States of America\\n11. 89-3350 Stich v. Thornburgh\\n12. 91-1242 Stich v. United States of America\\nDocket No. Case Name\\n13. 91-1432 Stich v. United States of America\\n14. 91-2143 Stich v. United States of America\\n15. 91-2281 Stich v. United States of America\\nAPPENDIX B\\nAppeals Filed by Pro Se Appellant Rodney Stich in the United States Court of Appeals for the District of Columbia Circuit\\nCase Name Case No,\\n1. 87-5262 Stich v. Department of Justice\\n2. 89-5163 Stich v. Kennedy\\n3. 90-5045 Stich v. Thornburgh\\n4. 90-5046 Stich v. Bush\\n5. 90-5047 Stich v. United States of America\\n6. 90-5048 Stich v. Rehnquist\\n7. 90-5049 Stich v. Lynch\\n8. 91-5234 Stich v. United States of America\\n. See Appendix A.\\n. See Appendix B.\"}"

us/3716993.json

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+"{\"id\": \"3716993\", \"name\": \"NAUTILUS INSURANCE COMPANY, Plaintiff, v. NICKY & CLAIRE'S DAY CARE, INC., et al., Defendants\", \"name_abbreviation\": \"Nautilus Insurance v. Nicky & Claire's Day Care, Inc.\", \"decision_date\": \"2009-02-26\", \"docket_number\": \"No. EP-08-CV-297-DB\", \"first_page\": \"727\", \"last_page\": \"741\", \"citations\": \"630 F. Supp. 2d 727\", \"volume\": \"630\", \"reporter\": \"Federal Supplement 2d\", \"court\": \"United States District Court for the Western District of Texas\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T20:45:16.089545+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"NAUTILUS INSURANCE COMPANY, Plaintiff, v. NICKY & CLAIRE\\u2019S DAY CARE, INC., et al., Defendants.\", \"head_matter\": \"NAUTILUS INSURANCE COMPANY, Plaintiff, v. NICKY & CLAIRE\\u2019S DAY CARE, INC., et al., Defendants.\\nNo. EP-08-CV-297-DB.\\nUnited States District Court, W.D. Texas, El Paso Division.\\nFeb. 26, 2009.\\nJohn C. Tollefson, Stephen Andrew Melendi, Tollefson Bradley Ball & Mitchell, LLP, Dallas, TX, for Plaintiff.\\nDuane A. Baker, Attorney at Law, J. Roberto Oaxaca, Oaxaca, Bernal & Associates, Richard S. Feldman, Mounce, Green, Myers, Safi & Galatzan, P.C., Alejandro Duran, Jr., James F. Scherr, El Paso, TX, James F. Scherr, Robin Kennedy Johnston, Hermes Sargent Bates L.L.P., Dallas, TX, Lawrence A. Levy, Richard S. Feldman, Rivkin Radler, LLP, Uniondale, NY, for Defendants.\\nOscar Bustamante, El Paso, TX, pro se.\", \"word_count\": \"6344\", \"char_count\": \"40348\", \"text\": \"MEMORANDUM OPINION AND ORDER\\nDAVID BRIONES, District Judge.\\nOn this day the Court considered Plaintiff Nautilus Insurance Company's (\\\"Nautilus\\\") \\\"Motion For Summary Judgment,\\\" filed in the above-captioned cause on October 21, 2008. Defendant Jessica Reyes (\\\"Reyes\\\") and Defendant Fireman's Fund County Mutual Insurance Company (\\\"Fireman's Fund\\\") filed separate Responses on October 28, 2008, and November 3, 2008, respectively. On November 5, 2008, Nautilus filed its Reply. Subsequently, Reyes filed a \\\"Motion For Continuance Of Plaintiffs Motion For Summary Judgment,\\\" which the Court granted on December 1, 2008. After due consideration, the Court is of the opinion that the Court's Order of December 1, 2008, granting a continuance of Nautilus' Motion, be vacated and that Nautilus' Motion be granted for the reasons that follow.\\nBACKGROUND\\nThis case arises from a collision on November 4, 2005, involving a vehicle owned by Nicky & Claire's Daycare, Inc. (\\\"Nicky & Claire's\\\"). Nautilus issued a general liability insurance policy, policy number NC388404 with effective dates of December 6, 2004, through December 6, 2005, to Nicky & Claire's (\\\"the Policy\\\"). The Policy includes an \\\"auto exclusion,\\\" stating that the Policy does not cover \\\" 'bodily injury' or 'property damage' arising out of the ownership, maintenance, use or entrustment to others of any . 'auto' . that is owned or operated by . any insured.\\\"\\nAt the time of the collision, E.T. was allegedly in Nicky & Claire's' vehicle and, as a result, suffered injuries. Reyes, who enters this action individually and as next of friend of E.T., and Defendant Erika Marquez (\\\"Marquez\\\"), who alleges she was struck by Nicky & Claire's' vehicle during the collision, brought suit against Nicky & Claire's, Nautilus, and others in the 34th Judicial District Court of El Paso County, Texas (\\\"state court\\\"). Specifically, Reyes alleges in her state action pleading that on or about November 4, 2005, Brenda Sulema (\\\"Sulema\\\"), in the course and scope of her employment with Nicky & Claire's, was driving Nicky & Claire's' vehicle in which E.T., age five (5), was a passenger without child protective seating. Sulema was traveling westbound on Pershing in El Paso, Texas, when another vehicle, traveling northbound on Birch, failed to yield the right of way, thus colliding with Nicky & Claire's' vehicle. In Marquez's state action pleading, Marquez alleges that she was standing behind her vehicle when Sulema's vehicle, after being struck, slid sideways and collided with Marquez, crushing her between her vehicle and another parked vehicle.\\nIn the state action, Reyes and Marquez assert various tort claims based on alternative theories of negligence against certain state action defendants. Reyes and Marquez allege that Sulema was negligent in her driving as well as in failing to secure E.T. in a child protective seat. They further allege that Nicky & Claire's was negligent for failing to operate safe equipment and failing to properly hire, train, educate, and supervise its drivers. Reyes' and Marquez's state action pleadings also include declaratory judgment actions against Nautilus and Fireman's Fund. Specifically, Reyes sought a declaration from state court that Nautilus and/or Fireman's Fund must provide coverage as required by Texas law for Nicky & Claire's' alleged negligence in the instant collision. Nautilus moved for the state court to dismiss all claims against Nautilus, arguing that Reyes has no rights to assert against Nautilus as a judgment has not yet been entered against the insured, Nicky & Claire's. On December 29, 2008, the state court granted Nautilus's Motion to Dismiss, dismissing all claims against Nautilus in the state action without prejudice.\\nOn August 1, 2008, Nautilus filed a Complaint in federal court seeking a declaratory judgment to determine whether Nautilus has a duty to defend and/or indemnify Defendants Nicky & Claire's and Oscar Bustamante (\\\"Bustamante\\\"), the owner and registered agent for Nicky & Claire's. The instant Motion followed.\\nSTANDARD\\nSummary judgment should be granted only where \\\"the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.\\\" Fed.R.CivP. 56(c). A material fact is one that \\\"might affect the outcome of the suit under the governing law....\\\" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is inappropriate where a material fact is \\\"genuine\\\" in that a reasonable jury could return a verdict for the nonmoving party. Id. Thus, the Court considers all the evidence in the record, but makes no determination as to credibility of the evidence. See id. Further, the Court views factual questions and inferences in a light most favorable to the nonmovant. Calbillo v. Calender Oldsmobile, Inc., 288 F.3d 721, 725 (5th Cir.2002).\\nThe moving party bears the initial burden of identifying those portions of the pleadings, the discovery, and the disclosure materials on file which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). \\\"If the moving party-fails to meet this burden, the motion must be denied, regardless of the nonmovant's response.\\\" Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir.1995). If the movant meets this burden, however, the nonmovant must designate specific facts showing that a genuine issue for trial exists. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The nonmovant discharges this burden by alleging more than mere legal conclusions drawn from the pleadings. Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (stating the nonmovant may not successfully oppose summary judgment by merely citing the pleadings). Instead, the nonmovant must present affirmative evidence to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 257, 106 S.Ct. 2505. If the nonmovant fails to make a sufficient showing on an essential element of his case, the movant is entitled to summary judgment, \\\"since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.\\\" Celotex, 477 U.S. at 323, 106 S.Ct. 2548.\\nDISCUSSION\\nIn the instant Motion, Nautilus argues that no genuine issue as to any material fact exists and prays that the Court enter a declaratory judgment that Nautilus does not have a duty to defend or indemnify Nicky & Claire's and Bustamante for injuries arising from the collision. In her Response, Reyes asserts as genuine issues of material fact whether Nautilus knew that Nicky & Claire's was purchasing the Policy in order to comply with section 42.049 of the Texas Human Resources Code (\\\"section 42.049\\\") and whether Nautilus issued a Certificate of Insurance declaring that the Policy complied with section 42.049. As support for these assertions, Reyes introduced an admission by Nicky & Claire's that Nicky & Claire's procured the Policy in order to comply with section 42.049, which requires a child-care center to carry insurance sufficient to cover $300,000 for each occurrence of negligence. See Tex. Hum. Res.Code Ann. \\u00a7 42.049(b) (Vernon 2008). Additionally, Reyes argues that Nautilus' Motion for Summary Judgment fails as a matter of law. First, Reyes asserts that the Policy's auto exclusion is void as contrary to public policy and that Nautilus thus has a duty to defend or indemnify Nicky & Claire's and Bustamante. Second, Reyes argues that Nautilus incurred said duty because Nicky & Claire's allegedly violated section 746.5607 of the Texas Administrative Code by not providing E.T. with protective seating. In its Response, Fireman's Fund agrees with Nautilus that Nicky & Claire's' failure to comply with section 42.049 does not affect Nautilus' duty. Additionally, Fireman's Fund clarifies that Nautilus does not seek a declaratory judgment with regard to Fireman's Fund's duty to Nicky & Claire's and Bustamante and argues that Nautilus cannot recover attorneys' fees and court costs by succeeding in its declaratory judgment action.\\nFor the purposes of deciding the Motion for Summary Judgment, the Court must view factual questions and inferences in a light most favorable to Reyes and her co-Defendants. See Calbillo, 288 F.3d at 725. Accordingly, the Court assumes that Nautilus provided a Certificate of Insurance to the State of Texas stating that the Policy met Nicky & Claire's' statutory obligations, that Nautilus knew of those obligations before issuing the Policy, that Nautilus knew Nicky & Claire's purchased the Policy with the intent of fulfilling those obligations, and that Nicky & Claire's failed to provide proper protective seating for E.T. The Parties do not contest that Texas law applies to this diversity action.\\nUnder Texas law, when an insured is sued by a third party, a liability insurer's duty to defend is determined by comparing the facts alleged in the third party's petition against the policy terms. Mid-Continent Casualty Co. v. JHP Dev., Inc., 557 F.3d 207, 212-13 (5th Cir.2009) (applying Texas law); Northfield Ins. Co. v. Loving Home Care, Inc., 363 F.3d 523, 531 (5th Cir.2004) (applying Texas law). According to this \\\"eight-corners rule,\\\" \\\"[r]e-sort to evidence outside the four corners of these two documents is generally prohibited.\\\" JHP Dev., Inc., 557 F.3d at 212. Thus, an insurer incurs a duty to defend not based on the truth or falsity of the allegations, but whenever \\\"a plaintiffs factual allegations . potentially support a covered claim.\\\" Id.\\nThe duty to defend is broader than the duty to indemnify. Id. An insurer incurs the duty to indemnify based on the facts actually established in the underlying suit. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 821 (Tex.1997). While the \\\"duty to indemnify is generally not ascertainable until after the insured has been held liable, it is justiciable prior to a finding of liability when the same reasons negating the duty to defend also negate any duty to indemnify.\\\" Lincoln Gen. Ins. Co. v. Aisha's Learning Ctr., 468 F.3d 857, 858-59 (5th Cir.2006) (applying Texas law). Accordingly, the court may enter a judgment that the insurer has no duty to indemnify if the insurer has no duty to defend. W. Heritage Ins. Co. v. River Entm't, 998 F.2d 311, 315 (5th Cir.1993) (applying Texas law); Farmers Tex. County Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 84 (Tex.1997).\\nTo determine Nautilus' duty to defend or indemnify, the Court must preliminarily consider whether Nautilus' knowledge that Nicky & Claire's was purchasing the Policy to comply with section 42.049 and whether Nautilus' possible issuance of a Certificate of Insurance declaring that the Policy complied with section 42.049 are genuine material facts. The Court does so by interpreting the Policy to decide whether such extrinsic evidence is material. If the Court finds that the extrinsic evidence is not material, then the Court may address' the underlying legal issues. First, the Court examines Reyes' argument that the Policy's auto exclusion is void under public policy. Second, the Court considers Nautilus' argument that the Policy does not provide coverage for the facts alleged in Reyes' and Marquez's state court pleadings and that Nautilus therefore has no duty to defend or indemnify Nicky & Claire's and Bustamante. Third, the Court entertains Reyes' argument that Nautilus has a duty to defend and indemnify due to Nicky & Claire's failure to provide proper protective seating for E.T. Finally, the Court addresses Fireman's Fund's argument that Nautilus cannot receive attorney's fees and court costs.\\nA. Policy interpretation\\nPreliminarily, the Court must interpret the Policy and determine whether Reyes has presented a genuine issue of material fact that must be reserved for trial. Under Texas law, \\\"[insurance policies are controlled by rules of interpretation and construction which are applicable to contracts generally.\\\" Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). Courts must interpret policies \\\"to ascertain the true intent of the parties as expressed in the instrument.\\\" Id. A policy is unambiguous when a court can give it definite or certain legal meaning. Id. \\\"Parol evidence is not admissible for the purpose of creating an ambiguity.\\\" Id. Rather, a court must first determine whether the contract is ambiguous before considering the parties' interpretation and admitting extraneous evidence. Id.\\nAn ambiguity in a contract can either be \\\"patent\\\" or \\\"latent.\\\" Id. \\\"A patent ambiguity is evident on the face of the contract.\\\" Id. If the ambiguity only arises when a contract is applied to the subject matter with which it deals by reason of some collateral matter, the contract is latently ambiguous. Id. If a latent ambiguity arises from the application of the contract, then the court can admit parol evidence to ascertain the true intention of the parties as expressed in the agreement. Id.; Murphy v. Dilworth, 137 Tex. 32, 36, 151 S.W.2d 1004 (Tex.1941). However, \\\"[t]he ambiguity must become evident when the contract is read in context of the surrounding circumstances, not after parol evidence of intent is admitted to create an ambiguity.\\\" CBI Indus., Inc., 907 S.W.2d at 521. In short, extrinsic evidence may be admissible only \\\"to give the words of a contract a meaning consistent with that to which they are reasonably susceptible.\\\" Id. \\\"If the contract language is not fairly susceptible of more than one legal meaning or construction, however, extrinsic evidence is inadmissible to contradict or vary the meaning of the explicit language of the parties' written agreement.\\\" Id.\\nHere, the Policy is clear on its face. Reyes does not argue otherwise. First, the Policy contains a merger clause that the Policy \\\"contains all the agreements between [Nicky & Claire's and Bustamante] and [Nautilus] concerning the insurance afforded.\\\" Second, the language of the auto exclusion is clear. Under the \\\"Exclusions\\\" section of the Commercial General Liability Coverage Form, the Policy states:\\nThis insurance does not apply to: .\\n(g) Aircraft, Auto Or Watercraft\\n'Bodily injury or 'property damage' arising out of the ownership, maintenance, use or entrustment to others of any aircraft, 'auto' or watercraft owned or operated by or rented or loaned to any insured.....\\nThis exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the 'occurrence' which caused the 'bodily injury' of 'property damage' involved the ownership, maintenance, use or entrustment to others of any aircraft, 'auto' or watercraft that is owned or operated by or rented or loaned to any insured.\\nIn applying the Policy with the auto exclusion to the facts alleged in Reyes' and Marquez's state action pleadings, no latent ambiguity arises that necessitates the introduction of extrinsic evidence to determine the intent of Nautilus, Nicky & Claire's, and Bustamante at the time of contract formation. See id. at 520. In short, the Court is able to apply the auto exclusion to the alleged facts and determine whether the Policy covers the collision, as explained in Section C below. Since the Policy unambiguously includes the auto exclusion, the Court cannot consider an extrinsic Certificate of Insurance provided by Nautilus. Likewise, evidence of Nautilus' knowledge of Nicky & Claire's intent to comply with section 42.049 by purchasing the Policy is equally inadmissible. Therefore, Reyes raises no genuine issue of material fact that would affect the outcome of the instant action under the governing law. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505.\\nB. Void for Public Policy\\nAs the Court has found that the Policy includes the auto exclusion, the Court next turns to Reyes' argument that the auto exclusion is void as a matter of public policy. Contractual agreements may be invalidated on grounds of public policy, but this public policy exception is \\\"to be applied cautiously and only in plain cases involving dominant public interests.\\\" Fidelity & Deposit Co. of Md. v. Conner, 973 F.2d 1236, 1241 (5th Cir.1992). Unless the state courts or legislature affirmatively express \\\"an overriding public policy,\\\" a federal court must enforce the contractual agreement according to its plain meaning. Aero Int'l, Inc. v. U.S. Fire Ins. Co., 713 F.2d 1106, 1109 (5th Cir.1983). To determine whether an overriding public policy exists, a court examines whether the statute at issue is regulatory in nature, on whom the statute places the burden for compliance, and whether it expressly states an overriding public policy. See Scottsdale Ins. Co. v. Tex. Sec. Concepts & Investigation, 173 F.3d 941, 943 (5th Cir.1999) (applying Texas law); Nat'l County Mut. Fire Ins. Co. v. Johnson, 879 S.W.2d 1, 2 (Tex.1993); Tri-State Pipe & Equip., Inc. v. S. County Mut. Ins. Co., 8 S.W.3d 394, 399-400 (Tex. Ct. Appeals-Texarkana 1999).\\nReyes argues that the instant case is similar to National County Mutual Fire Insurance Company v. Johnson. In Johnson, the Supreme Court of Texas found a family member exclusion in an auto insurance policy void because it was inconsistent with the public policy underlying the Texas Motor Vehicle Safety-Responsibility Act (\\\"MVSRA\\\"). 879 S.W.2d 1, 2 (Tex.1993). The court found that amendments to the MVSRA to mandate auto liability insurance clearly reflected the legislature's purpose \\\"to protect claimants from losses by requiring all drivers to be responsible for damages arising out of their use of an automobile.\\\" Id. The State Board of Insurance had approved the family member exclusion, but the court held that the exclusion \\\"prevents a specific class of innocent victims, those persons related to and living with the negligent driver, from receiving financial protection under an insurance policy.\\\" Id. at 3. As such, the exclusion was inconsistent with the purposes of MVSRA and thus ineffective. Id.\\nNautilus distinguishes the instant case from Johnson and relies instead on Scottsdale Insurance Company v. Texas Security Concepts and Investigation (\\\"Texas Security \\\"), a decision issued by the United States Court of Appeals for the Fifth Circuit (\\\"Fifth Circuit\\\"). 173 F.3d 941 (5th Cir.1999) (applying Texas law). In Texas Security, Scottsdale Insurance Company (\\\"Scottsdale\\\") contracted with Texas Security, which provided security for an apartment complex, a liability insurance policy with an assault and battery exclusion. Id. at 942. After a Texas Security employee was charged with assaulting and raping two (2) women, Scottsdale sought a declaratory judgment that it had no duty to defend or indemnify Texas Security because of the exclusion. Id. The statute at issue, Texas Revised Civil Statute Art. 4413(29bb), \\u00a7 40(a), regulates the licensing of private security agencies. Id. The statute requires that the licensing board verify that the security agency applying for a license holds a general insurance policy that will cover \\\"all sums which the licensee becomes legally obligated to pay as damages because of bodily injury, property damage, or personal injury, caused by an event involving the principal, its servants, officers, agents or employees in the conduct of any business licensed under this Act.\\\" Tex.Rev.Civ. Stat. Art. 4413(29bb), \\u00a7 40(a) (Vernon 1999). The Fifth Circuit noted that the statutes addresses the security business, not the insurance company. Tex. Sec., 173 F.3d at 943. Additionally, the Fifth Circuit found that the statute \\\"is regulatory in nature and does not affirmatively establish a public policy of the state that would override the parties' agreement.\\\" Id. Thus, the Fifth Circuit held that an assault and battery exclusion was not void for public policy. Id.\\nSimilarly, the Court of Appeals of Texas, Texarkana, held that, despite Johnson, an insured's policy coverage did not automatically increase if a statute enacted later increased the statutorily required minimum insurance. Tri-State Pipe & Equip., Inc., 8 S.W.3d at 396. The court distinguished Texas Security from Johnson, observing that the statute at issue in TriState \\\"expressly permits a driver to satisfy the minimum amounts of financial responsibility with one or more insurance policies.\\\" Id. at 399. Further, the statute seems to place the burden on the insured to secure the required minimum amount of monetary coverage and lacks any language indicating that the insurer has the obligation to provide such coverage. Id. at 399-400. Thus, the court noted that \\\"it is entirely inappropriate and against public policy to place the burden on the insurer to force the insured to purchase a specific amount of insurance.\\\" Id. at 400.\\nIn the instant case, Reyes argues that the auto exclusion in the Policy is void for public policy. Reyes asserts that the Legislature specifically required child-care centers to provide a minimum amount of insurance coverage and that the Policy's auto exclusion, like the family member exclusion in Johnson, improperly attempts to narrow the required coverage. See Johnson, 879 S.W.2d at 3. Reyes further argues that section 42.049 places the burden on Nautilus to provide a Policy that complies with the statute because the insured has little or no bargaining power over the nature and extent of the exclusions. Nautilus replies that the statute governing childcare centers is regulatory in nature and places the burden on Nicky & Claire's\\u2014 not Nautilus \\u2014 to secure the required insurance coverage, and that the statute does not provide a public policy that would override Nautilus and Nicky & Claire's' agreement. The Court finds Reyes' arguments unconvincing.\\nThe statute states its purpose \\\"is to protect the health, safety, and well-being of the children of the state who reside in child-care facilities by establishing statewide minimum standards for their safety and protection and by regulating the facilities through a licensing program.\\\" Tex. Hum. Res.Code Ann. \\u00a7 42.001 (Vernon 2008). Accordingly, in order to operate a child-care facility, a person must have a license issued by the Texas Department of Family and Protective Services (\\\"the Department\\\"). Tex. Hum. Res.Code Ann. \\u00a7 40.001(3), 42.041(a) (Vernon 2008). Section 42.049 of the Human Resources Code requires that a childcare license holder \\\"maintain liability insurance coverage in the amount of $300,00 for each occurrence of negligence\\\" and that the policy \\\"cover injury to a child that occurs while the child is on the premises or in the care of the license holder.\\\" Tex. Hum. Res.Code Ann. \\u00a7 42.049(a). Additionally, section 42.049 requires the license holder to \\\"file with the department a certificate or other evidence from an insurance company showing that the license holder has an unexpired and uncancelled insurance policy or contract that meets the requirements of this section.\\\" Tex. Hum. Res.Code Ann. \\u00a7 42.049(b). Further, the statute provides certain remedies for violations of its provisions, all to be instituted by the Department against the license holder, not against the license holder's insurer. See Tex. Hum. Res.Code Ann. \\u00a7 42.0705-42.078. For example, if a license holder violates Chapter 42 of the Human Resources Code, the Department may reprimand the license holder or revoke or suspend the license. Tex. Hum. Res.Code Ann. \\u00a7 42.0705. The Department may also file suit against the license holder for civil penalties and injunctive relief. Tex. Hum. Res.Code Ann. \\u00a7 42.074-42.075.\\nThus, the statute does not expressly establish a Texas public policy that would override the agreement by Nicky & Claire's and Nautilus as embodied in the Policy. See Texas Security, 173 F.3d at 943. First, the statute at issue regulates child-care facilities. See Tex. Hum. Res. Code Ann. \\u00a7 42.001 et seq. Second, the statute places the burden on the license holder\\u2014Nicky & Claire's \\u2014 to secure the required insurance and provide proof of such insurance to the Department. See Tex. Hum. Res.Code Ann. \\u00a7 42.049. The statute does not require that such insurance be secured in only one (1) policy with one (1) insurance company. See Tri-State Pipe & Equip., Inc., 8 S.W.3d at 399. Nor does the statute expressly require insurers to investigate all of an insured's policies before issuing the insured a policy. Accordingly, a license holder could comply with the statute by securing a general liability policy with an auto exclusion so long as the license holder also procured an auto policy. Indeed, Nicky & Claire's had a separate auto policy provided by Fireman's Fund. Finally, the express purpose of the statute \\u2014 to protect children's well-being and regulate child-care centers\\u2014 does not impose any obligation on the insurers and can still be obtained by a licensed child-care center, provided it procured the correct combination of insurance policies. Given the regulatory nature of the statute, the burden it places on the insured to provide the Department with proof of sufficient insurance, and the absence of an overriding public policy in conflict with the auto exclusion, the Court finds that the Policy's auto exclusion is not void for public policy and that, therefore, Nautilus' Motion for Summary Judgment cannot be denied on those grounds.\\nC. Duty to Defend and Indemnify\\nHaving thus determined that the Policy includes the auto exclusion, the Court now considers Nautilus' argument in favor of summary judgment. Specifically, the Court determines whether the facts alleged in Reyes' and Marquez's state action pleadings are within the scope of the Policy's coverage. See Aisha's Learning Ctr., 468 F.3d at 858. If they are, then Nautilus has a duty to defend Nicky & Claire's. See id. If Nautilus has no duty to defend, then the Court may find that Nautilus has no duty to indemnify because, no matter what facts are established in the underlying suit, Nautilus would have no duty to indemnify. See id. at 858-59; Farmers Tex. County, 955 S.W.2d at 84.\\nAgain, the Policy excludes coverage for \\\" '[b]odily injury' . arising out of the ownership, maintenance, use or entrustment to others of any . 'auto' . owned or operated by or rented or loaned to any insured.\\\" Further, the exclusion also applies to \\\"claims against any insured alleg[ing] negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the 'occurrence' which caused the 'bodily injury'... involved the ownership, maintenance, use or entrustment to others of any . 'auto' . that is owned or operated by . any insured.\\\"\\nUnder Texas law, \\\" '[f]or liability to 'arise out of the use of a motor vehicle, a causal connection or relation must exist between the accident or injury and the use of the motor vehicle.' \\\" Aisha's Learning Ctr., 468 F.3d at 859 (quoting Mid-Century Ins. Co. v. Lindsey, 997 S.W.2d 153, 156 (Tex.1999)). For an injury to fall within the \\\"use\\\" coverage of an automobile policy or an auto exclusion:\\n(1) the accident must have arisen out of the inherent nature of the automobile, as such, (2) the accident must have arisen within the natural territorial limits of an automobile, and the actual use must not have terminated, (3) the automobile must not merely contribute to cause the condition which produces the injury, but must itself produce the injury.\\nLindsey, 997 S.W.2d at 157; see Aisha's Learning Ctr., 468 F.3d at 860 (applying Lindsey factors). Employing this test, the Fifth Circuit found an auto exclusion similar to the instant auto exclusion to preclude coverage of a child's injuries incurred when, after transporting the child to the daycare, the daycare worker left the child in the parked vehicle for several hours. Aisha's Learning Ctr., 468 F.3d at 860-61.\\nIn Reyes' and Marquez's state action pleadings, they allege that a Nicky & Claire's employee, driving a vehicle owned by Nicky & Claire's, collided with another vehicle, causing injuries to Marquez and E.T. E.T. is a child who was entrusted to the care of Nicky & Claire's, was in Nicky & Claire's vehicle, and did not have proper child seat protection. Marquez was standing on the street when she was hit by Nicky & Claire's vehicle. The collision arose out of the inherent nature of the vehicle within its territorial limits, and the vehicle produced the injuries. Clearly, these injuries fall within the Policy's auto exclusion. See Lindsey, 997 S.W.2d at 157. Further, Reyes' and Marquez's allegations of Nicky & Claire's negligent vehicle maintenance and hiring, training, and supervision of drivers are also precluded by the Policy's auto exclusion, as those allegations relate only to use of motor vehicles. Therefore, the Court finds that Nautilus does not have a duty to defend Nicky & Claire's and Bustamante. As the duty to defend is broader than the duty to indemnify, and the Court finds that the facts alleged in the state action are not within the Policy coverage, the Court also finds that Nautilus has no duty to indemnify Nicky & Claire's and Bustamante. Thus, the Court is of the opinion that Nautilus' Motion for Summary Judgment should be granted.\\nD. 40 Texas Administrative Code \\u00a7 746.5607 \\u2014 protective seating\\nNext, the Court considers Reyes' argument that Nautilus has a duty to defend and indemnify Nicky & Claire's and Bustamante because Nicky & Claire's allegedly violated section 746.5607 of the Texas Administrative Code, Title 40. Section 746.5607 requires a child-care center to secure a child in a vehicle with appropriate protective seating according to the manufacturer's instructions and the child's age, height, and weight. 40 Tex. Admin. Code \\u00a7 746.5607. The statute does not state that the child-care center's insurance company has the burden of ensuring that the child-care center provides the appropriate protective seating. Nevertheless, Reyes argues that Nautilus failed to perform its duties to ensure that Nicky & Claire's complied with this Texas law. The Court marvels at the duty this would impose on insurers, to be present every time a child is transported by the childcare center in order to monitor the childcare center's use of proper protective seating. While Nicky & Claire's may have violated section 746.5607 according to Reyes' alleged facts, Nautilus is not liable for such a violation.\\nFurther, such a violation would not alter the Policy interpretation or the Court's eight-corner analysis to determine Nautilus' duty to defend. As explained above, an insurer's duty to defend is determined by comparing the alleged facts to the policy agreement. See Loving Home Care, Inc., 363 F.3d at 531. Under this eight-corner's rule, a court would not consider other violations unless they somehow altered the terms of the policy agreement. Here, the Court already explained that the Policy is clear and that the Court does not consider extrinsic evidence in absence of contractual ambiguities. Therefore, Nicky & Claire's alleged violation of section 746.5607 does not impose on Nautilus a duty to defend or indemnify Nicky & Claire's or Bustamante and is not grounds for denying Nautilus' Motion for Summary Judgment.\\nE. Attorney's fees\\nFinally, the Court addresses Nautilus' ability to obtain attorneys' fees and court costs. While the Federal Declaratory Judgment Act does not independently authorize the award of attorney's fees, the Texas Declaratory Judgement Act does. Compare 28 U.S.C.A. \\u00a7 2202 (West 2006) with Tex. Civ. Prac. & Rem.Code \\u00a7 37.001 et seq. (Vernon 2008). Nevertheless, the Fifth Circuit has held that \\\"the Texas Act is procedural rather than substantive, and therefore it does not authorize an award of costs in a federal court declaratory judgement diversity action.\\\" Travelers Indem. Co. v. Citgo Petroleum Corp., 166 F.3d 761, 772 (5th Cir.1999). The instant case is a declaratory judgment action in federal court based on 28 U.S.C. \\u00a7 1332 diversity jurisdiction. Accordingly, the Court finds that Nautilus cannot receive an award of costs.\\nCONCLUSION\\nAfter due consideration, the Court finds that the pleadings and affidavits do not show that there is any genuine issue as to any material fact and that Nautilus does not have a duty to defend or indemnify Nicky & Claire's and Bustamante. The Policy unambiguously includes an auto exclusion, which is not void for public policy. The statute in question is regulatory in nature, imposes the duty of compliance on the license holder \\u2014 not the insurer, and does not express an overriding public policy that would negate Nautilus' and Nicky & Claire's' express agreement as embodied in the Policy. Further, Nicky & Claire's' alleged violation of section 746.5607 does not alter Nautilus' lack of duty to defend under the eight-corners rule. Thus, since the Policy does not provide coverage for the facts alleged in the state court action, Nautilus does not have a duty to defend Nicky & Claire's and Bustamante. As such, Nautilus similarly does not have a duty to indemnify Nicky & Claire's and Bustamante. Therefore, the Court is of the opinion that the Court's Order of December 1, 2008, continuing Nautilus' Motion for Summary Judgment, be vacated and that Nautilus' Motion for Summary Judgment be granted.\\nAccordingly, IT IS HEREBY ORDERED that the Court's Order of December 1, 2008, continuing Plaintiff Nautilus Insurance Company's \\\"Motion for Summary Judgment\\\" is VACATED.\\nIT IS FURTHER ORDERED that Plaintiff Nautilus Insurance Company's \\\"Motion For Summary Judgment\\\" is GRANTED.\\nIT IS FINALLY ORDERED that Plaintiff Nautilus Insurance Company's request for attorney's fees and costs of court is DENIED.\\n. Specifically, Reyes filed her Motion for Continuance on November 5, 2008. On November 6, 2008, Nautilus filed its Response. On November 12, 2008, Reyes provided a Supplement to her Motion for Continuance, and Reyes filed her Reply on November 25, 2008.\\n. Subsequent to Nautilus' filing of the instant Motion, Reyes filed a Motion For Continuance under Federal Rule of Civil Procedure 56(f). Under Rule 56(f), a court may order continuance of a motion for summary judgment to allow for discovery if the party opposed to summary judgment \\\"shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition.\\\" Fed. R.Civ.P. 56(f). Reyes submitted an affidavit from her attorney specifying that the following discovery is essential to the instant Motion: (1) what Nautilus and its agent provided to the State of Texas in order for the State of Texas to license Niclcy & Claire's, (2) whether \\\"Nautilus and its agent knew of the Texas Day Care Licensing Laws before issuing this policy and knew what their obligations of coverage are,\\\" and (3) discovery of other items related to whether Nautilus violated the Texas Surplus Lines Act (\\\"SLA\\\") by issuing a surplus lines insurance policy to Nicky & Claire's.\\nReyes raised the first two (2) factual issues in her Response to Nautilus' Motion for Summary Judgment, and the Court addresses them in the instant Opinion and Order. With regard to the third factual issue, Reyes never expressly asserts that Nautilus' alleged violation of the SLA would result in Nautilus having a duty to defend or indemnify Nicky & Claire's and Bustamante. Nevertheless, the Court considers and dismisses this argument below.\\nThe SLA requires surplus lines insurers and surplus lines agents to comply with certain requirements in order to protect the insured, since surplus lines insurers are not regulated by the State of Texas. See Tex. Ins.Code Ann. \\u00a7 981.001 (Vernon 2008). For example, a surplus lines insurer should make an effort to obtain regular insurance for the insured before issuing a surplus lines insurance policy. Tex. Ins.Code Ann. \\u00a7 981.004(a)(1) (Vernon 2008). Additionally, the surplus lines insurer must be \\\"eligible\\\" and must issue insurance policies through an authorized surplus lines agent. Tex. Ins.Code Ann. \\u00a7 981.004(a)(2). Nevertheless, a policy provided by an insurer in violation of the SLA remains enforceable by the insured. Tex. Ins.Code Ann. \\u00a7 981.005 (Vernon 2008). Therefore, even if Nautilus violated the SLA by issuing the Policy, Nautilus would still have a duty to defend or indemnify Nicky & Claire's and Bustamante for claims covered by the Policy. Thus, whether Nautilus violated the SLA is not a genuine material fact that precludes the Court from determining Nautilus' duty to defend and indemnify Nicky & Claire's and Bustamante. Accordingly, this discovery is not essential to Reyes' argument against Nautilus' Motion for Summary Judgment. See Fed.R.Civ.P. 56(f).\\n. Nautilus does not ask the Court to determine Fireman's Fund's duty to defend or indemnify Nicky & Claire's and Bustamante. Accordingly, the instant Opinion and Order addresses only Nautilus', not Fireman's Fund's, duty.\\n. For example, a contract that states certain goods must be delivered to a greenhouse on Main Street is clear on its face, but if there are two (2) greenhouses on Main Street, the contract is latently ambiguous. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520 n. 4 (Tex.1995).\\n. Accordingly, Reyes' Motion for Continuance is without merit as the discovery she seeks is not essential for the Court to decide Nautilus' Motion for Summary Judgment. See Fed.R.Civ.P. 56(f).\\n. While the Tri-State court emphasizes the difference between contracting for an amount of coverage and permitting exclusions, the court does so because, in the context of auto insurance, it believes the insured has little bargaining power over exclusions contained within those policies. Tri-State Pipe & Equip., Inc. v. S. County Mut. Ins. Co., 8 S.W.3d 394, 399-400 (Tex. Ct. Appeals-Texarkana 1999). In contrast, courts have consistently upheld auto exclusions in general liability contracts. See, e.g., Lincoln Gen. Ins. Co. v. Aisha's Learning Ctr., 468 F.3d 857, 859-60 (5th Cir.2006) (applying Texas law in case involving auto exclusion); Empire Fire and Marine Ins. Co. v. Brantley Trucking, Inc., 220 F.3d 679, 682 (5th Cir.2000) (same).\\n. The Court notes that, despite Reyes' repeated assertions that Nautilus or Fireman's Fund must have filed a Certificate of Insurance with the State of Texas representing that Nicky & Claire's was insured to meet the requirements of section 42.049, the statute does not require that an insurer file such a certificate. Rather, section 42.049 requires that license holder \\u2014 Nicky & Claire's \\u2014 \\\"file with the department a certificate or other evidence from an insurance company.\\\" Tex. Hum. Res.Code Ann. \\u00a7 42.049(b) (emphasis added).\\n. The Policy defines \\\"auto\\\" as \\\"a land motor vehicle, trailer or semi-trailer designed for travel on public roads,\\\" \\\"bodily injury\\\" as \\\"bodily injury, sickness or disease,\\\" and \\\"occurrence\\\" as \\\"an accident.\\\"\\n. Reyes does not expressly assert that Nicky & Claire's' alleged violation of Human Resources Code \\u00a7 42.049(b) would result in Nautilus' duty to defend or indemnify Nicky & Claire's. Nevertheless, since Reyes argues that discovery surrounding the issuance of the Policy and the materials provided to the Department of Family and Protective Services presents an issue of material fact, the Court notes that such an argument would be dismissed along similar grounds as Reyes' section 746.5607 argument. Any such violation would not alter the Court's eight-corners analysis.\"}"

us/3771173.json

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+"{\"id\": \"3771173\", \"name\": \"SHIELD v. McCUTCHEON et al.\", \"name_abbreviation\": \"Shield v. McCutcheon\", \"decision_date\": \"1953-03-18\", \"docket_number\": \"No. A-8403\", \"first_page\": \"41\", \"last_page\": \"43\", \"citations\": \"14 F.R.D. 41\", \"volume\": \"14\", \"reporter\": \"Federal Rules Decisions\", \"court\": \"United States District Court for the District of Alaska\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T20:09:53.068448+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SHIELD v. McCUTCHEON et al.\", \"head_matter\": \"SHIELD v. McCUTCHEON et al.\\nNo. A-8403.\\nDistrict Court, Alaska. Third Division, Anchorage.\\nMarch 18, 1953.\\nJohn E. Manders, Anchorage, Alaska, for plaintiff.\\nMcCutcheon, Nesbett & Rader, Anchorage, Alaska, for defendants.\", \"word_count\": \"1164\", \"char_count\": \"6880\", \"text\": \"DIMOND, District Judge.\\nThe plaintiff has sued for cancellation of certain shares of the capital stock of defendant, Valley Plotel Corporation, alleged to have been fraudulently issued, and for other relief. The plaintiff alleges that at the time of the issuance of the stock, the plaintiff was the absolute owner of approximately 60%, and thus more than a majority, of the issued and outstanding shares of the capital stock of the defendant corporation; and that the defendants Mc-Cutcheon, Nesbett, Hassman and Ryan and other directors of the corporation held a meeting of the Board of Directors and wrongfully and fraudulently voted the issuance of and caused to be issued to the defendants McCutcheon, Nesbett, Hassman and Ryan, 2,600 shares of the capital stock of the corporation whereby the plaintiff was deprived of the control of the corporation through ownership of a majority of its issued and outstanding stock.\\nThis suit is brought by the plaintiff in his individual capacity and not to enforce a derivative or secondary right, and is therefore not a \\\"class action\\\" under Rule 23, Fed.Rules Civ.Proc. 28 U.S.C.A. Dresdner v. Goldman Sachs Trading Corp., 1934, 240 App.Div. 242, 269 N.Y.S. 360, 363. The plaintiff's complaint is not verified as required by Section 23(b) of the Rules with respect to derivative suits. In argument upon the defendants' motion to dismiss for lack of verification, it was repeatedly asserted by counsel for the plaintiff that the suit was not derivative in any sense' and, therefore, that under the Rules with respect to individual actions no verification was or is necessary. While the immediate issue arises upon the matter of verification, the basic question is whether the plaintiff may sue for an individual wrong, and not be compelled to bring a derivative action which would be subject to the provisions of 23(b) of the Rules.\\nThis Court, after deliberation, in the case of Bowman v. Alaska Airlines, D.C., 14 F.R.D. 70 has held that as a general rule suits by minority shareholders for cancellation of stock and for other kindred relief'may not be brought by an individual stockholder for his own benefit alone, but may be asserted only as a class or derivative action for himself and other stockholders similarly situated.\\nThe only respect in which the action before us differs from the Bowman case is that in this suit the plaintiff says that he was the majority stockholder and that by a fraudulent conspiracy on the part of the defendants he was deprived of that status and hence that he has a right to bring the suit for his own individual wrong and is not compelled to assert his claim through a class action. And so we must consider whether the decision of the Court in the Bowman case ought to apply here.\\nThe following excerpts from the text of 13 Fletcher on Corporations 276, bear directly upon the subject:\\n\\\"Actions or suits which may be brought by a stockholder as an indi vidual include the following, among others:\\n*\\n\\\"8. Acts depriving a stockholder or member of rights as such, including acts depriving one of the advantage of a maj ority control.\\nsjt sjt jjc ^ 5<e\\n\\\"If the cause of action is based on unlawful acts relating solely to stock owned by plaintiff, it is an individual and not a corporate cause of action, while if it is based on acts relating to the capital stock as an entirety, or a particular class of stock, it is ordinarily a corporate cause of action and cannot be sued for by a stockholder merely as an individual. However, if the acts complained of, although relating to the stock as a whole, work an injury to rights belonging to the stockholders individually as between them and the corporation and its other stockholders, as where an unlawful increase of stock ousts the complaining stockholders from their position as controlling shareholders, the action is individual and not derivative.\\\"\\nThat statement is, of course, not without the support of judicial authority. In Witherbee v. Bowles, 1911, 201 N.Y. 427, 95 N.E. 27, 28 it was distinctly held that under similar circumstances the aggrieved plaintiff was entitled to bring a suit individually and was not restricted to a class action. In that connection, the Court of Appeals of New York, speaking through Justice His-cock, said:\\n\\\"In Stokes v. Continental Trust Co., 186 N.Y. 285, 296, 78 N.E. 1090, 1093, 12 L.R.A.,N.S., 969, simply affirming principles which had been long recognized, we referred to the rights belonging to a person by virtue of his ownership of stock in a corporation, especially mentioning the one to exercise a relative voice in the control and management of the corporation. We held that 'the power of the individual stockholder to vote in proportion to' the number of his shares is vital and cannot be cut off or curtailed by the action of all the other stockholders even with the cooperation of the directors and officers,' and determined that the right of a holder to maintain an existing proportion and relation between his stock and the entire capital stock was a property right of which he could not be deprived on an increase of stock under ordinary circumstances. In that case we gave relief to a stockholder complaining of the method employed in increasing the capital stock of a corporation which while not claimed to be with fraudulent purpose did impair his right to take his proportion thereof. Holding this in such a case, it seems very clear that a stockholder would have a right to attack and avoid a fraudulent increase of stock made for the express purpose and with the clear result of depriving him of his relative position as a stockholder.\\\"\\nThe Supreme Judicial Court of Maine in Trask v. Chase, 107 Me. 137, 77 A. 698 (1910) arrived at the same conclusion. This is a case deserving of consideration although it appears that all of the stockholders of the corporation, other than the plaintiff, were named as defendants. Not only authority but reason support that view. One who through the fraudulent action of others in a corporation is deprived of his uniquely powerful position with respect to the assets and the business of such corporation by being deprived of his control as a holder of the majority of the issued and outstanding stock, suffers a special damage and has an individual right for recovery.\\nParagraph 1 of the Motion to Dismiss, the only one argued, that \\\"the plaintiff has not complied with the Federal Rules of Civil Procedure relating to class actions\\\", is denied; and the second ground of the motion, that \\\"the complaint fails to state a claim upon which relief can be granted\\\", may be set down for hearing at the earliest convenient time.\"}"

us/3794346.json

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+"{\"id\": \"3794346\", \"name\": \"UNITED STATES of America, Appellee, v. Jeffrey D. FIELDS, Gilberto Jimenez-Hernandez, Defendants, Antonio Hernandez-Martinez, Jesus P. Campa, Defendants-Appellants\", \"name_abbreviation\": \"United States v. Fields\", \"decision_date\": \"2008-02-07\", \"docket_number\": \"Nos. 06-2257-cr(L), 06-3487-cr(CON)\", \"first_page\": \"156\", \"last_page\": \"158\", \"citations\": \"263 F. App'x 156\", \"volume\": \"263\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Second Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T16:59:59.566063+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"UNITED STATES of America, Appellee, v. Jeffrey D. FIELDS, Gilberto Jimenez-Hernandez, Defendants, Antonio Hernandez-Martinez, Jesus P. Campa, Defendants-Appellants.\", \"head_matter\": \"UNITED STATES of America, Appellee, v. Jeffrey D. FIELDS, Gilberto Jimenez-Hernandez, Defendants, Antonio Hernandez-Martinez, Jesus P. Campa, Defendants-Appellants.\\nNos. 06-2257-cr(L), 06-3487-cr(CON).\\nUnited States Court of Appeals, Second Circuit.\\nFeb. 7, 2008.\\nNicholas S. Goldin, Assistant United States Attorney, for Michael J. Garcia, United States Attorney for the Southern District of New York (Elie Honig, Diane Gujarati, of counsel), New York, N.Y., for Appellee.\\nJonathan Marks (Nelson M. Farber, on the brief), New York, N.Y., for Defendant-Appellant Hernandez-Martinez.\\nJesse M. Siegel, New York, N.Y., for Defendant-Appellant Campa.\\nPRESENT: Hon. WALKER, Hon. GUIDO CALABRESI and Hon. REENA RAGGI, Circuit Judges.\", \"word_count\": \"715\", \"char_count\": \"4523\", \"text\": \"SUMMARY ORDER\\nDefendant-Appellant Antonio Hernandez-Martinez (\\\"Hernandez\\\") was convicted in the United States District Court for the Southern District of New York (Heller-stein, J.) of conspiring to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. \\u00a7 846, and with attempting to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. \\u00a7 841(b)(1)(A). He appeals his conviction. Defendant-Appellant Jesus P. Campa pled guilty to those same charges and was sentenced to 125 months' imprisonment. Acting pro se, he appeals his judgment of conviction and sentence; his attorney has filed a motion, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), to withdraw as counsel to Campa; and the Government has moved for summary affirmance of Campa's conviction. We assume the parties' familiarity with the facts and procedural history of the case.\\nHernandez first asserts that the district court's refusal to grant a continuance, mid-trial, so that his attorney could interview a witness who was unavailable at the time because his prison cell block was under medical quarantine violated his Sixth Amendment right to compulsory process and his right to due process. The Supreme Court has held that, to establish a violation of this right, a defendant \\\"must make some plausible showing of how [the missing] testimony would have been both material and favorable to his defense.\\\" United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). Hernandez has made no such showing, as the testimony that he now claims the witness would have given did not undermine and may, in fact, have supported the Government's theory of guilt. For this reason, we conclude that the district court acted well within its discretion in denying both Hernandez's motion for a continuance and his Rule 33 motion for a new trial.\\nHernandez also contends that Judge Hellerstein improperly charged the jury as to that witness's equal availability to both sides. The point merits little discussion because, even if we were to identify error in this instruction, the judge gave a supplemental charge that was adequate to instruct the jury correctly that the witness's unavailability due to the prison quarantine arose after the Government had presented most of its case and before the defense had the opportunity to begin its own. See generally United States v. Glover, 511 F.3d 340, 345-46 (2d Cir.2008) (rejecting a challenge to an instruction that, by itself, might have constituted error, where the totality of the charge correctly instructed the jury as to the applicable law).\\nFinally, Hernandez argues that the trial judge's instruction allowing the jury to infer a relationship between himself and the witness from the fact that the witness's business card was found in his wallet was erroneous. \\\"So long as the inference is reasonable, it is the task of the jury, not the court, to choose among competing inferences.\\\" United States v. Kim, 435 F.3d 182, 184 (2d Cir.2006) (internal quotation marks omitted). The inference of a relationship between the two was reasonable, and the court properly instructed the jury that it was for them to determine whether or not to draw that inference.\\nAs to Appellant Campa, we have reviewed his attorney's Anders motion and the Government's motion for summary affirmance, and we agree that there are no non-frivolous issues that could be raised on appeal.\\nAccordingly, we AFFIRM the judgment of the district court as to Appellant Hernandez. We GRANT the motion of Jesse M. Siegel to withdraw as counsel to Appellant Campa, and we GRANT the Government's motion for summary affirmance as to Appellant Campa.\"}"

us/3821421.json

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+"{\"id\": \"3821421\", \"name\": \"UNITED STATES of America, Plaintiff, v. Lorraine HENDERSON, Defendant\", \"name_abbreviation\": \"United States v. Henderson\", \"decision_date\": \"2012-10-02\", \"docket_number\": \"Criminal No. 09-10028-DPW\", \"first_page\": \"134\", \"last_page\": \"136\", \"citations\": \"904 F. Supp. 2d 134\", \"volume\": \"904\", \"reporter\": \"Federal Supplement 2d\", \"court\": \"United States District Court for the District of Massachusetts\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T19:35:34.421595+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"UNITED STATES of America, Plaintiff, v. Lorraine HENDERSON, Defendant,\", \"head_matter\": \"UNITED STATES of America, Plaintiff, v. Lorraine HENDERSON, Defendant,\\nCriminal No. 09-10028-DPW.\\nUnited States District Court, D. Massachusetts.\\nOct. 2, 2012.\\nDiane C. Freniere, United States Attorney\\u2019s Office, Boston, MA, for Plaintiff.\\nFrancis J. Dimento, Dimento & Sullivan, Boston, MA, for Defendant.\", \"word_count\": \"712\", \"char_count\": \"4268\", \"text\": \"MEMORANDUM AND ORDER\\nDOUGLAS P. WOODLOCK, District Judge.\\nBy its \\\"Motion to Reconsider Grant of Defendant's Motion for a New Trial\\\", the government has invited me to treat as acceptable jury instructions that I have concluded constituted a miscarriage of justice. United States v. Henderson, 857 F.Supp.2d 191, 210-12 (D.Mass.2012). The government's invitation comes in the form of an argument that if the instructions were error, they were \\\"plain error\\\" governed by Fed.R.Crim.P. 30(d) and 52(b).\\nI have kept the motion under advisement while a petition for a writ of certiorari was pending in DelRio-Mocci v. Connolly Properties, 672 F.3d 241 (3rd Cir.2012), the case upon which I relied in granting the new trial. Yesterday, the Supreme Court denied the writ. Bolmer v. Connolly Properties, Inc., \\u2014 U.S. -, 133 S.Ct. 167, 184 L.Ed.2d 35 (2012). I now will deny the motion for reconsideration.\\nIn the Memorandum and Order granting a New Trial under Fed.R.Crim.P. 33, I explained in some detail my view that this \\\"meretricious prosecution of a factitious felony,\\\" Henderson, at 213, is properly evaluated by the fact finder against the construction of the statute of conviction provided by the Third Circuit in DelRio-Mocci. Under DelRio-Mocci, the instructions in this case did not properly define the criminal offense the government undertook to prove. While I concluded that there was sufficient evidence, if just barely, by which the government could seek to persuade a different and properly instructed jury of the defendant's guilt at a new trial, the jury verdict rendered as a result of the instructions I gave at the initial trial could not stand.\\nIn making its invitation that I acquiesce in plain error, the Government systematically ignores the plain text of Rule 30(d) and the sources of Rule 52(b) which are together addressed to circumstances where appellate review should be precluded. The motion consequently fails to recognize the separate and distinct responsibilities and perspectives of trial and appellate judges. From the vantage point of the trial judge, I am firmly of the view that for a conviction to stand in this matter on that basis would be an error of the most fundamental sort. Whether that error is one that might be treated as \\\"plain\\\" and thus be precluded on appellate review is not part of the calculus for my decisionmaking in these circumstances.\\nIn one of the most insightful set of comments in the history of judicial confirmation hearings, then First Circuit Judge David H. Souter told the Senate Judiciary Committee of the lessons he had learned serving both as a trial judge and an appellate judge. The first lesson was that \\\"whatever court we are in . whether in the trial court or an appellate court, at the end of our task some human being is going to be changed in some way by what we do . as appellate judges, as far removed from the trial arena as it is possible to be.\\\" The Nomination of David H. Souter to be Associate Justice of the Supreme Court of the United States: Hearings Before the Comm, on the Judiciary, 101st Cong. 52 (1990) (Statement of Hon. David H. Souter, U.S. Circuit Judge for the First Circuit). \\\"The second lesson that I learned in that time\\\" Justice Souter explained, \\\"is that if, indeed, we are going to be trial judges, whose rulings will affect the lives of other people and who are going to change their lives by what we do, we had better use every power of our minds and our hearts and our beings to get those rulings right.\\\" Id.\\nFor these reasons, I decline the government's invitation to be satisfied with the trial of this case even if the' instructions I gave inadequately described what the government was required to prove to establish the defendant's guilt; accordingly, I DENY the government's motion [# 102] to withdraw my order for a new trial.\\nThe new trial, should the government choose to continue to pursue this matter, is set for December 10, 2012 in Courtroom 1.\"}"

us/3843321.json

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+"{\"id\": \"3843321\", \"name\": \"Jasmineann VEGA, Plaintiff, v. SACRED HEART UNIVERSITY, INC., Defendant\", \"name_abbreviation\": \"Vega v. Sacred Heart University, Inc.\", \"decision_date\": \"2012-04-10\", \"docket_number\": \"Civil Action No. 3:10-CV-1870 (JCH)\", \"first_page\": \"81\", \"last_page\": \"86\", \"citations\": \"871 F. Supp. 2d 81\", \"volume\": \"871\", \"reporter\": \"Federal Supplement 2d\", \"court\": \"United States District Court for the District of Connecticut\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-11T01:30:31.426842+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jasmineann VEGA, Plaintiff, v. SACRED HEART UNIVERSITY, INC., Defendant.\", \"head_matter\": \"Jasmineann VEGA, Plaintiff, v. SACRED HEART UNIVERSITY, INC., Defendant.\\nCivil Action No. 3:10-CV-1870 (JCH).\\nUnited States District Court, D. Connecticut.\\nApril 10, 2012.\\nJohn R. Williams, New Haven, CT, for Plaintiff.\\nJames M. Sconzo, Jonathan C. Sterling, Jorden Burt, Simsbury, CT, for Defendant.\", \"word_count\": \"2707\", \"char_count\": \"16154\", \"text\": \"RULING RE: MOTION FOR SUMMARY JUDGMENT [Doc. No. 37]\\nJANET C. HALL, District Judge.\\nI. INTRODUCTION\\nPlaintiff, Jasmineann Vega (\\\"Vega\\\"), brings this action against defendant, Sacred Heart University, Inc. (\\\"SHU\\\"), for damages resulting from SHU's failure to respond to an act of hazing, both on and off campus, and the school's failure to prevent subsequent harassment of Vega. Vega alleges that SHU negligently inflicted emotional distress by failing to abide by an alleged promise contained within SHU's student handbook.\\nSHU has filed a Motion for Summary Judgment, arguing that Vega's claim is one of educational malpractice, a cause of action that is not recognized in Connecticut courts. Additionally, SHU argues that Vega's negligent infliction of emotional distress claim fails as a matter of law. SHU states that its response to Vega's report of hazing was reasonable, that it had no notice that there were any unsafe conditions on its campus, and that it was not foreseeable that Vega would suffer severe emotional distress as a result of SHU's actions or inactions following the report of the hazing incident.\\n11. FACTUAL BACKGROUND\\nIn the fall of 2009, Vega participated in \\\"Go Greek,\\\" a week-long process during which she met the sisters of Delta Phi Kappa (the \\\"Sorority\\\"). On October 2, 2009, a Sorority sister picked up Vega and brought her to a house in Bridgeport where she was told to go to the basement of the house with the other Sorority pledges. There, Vega, as well as the other Sorority pledges, were required to maintain physical poses and perform exercises. Vega reported the hazing incident to SHU's Public Safety Department on October 5, 2009. On October 7, 2009, SHU's Dean of Students, Larry Wielk, informed the Sorority sisters that they were suspended from campus, which included all academic and non-academic activities, effective immediately. In addition, the Sorority sisters were informed that they were not to have any contact with any of the Sorority pledges, including Vega. The no contact order was never removed. Effective October 14, 2009, the sisters' suspension was reduced to a \\\"non-academic suspension,\\\" which allowed them to return to classes. On October 26, 2009, after the school conducted its hearings, eleven members of the Sorority received additional discipline. The Bridgeport Police Department also investigated the matter, but no arrests were made.\\nVega claims that, on or around October 12, 2009, individuals posted comments on the Facebook page of Ms. Segalla, a Sorority sister, regarding SHU's investigation into the hazing incident. Vega also received phone calls to her cell phone from two nonstudents that she perceived as being threatening.\\nVega alleges that on October 14, 2009, while walking to the Public Safety Office to meet her mother, three Sorority sisters followed her. One of the Sorority sisters tugged on her hood and said, \\\"We got her.\\\" Vega claims that the Sorority sisters attempted to \\\"jump her\\\" outside the Public Safety Office, but that when they noticed Vega's mother, the Sorority sisters ran away. In contrast, the Sorority sisters state that a news crew had been at the Sorority sisters' off-campus home and that they were on their way to the Public Safety Office to report the issue when they saw Vega and her mother. As a result, they went to speak with Dean Wielk rather than report the issue to the Public Safety Office. The Sorority sisters claim that they did not follow or harass Vega. Dean Wielk was unable to conclude that the Sorority sisters intentionally harassed Vega or violated the no contact order while on campus.\\nOn November 16, 2009, Vega visited her dormitory room with her mother, father, sister, and uncle to pick up books and drop off a pair of shoes and a check for the cable bill. Without Vega's knowledge, Vega's roommates invited Ms. Segalla, a Sorority sister, to their room. Upon entering her room, Vega noticed Ms. Segalla and immediately had an anxiety attack.\\nIII. STANDARD OF REVIEW\\nA motion for summary judgment \\\"may properly be granted . only where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant judgment for the moving party as a matter of law.\\\" In re Dana Corp., 574 F.3d 129, 151 (2d Cir.2009). Thus, the role of a district court in considering such a motion \\\"is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists.\\\" Id. In making this determination, the trial court must resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. See Fed.R.Civ.P. 56(c); Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 274 (2d Cir.2009).\\n\\\"[T]he moving party bears the burden of showing that he or she is entitled to summary judgment.\\\" United Transp. Union v. Nat'l R.R. Passenger Corp., 588 F.3d 805, 809 (2d Cir.2009). Once the moving party has satisfied that burden, in order to defeat the motion, \\\"the party opposing summary judgment . must set forth 'specific facts' demonstrating that there is 'a genuine issue for trial.' \\\" Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009) (quoting Fed.R.Civ.P. 56(e)). In determining whether a triable issue of fact exists, the court may only rely on admissible evidence. See ABB Indus. Sys., Inc. v. Prime Tech., Inc., 120 F.3d 351, 357 (2d Cir.1997). Where the opposing party relies on affidavits or declarations, the affidavit or declaration \\\"must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on matters stated.\\\" Fed. R.Civ.P. 56(c)(4). \\\"A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the nonmovant's favor.\\\" Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir.2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir.2007)); see also Havey v. Homebound Mortg., Inc., 547 F.3d 158, 163 (2d Cir.2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (stating that a non- moving party must point to more than a mere \\\"scintilla\\\" of evidence in order to defeat a motion for summary judgment).\\nIV. DISCUSSION\\nVega filed suit against SHU for negligent infliction of emotional distress. Plaintiffs Brief in Opposition to Motion for Summary Judgment (Doc No. 42) (hereinafter \\\"Pl.'s Brief in Opp.\\\") at 3. After Vega was subjected to a hazing incident by the Sorority sisters, she reported it through formal complaints to SHU. Id. at 1. Vega alleges that SHU knew that Vega was in fear of retaliation for reporting the hazing incident, as evidenced by SHU issuing a no contact order. Id. at 3. Despite issuing this order, Vega alleges that SHU did not enforce the no contact order, thus failing to provide her security. Id. As a result, Vega suffered harassment while walking on campus. Id.\\nSHU has filed a Motion for Summary Judgment arguing that Vega's claim for negligent infliction of emotional distress is truly one of educational malpractice, a cause of action that is not recognized in Connecticut. Defendant's Memorandum in Support of Defendant's Motion for Summary Judgment (Doc. No. 37-1) (hereinafter \\\"Defs Mem. in Supp.\\\") at 11. Additionally, SHU argues that, even if the court finds Vega's claim to be one for negligent infliction of emotional distress, the claim fails as a matter of law. Id.\\nA. Educational Malpractice\\nSHU argues that, although Vega claims an action for negligent infliction of emotional distress, her true claim is one of educational malpractice. Defs Mem. in Supp. at 11. SHU argues that Vega cannot challenge SHU's academic decisions because, according to Connecticut Supreme Court precedent, Connecticut does not recognize a claim of educational malpractice. Id.\\nThis court addressed SHU's characterization of Vega's claim as one for educational malpractice in its Ruling on SHU's Motion to Dismiss and rejected that characterization. See Ruling Re: Defendant's Motion to Dismiss (Doc No. 27) (hereinafter \\\"Motion to Dismiss\\\") at 3. The court adheres to its previous rejection of the educational malpractice claim with regard to SHU's Motion for Summary Judgment. Vega's claim is one of negligent infliction of emotional distress. Motion to Dismiss at 3.\\nB. Negligent Infliction of Emotional Distress\\nSHU argues that Vega's negligent infliction of emotional distress claim fails as a matter of law. Def s Mem. in Supp. at 17. It argues that Vega cannot come forward with evidence upon which a reasonable jury could find the existence of a duty that was breached, nor did Vega provide evidence that satisfies the elements of negligent infliction of emotional distress. Id. at 17-19.\\n1. Duty\\nSHU argues that Vega does not allege the existence of a duty that was breached. Id. at 18. The court recognizes that \\\"[t]he existence of a duty of care is a prerequisite to a finding of negligence.\\\" Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 614, 783 A.2d 462 (2001). However, the court has addressed the duty element in its Motion to Dismiss. Vega has sufficient evidence for a jury to find that SHU owed her a duty of care under either the affirmative conduct doctrine or the premises liability doctrine. Vega has come forward with evidence that SHU undertook to protect her from foreseeable attacks by third parties by way of its affirmative avowals of its anti-harassment and anti-hazing policies. Pl.'s Brief in Opp. at 2-3; Vega Dep. (Doc No. 37-4) at 47-51, 66, 160. Given a duty, though, it is up to the jury to decide what SHU did to act on their duty, and whether it was reasonable.\\n2. Negligent Infliction of Emotional Distress\\nSHU argues that its response to Vega's hazing complaint was reasonable and that the school was reasonably safe for Vega. Defs Mem. in Supp. at 19. SHU supports its claim by evidencing the fact that the Sorority sisters, as well as the Sorority itself, received serious discipline, including a suspension from SHU and a no contact order effective to protect Vega. Id. at 19-20. SHU further argues that Vega cannot show that SHU's conduct was the cause of her distress. Id. at 26.\\nIn order to prevail on a negligent infliction of emotional distress claim, the following elements must be proven; \\\"(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiffs distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiffs distress.\\\" Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).\\nThe question on a motion for summary judgment is whether there is a genuine dispute as to a material fact. SHU alleges that the school was reasonably safe for Vega. Def s Mem. in Supp. at 1, 20-23. Vega states in her Deposition, however, that Dean Wielk told her that she could not commute to school in order to take her classes, but that she was required to live on campus as she had to pay for her dorm and meal plan. Vega Dep. (Doc No. 37-4) at 128. Furthermore, although Dean Wielk advised Vega that it was safe to return to campus, Vega disputes that the campus was safe. Id. at 160. She was told that the Sorority sisters were all suspended from campus, but on October 14, 2009, three Sorority sisters followed her on campus and, according to Vega, attempted to jump her. Id. at 158. A month later on November 16, 2009, Vega suffered an anxiety attack upon seeing a sorority sister in her dorm room. Id. at 174-76.\\nVega has also presented evidence in her Deposition that the other three elements of her negligent infliction of emotional distress claim are satisfied. For example, Vega states that her distress was foreseeable because she expressed her fear of retaliation by the sisters to Dean Wielk, id. at 127, yet she did not receive any updates from administration regarding the discipline of the Sorority sisters, id. at 120. Vega states that her emotional distress was severe because on November 16, 2009, she experienced an anxiety attack upon seeing one of the Sorority sisters in her dorm room, at which time 911 and campus security were called. Id. at 174-75. Lastly, Vega argues that it was SHU's conduct that caused her distress because Dean Wielk knew she feared retaliation, and yet he told her that she was safe on SHU's campus. Id. at 160.\\nV. CONCLUSION\\nFor the foregoing reasons, the defendant's Motion for Summary Judgment [Doc. No. 37] is DENIED.\\nSO ORDERED.\\n. In connection with a motion for summary judgment, the court relies on the undisputed facts in the parties' Local Rule 56(a) Statements. If a fact is disputed, the court views the evidence in the light most favorable to the plaintiff.\\n. Vega also plead that SHU violated the Connecticut Unfair Trade Practices Act by failing to abide by an alleged promise contained within SHU's student handbook. Compl. \\u00b6 13. The court dismissed this claim in its Ruling on the Motion to Dismiss. Ruling Re: Defendant's Motion to Dismiss (Doc No. 27) at 9-11.\\n. Vega asserts that she was also physically assaulted while walking on campus that day. Pl.'s Brief in Opp. at 3. However, in her Local Rule 56(a)(2) statement, she cites no evidence in the record to support that assertion.\\n. In Doe v. Yale Univ., \\\"the court reasoned that the distinction between an educational malpractice claim and a cognizable negligence claim occurring in a[n] educational setting, lies in the duty alleged to have been breached. If the duty alleged to have been breached is the duty to educate effectively, the claim is not cognizable. If the duty alleged to have been breached is the common law duty not to cause physical injury by negligent conduct, such a claim is, of course, cognizable.' \\\" Johnson v. Schmitz, 119 F.Supp.2d 90, 99 (D.Conn.2000) (citing Doe v. Yale Univ., 252 Conn. 641, 663, 748 A.2d 834 (2000)). In Johnson, the duty alleged to be breached was the duty to establish and enforce reasonable rules, and the court held that it was not precluded by Doe from hearing the claim. Id. The present case is more analogous to Johnson than Doe.\\n.The court notes, however, that Gupta's bar on educational malpractice does not apply when the result is physical harm \\\"because it falls within the traditionally recognized duty not to cause physical harm by negligent con duct.\\\" Doe, 252 Conn. at 663, 748 A.2d 834. An anxiety attack is a mental, rather than physical harm. See Bellotto v. County of Orange, 248 Fed.Appx. 232, 237 (2d Cir.2007); see also Martinsky v. City of Bridgeport, 814 F.Supp.2d 130, 144 (D.Conn.2011). Emotional distress does not itself involve physical injury or physical harm, unless there is a physical manifestation of the emotional distress. See Allstate Ins. Co. v. Burnard, No. 3:08CV603, 2010 WL 1332002, at *5 (D.Conn. Mar. 31, 2010); see also Bellotto, 248 Fed.Appx. at 237.\\n. On a motion for summary judgment, it is plaintiff's duty to come forward with evidence showing material issues of fact. Fed.R.Civ.P. 56(a). In doing so, plaintiff is required to set forth her facts in a 56(a)(2) statement, with specific citation to the record. L.R. 56(a). Plaintiff failed in large measure to do so in this case. While summary judgment could have been granted because of this failure, the court has searched the plaintiff's deposition and identified evidence therein that creates a material issue of fact.\\nCounsel is advised that failure to satisfy Local Rule 56(a) in the future will result in the grant of summary judgment.\\n. According to the parties' Local Rule 56(a) Statement, the Sorority sisters' suspension was reduced to a \\\"non-academic\\\" suspension on October 14, 2009. The no contact order was never removed.\"}"

us/3860339.json

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+"{\"id\": \"3860339\", \"name\": \"UNITED STATES of America, Plaintiff-Appellee, v. Edward J. PEREZ, Defendant-Appellant\", \"name_abbreviation\": \"United States v. Perez\", \"decision_date\": \"2009-12-30\", \"docket_number\": \"No. 09-10096\", \"first_page\": \"881\", \"last_page\": \"883\", \"citations\": \"360 F. App'x 881\", \"volume\": \"360\", \"reporter\": \"West's Federal Appendix\", \"court\": \"United States Court of Appeals for the Ninth Circuit\", \"jurisdiction\": \"United States\", \"last_updated\": \"2021-08-10T23:34:05.502948+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.\", \"parties\": \"UNITED STATES of America, Plaintiff\\u2014Appellee, v. Edward J. PEREZ, Defendant\\u2014Appellant.\", \"head_matter\": \"UNITED STATES of America, Plaintiff\\u2014Appellee, v. Edward J. PEREZ, Defendant\\u2014Appellant.\\nNo. 09-10096.\\nUnited States Court of Appeals, Ninth Circuit.\\nArgued and Submitted Dec. 10, 2009.\\nFiled Dec. 30, 2009.\\nNicholas D. Dickinson, Esquire, U.S. Department of Justice, Washington, DC, Robert Lawrence Ellman, Esquire, Assis tant U.S., Office of the U.S. Attorney, Las Vegas, NV, for Plaintiff-Appellee.\\nJason F. Carr, Rene Valladares, Esquires, Assistant Federal Public Defenders, Federal Public Defender\\u2019s Office, Las Vegas, NV, for Defendant-Appellant.\\nBefore: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.\", \"word_count\": \"729\", \"char_count\": \"4520\", \"text\": \"MEMORANDUM\\nEdward J. Perez appeals his conviction for felony possession of a firearm in violation of 18 U.S.C. \\u00a7 922(g)(1), claiming the trial court deprived him of his right to a fair trial and due process when it admitted testimony describing his flight from the police and resistance to arrest. We affirm. Because the parties are familiar with the facts and procedural history, we will not recount them here.\\nPerez's claims, as his sole issue raised on appeal, that the testimony detailing his flight from the police and resistance to arrest was so prejudicial that it should have been excluded under Federal Rule of Evidence 403, and that the admission of such evidence constitutes reversible error. Rule 403 allows for the exclusion of relevant evidence \\\"if its probative value is substantially outweighed by the danger of unfair prejudice.\\\" Fed.R.Evid. 403. This panel reviews the district court's decision to admit evidence under Rule 403 for abuse of discretion. United States v. Curtin, 489 F.3d 935, 943 (9th Cir.2007) (en banc). The district court need not recite the Rule 403 test when deciding whether to admit evidence. United States v. Daly, 974 F.2d 1215, 1217 (9th Cir.1992).\\nHowever, when the appealing party fails to object to the admission of such evidence at trial, this panel reviews for plain error. United States v. Thompson, 82 F.3d 849, 854-55 (9th Cir.1996). Under the plain error standard of review, this panel will not grant relief unless there has been (1) error, (2) that was plain, (3) that affected substantial rights, and (4) that seriously affects the fairness, integrity or public reputation of the judicial proceeding. See United States v. Recio, 371 F.3d 1093, 1100 (9th Cir.2004). A judgment affects substantial rights when it \\\" 'affect[s] the outcome of the District Court proceedings.' \\\" United States v. Pino-Noriega, 189 F.3d 1089, 1097 (9th Cir.1999) (quoting United States v. Lussier, 128 F.3d 1312, 1317 (9th Cir.1997)). Both parties agree that Perez did not object to the admission of this evidence at trial.\\nPerez's argument on appeal fails because (1) the district court did not err\\u2014 and, if it did, certainly any error was far from plain \\u2014 in its admission of the testimony; and (2) even if there were plain error, it did not affect Perez's substantial rights.\\n1. If Perez wanted to object to the use of his flight as evidence of guilt, he should have objected to any instructions that may have allowed the jury to infer guilt from flight. He has raised no such argument on appeal. Perez instead objects to admission of the evidence of flight qua admission. But it would have been difficult if not impossible for the jury to understand how the police officers discovered that Perez was carrying a firearm without narrating the events that led to that discovery. For that reason, we do not think the district court abused its discretion in concluding that the probative value of the officers' testimony outweighed any prejudice that flowed solely from the testimony itself.\\n2. Nevertheless, even had such an error occurred, it would not have affected Perez's substantial rights, because the admission of the evidence did not affect the outcome of the trial. The evidence of Perez's guilt was overwhelming. Perez stipulated that he was a convicted felon and that the gun traveled in interstate commerce. The recovered gun magazine had his print on it. Even absent the contested testimony, the government offered detailed and credible testimony from two officers, whose testimony was consistent in describing the events. Both of these officers testified that they witnessed Perez reach in to his waistband and pull out a gun. In light of such testimony, evidence, and stipulations, we cannot find plain error.\\nTherefore, the conviction is\\nAFFIRMED.\\nThis disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.\"}"