Dataset Preview
Viewer
The full dataset viewer is not available (click to read why). Only showing a preview of the rows.
Job manager crashed while running this job (missing heartbeats).
Error code:   JobManagerCrashedError

Need help to make the dataset viewer work? Open a discussion for direct support.

id
int32
judges
string
date_filed
unknown
date_filed_is_approximate
bool
slug
string
case_name_short
string
case_name
string
case_name_full
string
attorneys
string
nature_of_suit
string
posture
string
syllabus
string
headnotes
string
summary
string
disposition
string
history
string
other_dates
string
cross_reference
string
correction
string
citation_count
int32
precedential_status
string
arguments
string
headmatter
string
citations
sequence
opinions
list
court_short_name
string
court_full_name
string
court_type
string
court_jurisdiction
string
2,636,981
Chapel, Johnson, Lile, Lumpkin, Strubhar
"2002-04-11"
false
state-v-howerton
Howerton
State v. Howerton
The STATE of Oklahoma, Appellant, v. Frankie HOWERTON, Appellee
James E. Wallace, Grove, OK, Attorney for Defendant at trial., Kathy Lungren Baker, Assistant District Attorney, Delaware County, Jay, OK, Attorney for the State at trial and on appeal., James E. Wallace, Grove, OK, Representing the Trial Court on appeal.
null
null
null
null
null
null
null
null
null
null
30
Published
null
<citation id="b186-7"> 2002 OK CR 17 </citation><parties id="Azv"> The STATE of Oklahoma, Appellant, v. Frankie HOWERTON, Appellee. </parties><docketnumber id="APjg"> No. SR-2001-242. </docketnumber><br><court id="b186-9"> Court of Criminal Appeals of Oklahoma. </court><decisiondate id="Ayd"> April 11, 2002. </decisiondate><br><attorneys id="b187-15"> <span citation-index="1" class="star-pagination" label="155"> *155 </span> James E. Wallace, Grove, OK, Attorney for Defendant at trial. </attorneys><br><attorneys id="b187-16"> Kathy Lungren Baker, Assistant District Attorney, Delaware County, Jay, OK, Attorney for the State at trial and on appeal. </attorneys><br><attorneys id="b187-17"> James E. Wallace, Grove, OK, Representing the Trial Court on appeal. </attorneys>
[ "2002 OK CR 17", "46 P.3d 154" ]
[ { "author_str": "Lile", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5419, "opinion_text": "\n46 P.3d 154 (2002)\n2002 OK CR 17\nThe STATE of Oklahoma, Appellant,\nv.\nFrankie HOWERTON, Appellee.\nNo. SR-2001-242.\nCourt of Criminal Appeals of Oklahoma.\nApril 11, 2002.\n*155 James E. Wallace, Grove, OK, Attorney for Defendant at trial.\nKathy Lungren Baker, Assistant District Attorney, Delaware County, Jay, OK, Attorney for the State at trial and on appeal.\nJames E. Wallace, Grove, OK, Representing the Trial Court on appeal.\n\nOPINION\nLILE, J.:\n¶ 1 Frankie Howerton was charged with one count of Owning or Operating a Chop Shop, 63 O.S.Supp.1998, § 4253A, and five counts of Knowingly Concealing Stolen Property, 21 O.S.1991, § 1713, in the District Court of Delaware County, Case No. CF-98-301. Howerton filed a motion to suppress the evidence alleging, generally, that the search of the premises was in violation of the Fourth Amendment to the United States Constitution.\n¶ 2 The Honorable Robert G. Haney, District Judge, ruled that Title 63 O.S.Supp. 1998, § 4209.8 is unconstitutional because its administrative inspection provision violates the 4th Amendment rule against unreasonable searches and seizures. The evidence discovered during the inspection, as well as evidence recovered pursuant to a follow-up search warrant, was suppressed. Subsequently, the Trial Court granted a motion to quash the Information because the State, without the suppressed evidence, had insufficient evidence to proceed.\n¶ 3 The State, taking exception to the Trial Court's ruling, announced its intent to appeal the ruling of unconstitutionality pursuant to 22 O.S.1991, §§ 1053 &amp; 1053.1.\n¶ 4 The State presented the following issue to this Court for determination:\nWhether 63 O.S.Supp.1998, § 4209.8, violates the provision against unreasonable searches and seizures found in the 4th *156 Amendment to the United States Constitution.[1]\n¶ 5 We find that Title 63 O.S.Supp.1998, § 4209.8, which was initially enacted in 1997, does not violate constitutional prohibitions against unreasonable searches and seizures.\n¶ 6 Lake Patrolman Randy Bland, along with two Grand River Dam Authority lake patrolmen, went to Frankie's Marine to conduct an administrative inspection. The visit was prompted by discrepancies on some title applications that Frankie Howerton submitted to the Oklahoma Tax Commission. Howerton was not at the business when Bland arrived, so he waited for the owner to return.\n¶ 7 When Howerton arrived, Bland told him why they were there. Howerton stated, \"Well, I was wondering when you guys were going to show up.\" Howerton said that he was buying motors from out of state and that the paperwork he was getting with the motors was off one or two numbers, so he was changing the paperwork to match the serial numbers on the motors and then sending the paperwork in with the title applications.\n¶ 8 Bland asked if he could look around and Howerton said \"sure.\" Howerton took Bland to a room containing about 75 outboard motors. Howerton showed Bland a few of the motors that he had trouble getting registered. One of these motors had the serial number removed.\n¶ 9 They then went to another building where there were about 200 outboard motors and two or three boats. Two other officers arrived sometime during the inspection. One of the motors had the cables and wires from a boat still attached, and it appeared that the motor had never been in the water. There was also a bass boat in the building that Howerton said he was storing for someone; however, Howerton could not provide the name of the person. A check of the serial number of that boat indicated that it was stolen. At this point the administrative inspection was ceased and a search warrant was obtained.\n¶ 10 Title 63 O.S.Supp.1998, § 4209.8, relates to boats and related equipment and provides that,\nAny peace officer of the State of Oklahoma may inspect any vessel, motor, trailer, or related equipment in any public garage or repair shop or in any place where such vessel, motor, trailer or related equipment is being held for sale or wrecking, for the purpose of locating stolen vessels, motors, trailers, or related equipment and investigating the title and registration of those items.\n¶ 11 The Trial Court relied on the provisions of New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987), as it relates to administrative searches and ruled that the statute did not limit the discretion of officials as to when they could search; therefore, the statute was unconstitutional.\n¶ 12 The Burger case set forth specific criteria to be evaluated in determining the constitutionality of an administrative inspection (search). The Burger case also establishes that, \"An expectation of privacy in commercial premises ... is different from, and indeed less than, a similar expectation in an individual's home.\" Burger, 482 U.S. at 700, 107 S.Ct. at 2642. See also Donovan v. Dewey, 452 U.S. 594, 598-99, 101 S. Ct. 2534, 2538, 69 L. Ed. 2d 262 (1981) (The greater latitude to conduct warrantless inspections of commercial property reflects the significantly different expectation of privacy in commercial property compared to the sanctity accorded an individual's home). Moreover, \"[t]his expectation is particularly attenuated *157 in commercial property employed in `closely regulated' industries.\" Burger, 482 U.S. at 700, 107 S.Ct. at 2642.\n¶ 13 The Burger case establishes that, to be reasonable, warrantless inspections of pervasively regulated businesses must meet a three-part test:\nFirst, there must be a \"substantial\" government interest that informs the regulatory scheme pursuant to which the inspection is made. . . .\nSecond, the warrantless inspections must be \"necessary to further the regulatory scheme.\" . . .\nFinally, \"the statute's inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.\" In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. To perform this first function, the statute must be \"sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.\" In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be \"carefully limited in time, place and scope.\"\nBurger, 482 U.S. at 702-03, 107 S.Ct. at 2644 (citations omitted).[2]\n¶ 14 Our search of the statutes reveals that public garages, repair shops and places where vessels, motors, trailers, or related equipment are held for sale or wrecking are closely regulated businesses.[3] The regulations cover dealers of both new and used vessels and motors. This close regulation promotes a substantial government interest in protecting consumers from fraudulent vessel and motor dealers. The statute in question specifically addresses the significant problem of vessel and motor theft in Oklahoma and the use of seemingly legitimate businesses to hide the transportation, trade and trafficking in stolen vessels and motors.\n¶ 15 It is quite rational for the State to believe that regulations aimed at preventing vessel and boat dealers from becoming marketing venues for stolen vessels and motors will logically help reduce theft. It is also rational to find that in order for such regulations to be effective, warrantless inspections are necessary. See Horner, 836 P.2d at 682. Thus the requirements of \"substantial\" governmental interest and \"necessity\" of administrative inspections \"to further the regulatory scheme\" are satisfied.\n¶ 16 Finally we must determine whether this statute in particular provides, in terms of certainty and regularity of its application, a constitutionally adequate substitute for a warrant as is required by Burger.\nStatutes are presumed constitutional; and, if possible, this Court has a duty to construe statutes in a manner which does not run afoul of the constitution. State v. Hunter, 787 P.2d 864, 865 (Okl.Cr.1990). It also has a duty to liberally construe statutes \"with a view to effect their objects and to promote justice.\" 25 O.S.1991, § 29. With those dictates in mind, we shall re-examine the statute to determine if a constitutionally sound interpretation can be found.\nGonseth v. State, 1994 OK CR 9, ¶ 8, 871 P.2d 51, 54.\nA strong presumption exists in favor of legislative enactments and the constitutionality of a statute will be upheld unless it is \"clearly, palpably, and plainly inconsistent with fundamental law. [citation omitted]\" *158 Rivas v. Parkland Manor, 2000 OK 68, ¶ 8, 12 P.3d 452, 456.\n¶ 17 This statute informs the owner of an establishment where vessels, motors, or trailers are being held for sale or wrecking that the inspection is limited in scope and place to vessels, motors, trailers or related equipment held at the place of business. This statute also limits inspection to times where any such vessel, motor trailer or related equipment is being held for sale or wrecking. We interpret this to mean during reasonable business hours on business days. The inspection made in this case occurred during regular business hours and was constitutionally conducted in this case.\n¶ 18 We have held:\nThe traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court. [citation omitted]\nWilkins v. State, 1999 OK CR 27, ¶ 6, 985 P.2d 184, 185. We said in State v. Johnson, 1992 OK CR 72, ¶ 3, 877 P.2d 1136, 1139:\nIt is a fundamental principle of constitutional adjudication that \"a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.\" Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S. Ct. 2908, 2915, 37 L. Ed. 2d 830, 839 (1973). A statute is presumed to be constitutional and the person alleging its unconstitutionality has the burden of proving same beyond a reasonable doubt. Nunley v. State, 660 P.2d 1052, 1056 (Okl.Cr.1983); S.A.H. v. State, 753 P.2d 381, 383 (Okl.Cr. 1988). Appellees have failed to carry that burden. [footnote omitted]\n¶ 19 Since Howerton's business was searched at a reasonable time, during business hours, he does not have standing to argue that the statute should be held facially void because other persons could conceivably be searched at an unreasonable time, outside of business hours.\n¶ 20 We find that this statute, as construed by us to be limited to business hours, complies with the 4th Amendment's prohibition of unreasonable searches and seizures. Therefore, we reverse the trial court and remand this case for further proceedings.\nDECLARATION OF UNCONSTITUTIONALITY OF STATUTE REVERSED.\nLUMPKIN, P.J., JOHNSON, V.P.J., CHAPEL, J., and STRUBHAR, J., concur.\nNOTES\n[1] On July 16, 2001, this Court ordered that, despite the fact that the Petition in Error was not timely filed, the portion of the State's appeal brought pursuant to 22 O.S.1991, § 1053.1 (providing for automatic appeals in matters where a district court has determined an act of the State Legislature to be unconstitutional) would be heard by this Court.\n\nThe language of Section 1053.1 specifically makes the appeal automatic. We find that automatic indicates that no action is necessary for the judgment to be on appeal to this Court. Thus, while we urge compliance with our Court Rules, the language of Section 1053.1 prevents us from not hearing an appeal when a District Court has declared a statute unconstitutional.\nState v. Pratt, 1991 OK CR 95, ¶ 4, 816 P.2d 1149, 1151.\nWe shall not answer the State's second issue involving the validity of consent to search, as the State's Petition in Error was not timely filed.\n[2] In Horner v. State, 1992 OK CR 46, ¶ 13, 836 P.2d 679, 682, this Court applied the Burger criteria and held that 47 O.S.Supp.1988, § 591.6, was constitutional as it provided for an administrative search of a closely regulated business, an automobile salvage yard.\n[3] Vessel and motor dealers must be licensed and they must comply with certain reporting provisions regarding the transfer of vessels or motors. 63 O.S.Supp.1993, § 4033. A vessel and motor dealer may have his license revoked if certain regulations are not followed. 63 O.S.Supp.1993, § 4041.\n\n", "ocr": false, "opinion_id": 2636981 } ]
Court of Criminal Appeals of Oklahoma
Court of Criminal Appeals of Oklahoma
SA
Oklahoma, OK
1,742,237
Longstaff
"1996-05-15"
false
bruce-v-ici-americas-inc
Bruce
Bruce v. ICI Americas, Inc.
null
null
null
null
null
null
null
null
null
null
null
null
6
Published
null
null
[ "933 F. Supp. 781" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 1962, "opinion_text": "\n933 F. Supp. 781 (1996)\nDavid E. BRUCE, Trustee of the Keith E. Bruce Revocable Trust; David E. Bruce, Trustee of the Mary Kay Bruce Revocable Trust; David E. Bruce, Husband and Wife, Plaintiffs,\nv.\nICI AMERICAS, INC., n/k/a Zeneca Inc., A Delaware Corporation, Defendant.\nCivil No. 1-94-CV-10042.\nUnited States District Court, S.D. Iowa, Western Division.\nMay 15, 1996.\n*782 *783 *784 John Billings Boeye, Stamets Law Office, Red Oak, Iowa, for Plaintiffs.\nK.J. Walker, Des Moines, Iowa, John P. Mandler, Faegre &amp; Benson Professional, Limited Liability Partnership, Minneapolis, MN, for Zeneca, Inc.\n\nORDER\nLONGSTAFF, District Judge.\nThe Court has before it Defendant ICI Americas Inc., n/k/a Zeneca Inc.'s (\"Zeneca\") Motion for Summary Judgment filed December 18, 1995, regarding the allegations contained in Plaintiffs' Petition.[1] Plaintiffs resisted this motion on April 2, 1996 and Defendant filed a reply brief on April 11, 1996.\n\nI. BACKGROUND\nUnless otherwise indicated, the following facts are either not in dispute or are viewed in the light most favorable to the plaintiffs. Plaintiffs are in the business of farming. Their farming operation is a large agricultural business[2] formerly operated by Keith Bruce and his son David Bruce and currently operated by David and Peggy Bruce. During the years 1990, 1991, and 1992, Plaintiffs' farming operation generated gross income of $2.1 million, $1.4 million, and $1.3 million respectively.\nIn connection with their farming operation, between 1982 and 1992, Plaintiffs purchased and used 32 different agricultural chemical products from 14 different manufacturers, including at least 29 separate purchases of five different Zeneca products. In addition, Plaintiffs have purchased Zeneca products in every year since 1983. These purchases have included Dyfonate, the product at issue in this case, in 1985, 1986, 1987, and 1990. The labels for each of these products included a disclaimer of warranty and limitation of liability. Moreover, all of the Zeneca and Stauffer[3] products purchased and used by Plaintiffs during this time period contained a label with a similar disclaimer of warranty and limitation of liability as the one on the Dyfonate label at issue.\nPlaintiff David Bruce has had a commercial pesticide application license since 1976 and has personally applied agricultural chemicals in every year since 1976. In order to maintain his license, David Bruce must take a class and pass a certification test every three years.\nDavid Bruce stated that he believed it is important to read agricultural chemical labels prior to applying the product. He also understood that it is a violation of federal law to apply a product in a manner inconsistent with the product's label. It is his practice to read every agricultural product label before applying the product.[4] David Bruce was also aware that agricultural chemical dealers had copies of labels of the products they sold and that he could review such labels prior to purchasing agricultural chemicals.\n*785 In 1992, Plaintiffs purchased Dyfonate II 20-G (\"Dyfonate\"), a Zeneca product, from two companies: J &amp; N Fertilizer Company, Inc., Malvern Iowa and Benes Service Co., Valparaiso, Nebraska. Zeneca offers various rebates, promotional gifts, contests and calibration of equipment through dealers such as J &amp; N and Benes.\nThe Dyfonate product which Plaintiffs purchased in 1992 contained a label on the bottom portion of the fifty pound bag that sets forth the following disclaimer of warranties and limitation of liabilities:\nIMPORTANT: Read the entire Directions for Use and Warranty before using this product.\nCONDITIONS OF SALE AND LIMITED WARRANTY:\nThe Directions for Use of this product are believed to be reliable and should be followed carefully. However, it is impossible to eliminate all risks associated with the use of this product. Crop injury, ineffectiveness or other unintended consequences may result because of such factors as timing and method of application, weather and crop conditions, mixture with other chemicals not specifically recommended or other influencing factors in the use of this product, all of which are beyond the control of the seller. All such risks shall be assumed by Buyer and User, and Buyer and User agree to hold Seller harmless for any claims relating to such factors.\nSeller warrants that this product conforms to the chemical description on the label and is reasonably fit for the purpose stated on the label, subject to the inherent risks referred to above, when used in accordance with directions under normal conditions of use. This warranty does not extend to the use of this product contrary to label instructions, or under abnormal conditions, or under conditions not reasonably foreseeable to or beyond the control of Seller and Buyer and User assume the risk of any such use. SELLER DISCLAIMS ALL OTHER WARRANTIES EXPRESSED OR IMPLIED INCLUDING ANY WARRANTY OF FITNESS OR MERCHANTABILITY.\nWhen Buyer and User claims losses or damages resulting from the use or handling of this product (including claims based on contract, negligence, strict liability or other legal theories), Buyer or User must promptly notify in writing Seller of any claims to be eligible to receive either of the remedies set forth below. The EXCLUSIVE REMEDY OF BUYER OR USER and the LIMIT OF LIABILITY of seller will be, at the election of the Seller, refund of the purchase price for product bought, or replacement of amount of product used. SELLER SHALL NOT BE LIABLE FOR CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES RESULTING FROM THE USE OR HANDLING OF THIS PRODUCT AND SELLER'S SOLE LIABILITY AND BUYER'S AND USER'S EXCLUSIVE REMEDY SHALL BE LIMITED TO THE REFUND OF THE PURCHASE PRICE.\nWhile Plaintiffs admit that they read the printed material that accompanied the pesticide which provided instructions for use and generally reviewed the bag for storage and disposal information, they deny that they actually read the disclaimer of warranties contained on the bag. (Bruce depo. 31:2-8; D. Ex. J).\nPlaintiffs applied the Dyfonate to 1,253.5 acres of their 1992 corn crop in order to control rootworm. However, the Dyfonate failed to properly control corn rootworms in Plaintiffs' 1992 corn crop resulting in substantial damage to Plaintiffs' crops and lower yields.\n\nII. SUMMARY JUDGMENT STANDARD\nSummary judgment is properly granted when the record, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Walsh v. United States, 31 F.3d 696, 698 (8th Cir.1994). The moving party must establish its right to judgment with such clarity that there is no room for controversy. Jewson v. Mayo Clinic, 691 F.2d 405, 408 (8th Cir.1982). \"[T]he mere existence of *786 some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.\" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). An issue is \"genuine,\" if the evidence is sufficient to persuade a reasonable jury to return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510. \"As to materiality, the substantive law will identify which facts are material.... Factual disputes that are irrelevant or unnecessary will not be counted.\" Id.\n\nIII. ANALYSIS\nIn support of its Motion for Summary Judgment, Zeneca argues that summary judgment is appropriate for several reasons. First, Zeneca asserts that all of the Plaintiffs' claims are based on allegedly inadequate pesticide labeling and as such are expressly preempted by the Federal Insecticide Fungicide and Rodenticide Act (\"FIFRA\"), 7 U.S.C. § 136 et seq. Second, Zeneca argues that Plaintiffs fail to state a claim under Iowa law because Plaintiffs may not recover economic losses pursuant to tort theories. In addition, Zeneca argues that Plaintiffs may not recover consequential economic loss against a non-privity seller pursuant to breach of warranty theories. Finally, Zeneca asserts that pursuant to Iowa Code §§ 554.2316 and 554.2719, it disclaimed all implied warranties and limited recovery upon a showing of breach of express warranty to the price of the product.\n\nA. Preemption by FIFRA\n\"FIFRA creates a comprehensive scheme for the regulation of pesticide labeling and packaging.\" Welchert v. American Cyanamid, Inc., 59 F.3d 69, 71 (8th Cir.1995); see Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 601, 111 S. Ct. 2476, 2479-80, 115 L. Ed. 2d 532 (1991). Section 24 of FIFRA provides in part:\n(a) In general\nA State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.\n(b) Uniformity\nSuch State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.\n7 U.S.C. § 136v(a), (b).\nState actions based on the adequacy of warnings or instructions on the labels of EPA-registered pesticides are preempted. E.g., Welchert, 59 F.3d at 73; see Cipollone v. Liggett Group, 505 U.S. 504, 525, 112 S. Ct. 2608, 2622, 120 L. Ed. 2d 407 (1992). \"Labeling\" is defined as \"all labels and all other written, printed, or graphic matter (A) accompanying the pesticide or device at any time; or (B) to which reference is made on the label or in the literature accompanying the pesticide or device.\" 7 U.S.C. § 136(p)(2).\nZeneca asserts that all of the Plaintiffs' claims are label-based, and, as such, are preempted by FIFRA. Plaintiffs, on the other hand, contend that their claims are not based upon information or instructions contained in the label. Rather, Plaintiffs assert that their claims are based upon the fact that the Dyfonate was ineffective regardless of what wordage was contained in or on the label.\n\n1. Breach of Implied Warranty of Fitness for a Particular Purpose\nDivision I of Plaintiffs' Petition states a claim for Breach of Implied Warranty of Fitness for a Particular Purpose. Paragraph 7 of Division one states:\nThat on the label of each bag of [Dyfonate] Defendant impliedly warranted to the ultimate consumer that the insecticide was for the control of corn rootworm, conformed to the chemical description on the label and was `reasonably fit for the particular purpose of the control of corn rootworm for use as directed thereon.'\nIf the Plaintiffs' claim for Breach of Implied Warranty of Fitness for a Particular Purpose was based on this paragraph alone, it would be preempted by FIFRA. See Welchert, 59 F.3d at 72-73. However, in other portions of *787 Plaintiffs' Petition, they indicate that the claim is also dependent upon representatives of Zeneca's statements and representations, advertising, sales literature, and Zeneca's trade name. (Petition ¶¶ 8, 9). As a result, while Plaintiffs may not rely on label-based allegations, as is contained in paragraph 7, the other allegations supporting their claim are not preempted by FIFRA.\n\n2. Breach of Warranty of Merchantability\nDivision II of Plaintiffs' Petition states a claim for Breach of Warranty of Merchantability. Similar to Plaintiffs' claim in Division I of their Petition, Plaintiffs' claim of breach of warranty of merchantability is premised upon label-based allegations (Petition, Division II ¶ 2) and allegations regarding representations made through advertising, sales literature, and Zeneca's trade name. (Petition, Division II ¶¶ 3, 4). As a result, while Plaintiffs' label-based allegations, contained in paragraph 2, are preempted by FIFRA, the other allegations supporting their claim are not preempted by FIFRA.\n\n3. Breach of Express Warranty\nUnlike an implied warranty, an express warranty based on the labeling of a product, which is \"voluntarily undertaken should not be regarded as a `requirement ... imposed under State law.'\" Cipollone v. Liggett Group, 505 U.S. 504, 526, 112 S. Ct. 2608, 2622, 120 L. Ed. 2d 407 (1992)[5] (emphasis added). Rather, the contractual nature of such a warranty dictates that such claims are not preempted by FIFRA. Id.\nUnder FIFRA, before a pesticide can be registered with the EPA, the Administrator must determine whether:\n(A) its composition is such as to warrant the proposed claims for it;\n(B) its labeling and other material required to be submitted comply with the requirements of the Act; ....\n7 U.S.C. § 136a(c)(5)(A)-(B).[6] Furthermore, the EPA requires that a pesticide manufacture include on the pesticide labeling directions for use, the use classification, the sites of application, the target pests, and the dosage rate for each site and pest. 40 C.F.R. § 156.10(i)(2)(x)(B), (h)(2), (i)(1), (i)(2)(i). In registering Dyfonate and approving its product labeling, the EPA also concluded that Dyfonate, its testing and the labeling accompanying it were reasonable and appropriate when the product was used in accordance with \"widespread and commonly recognized practice.\" Id.\nPlaintiffs' assert in their claim for Breach of Express Warranty that \"on the label of each bag of [Dyfonate] [Zeneca] expressly warranted to the ultimate consumer that the insecticide was for the control of corn root-worm, conformed to the chemical description of the label and was `reasonably fit for use as directed thereon.'\" (Petition, Division III ¶ 2).\nFIFRA and its regulations require Zeneca to provide the labeling information which forms the basis for the portion of Plaintiffs' claim for breach of express warranty which is based on Zeneca's label. Thus, Zeneca's label statement regarding Dyfonate's use and its chemical description is a mandated disclosure under FIFRA, not a \"voluntarily undertaken\" promise. Welchert, 59 F.3d at 72 (citing Higgins v. Monsanto Co., 862 F. Supp. 751, 761 (N.D.N.Y.1994)); Worm v. American Cyanamid Co., 5 F.3d 744, 749 (4th Cir.1993). As a result, to the extent Plaintiffs' claim for Breach of Express Warranty *788 is based on the labels of the Dyfonate, the claim is preempted.\nHowever, to the extent that the claim is based on allegations regarding warranties made through advertisements, sales literature, and Zeneca's trade name (Petition, Division III, ¶¶ 3, 4) the claim is not preempted by FIFRA.\n\n4. Strict Liability\nPlaintiffs' claim of strict liability is not label-based and is therefore not preempted by FIFRA.\n\nB. Recovery for Economic Loss Pursuant to Iowa Tort Law\nIn Division IV of their Petition, Plaintiffs allege a cause of action sounding in tort — strict liability. Under Iowa law, \"purely economic injuries without accompanying physical injury to the user or consumer or to the user or consumer's property are not recoverable under strict liability.\" Nelson v. Todd's Ltd., 426 N.W.2d 120, 123 (Iowa 1988).\nAs part of their strict liability claim, Plaintiffs allege that the Dyfonate that they purchased did not effectively control corn rootworms. Plaintiffs further allege that the proximate result of this ineffectiveness was that they have sustained the following damages: (1) the purchase price of the Dyfonate used and (2) loss of income resulting from yield loss due to the ineffectiveness of the Dyfonate. (Petition, Division IV ¶ 6).\nWhile contract law protects a purchaser's expectation interest that the product received will be fit for its intended use, the essence of products liability law is that the plaintiff has been exposed, through a dangerous product, to a risk of injury to his person or property. Tomka v. Hoechst Celanese Corp., 528 N.W.2d 103, 107 (Iowa 1995). \"Defects of suitability and quality are redressed through contract actions and safety hazards through tort actions.\" Id.\nIn Nelson v. Todd's Ltd., 426 N.W.2d 120 (Iowa 1988), the plaintiff brought a products liability claim against a meat curing product manufacturer because the meat curing product failed to work, resulting in spoiling of quantities of meat. Id. at 120. The Supreme Court of Iowa found that the \"harm occurred not because [the allegedly defective product] damaged the meat in some active way, but because it failed to work at all.\" Id. at 123. As a result, the loss related to the user's \"disappointed expectations due to deterioration, internal breakdown or non-accidental cause, the remedy lies in contract.\" Id. at 125.\nSimilar to Nelson, in the present case, \"the damage was the foreseeable result from an alleged failure of the product to work properly because of a defect or omission from the product.\" Id. The Court finds that Plaintiffs' claim that the defective Dyfonate caused significant yield reductions constitutes a loss that is cognizable by the law of contracts or commercial transactions rather than tort law. See Id. at 124-25; Tomka, 528 N.W.2d at 106-07 (damage caused by a product designed to promote growth in cattle which failed to so, gave rise to an contract-warranty cause of action rather than a tort action); Earl Brace &amp; Sons v. Ciba-Geigy Corp., 708 F. Supp. 708, 711 (W.D.Pa.1989) (holding that a reduction in plaintiff's potato yield allegedly caused by herbicide ineffectiveness was the result of the failure of the herbicide to meet the economic expectations of the plaintiff and therefore not recoverable in tort); Monsanto Agricultural Products Co. v. Edenfield, 426 So. 2d 574, 576 (Fla.App. 1982) (holding that the purchaser of an allegedly ineffective herbicide could not recover in tort). As a result, Plaintiffs are precluded from recovering their economic injuries through a strict liability claim.\n\nC. Consequential Economic Loss Against a Non-Privity Seller\nUnder Iowa law, non-privity buyers cannot recover consequential economic loss damages under a theory of express or implied warranty. Tomka, 528 N.W.2d at 107-08 (citing Beyond the Garden Gate, Inc. v. Northstar Freeze-Dry Mfg., Inc., 526 N.W.2d 305, 309-10 (Iowa 1995)).\nWhether a party is \"in privity\" with another party depends on whether they are parties to a contract. If the parties have contracted with each other, they are in *789 privity.... If they have not, they are not in privity.... [A]n example of a non-privity plaintiff [is] one who purchases a product but does not buy it directly from the defendant.\nId. at 107. In the present case, part of the damages that Zeneca seeks to recover are consequential economic loss damages.[7] As a result, the Court must determine whether the Plaintiffs and Zeneca were in privity in order to determine whether Plaintiffs can recover the consequential economic loss damages under their warranty claims.\nIn 1992, Plaintiffs purchased the Dyfonate in question from two companies: J &amp; N Fertilizer Company, Inc., Malvern Iowa (\"J &amp; N\") and Benes Service Co., Valparaiso, Nebraska (\"Benes\"). Zeneca argues that it is not \"in privity\" with Plaintiffs because Plaintiffs purchased the Dyfonate from separate business entities rather than directly from Zeneca. Plaintiffs, on the other hand, argue that a principal-agency relationship existed between Zeneca and the dealers which sold its products. As a result of this principal-agent relationship, Plaintiffs assert that they were \"in privity\" with Zeneca when they purchased its products.\nAn agency relationship can be established by expressed, implied, or apparent authority. Smith v. Air Feeds, Inc., 519 N.W.2d 827, 831 (Iowa App.1994); see Clemens Graf Droste Zu Vischering v. Kading, 368 N.W.2d 702, 711 (Iowa 1985). The agency relationship may be proven by the words and conduct of the parties, together with all the circumstances of the particular case. Menzel v. Morse, 362 N.W.2d 465, 475 (Iowa 1985). The existence of an agency relationship is ordinarily a fact question, but there must be substantial evidence to generate a jury question. Chariton Feed and Grain, Inc. v. Harder, 369 N.W.2d 777, 779 (Iowa 1985); Anderson v. Boeke, 491 N.W.2d 182, 187 (Iowa App.1992). However, direct evidence is not required. Menzel, 362 N.W.2d at 475. The burden of proving the principal agent relationship is upon the party asserting such a relationship. Brockway v. Employment Appeal Bd., 469 N.W.2d 256, 257 (Iowa App.1991).\nThe principal's right to control the agent is the primary consideration in determining the existence of an agency relationship. Mermigis v. Servicemaster Industries, Inc., 437 N.W.2d 242, 246 (Iowa 1989). Although they are distributors for Zeneca's products, J &amp; N and Benes are incorporated separately from Zeneca. Plaintiffs point to Zeneca's offer of various rebates, promotional gifts, contests and calibration of equipment through dealers such as J &amp; N and Benes as evidence of a principal-agent relationship.[8]\nWhile J &amp; N and Benes may have been authorized distributors of Zeneca's products, the activities mentioned by Plaintiffs are insufficient to demonstrate that Zeneca controlled the operations of J &amp; N and Benes related to Dyfonate. See Connick v. Suzuki Motor Co., Ltd., 275 Ill.App.3d 705, 717-18, 212 Ill. Dec. 17, 27, 656 N.E.2d 170, 180 (1995) (fact that sale is made by authorized *790 dealer of manufacturer does not give rise to apparent authority or agency relationship on part of the dealer sufficient to establish privity between the manufacturer and the purchaser thus allowing recovery by the purchaser against the manufacturer based on a breach of express warranty claim). As a result, the Court concludes that the record fails to create a question of material fact regarding the existence of an principal-agency relationship between Zeneca and Plaintiffs. See State v. Hawkeye Oil Company, 253 Iowa 148, 110 N.W.2d 641, 644 (1961) (relationship of principal and agent did not exist between a fuel dealer and a distributor through whom the dealer made purchases because the dealer maintained and operated his station independently of distributor); Malone v. Nissan Motor Corp., 190 Wis. 2d 436, 526 N.W.2d 841, 842 (1994) (evidence did not establish that the dealer acted as the manufacturer's agent because the testimony indicated that the manufacturer did not supervise or control the dealer's daily activities); Malmberg v. American Honda Motor Co. Inc., 644 So. 2d 888, 890 (Ala.1994) (existence of agency relationship between manufacturer and dealer was not established where the dealer was required to maintain a place of business with sales, service, and parts departments, to develop public interest in manufacturer's products, and to expressly provide to customers that the manufacturer's warranty went with vehicle because the manufacturer did not provide day-to-day supervision, did not determine how the dealer was to comply with the agreement, and left the dealer in charge of determining how to conduct its business); Schweich v. Ziegler, Inc., 463 N.W.2d 722, 730 (Minn.1990) (agency relationship did not exist between a manufacturer of tractors and the tractor's distributor and seller where manufacturer had no right to control the manner of performance of the distributor and did not otherwise hold out the distributor or the seller as its agents, although the distributor used the manufacturer's name for promotional purposes and used the manufacturer's forms to record modifications and repairs); Hunter Min. Laboratories, Inc. v. Management Assistance, Inc., 104 Nev. 568, 763 P.2d 350, 351 (1988) (computer dealers were not the agents of the computer manufacturer as was required to hold the manufacturer liable for the dealer's breach of contracts with the computer buyer because the manufacturer did not control the day to day operative details of the dealer's businesses).\nTherefore, as non-privity buyers, Plaintiffs cannot recover consequential economic loss damages under their warranty claims.\n\nD. Disclaimer\nZeneca claims that it effectively disclaimed all implied warranties and limited recovery on any alleged breach of express warranty to direct damages — the cost of the Dyfonate. Plaintiffs counter that Zeneca's disclaimer of warranties was not conspicuous and that, as a result, under Iowa law, the disclaimer was ineffective.\nImplied or express warranties may be modified or excluded pursuant to Iowa Code § 554.2316.[9] Furthermore, \"the parties to a contract can agree to exclude consequential damages from one party's possible recovery upon a breach of that contract\" pursuant to Iowa Code § 554.2719.[10]Boone Valley Coop. Proc. Ass'n v. French Mill Mach. Co., 383 F. Supp. 606, 612 (N.D.Iowa 1974).\n\n1. Exclusion or Modification of Warranties\nIowa Code § 554.2316(2) permits a seller to exclude an implied warranty of merchantability if the disclaimer: (1) mentions *791 merchantability and (2) is conspicuous. Iowa Code § 554.2316(2). A seller may exclude an implied warranty of fitness if the disclaimer: (1) is in writing and (2) is conspicuous. Iowa Code § 554.2316(2). Zeneca's disclaimer in the present case is in writing and it mentions merchantability. Therefore, the Court must determine whether the disclaimer is conspicuous in order to determine whether Plaintiffs' claims of implied warranty of merchantability and implied warranty of fitness are excluded by Zeneca's disclaimer.[11]\nThe Iowa Code provides guidance in determining whether a term is conspicuous.\nA term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: \"Non-negotiable Bill of Lading\") is conspicuous. Language in the body of a form is \"conspicuous\" if it is in larger or other contrasting type or color....\nIowa Code § 554.1201(10). Zeneca's disclaimer is contained on a label on the bottom portion of the fifty pound bag of Dyfonate. The label is entitled in bold, capital letters \"CONDITIONS OF SALE AND LIMITED WARRANTY.\" It then states, \"IMPORTANT: Read the Directions for Use and Conditions of Sale and Warranty before using this product.\" The portion of the disclaimer which attempts to exclude claims for implied warranties of merchantability and fitness are in bold, capital letters.\nBecause the printed heading and language of the exclusion is in bold, capital letters, the Court finds that a reasonable person should have noticed it. See Adams v. American Cyanamid Co., 1 Neb.App. 337, 498 N.W.2d 577, 585 (1992) (label on herbicide disclaiming warranties was conspicuous even though disclaimer label appeared in owner's manual where disclaimer heading was displayed prominently and disclaimer was sufficiently set off from other materials); Duyck v. Northwest Chemical Corp., 94 Or.App. 111, 764 P.2d 943, 945 (1988) (notice of warranty that appeared in capital letters on face of a one page contract for sale, with critical portions in boldface, was conspicuous). Therefore, the Court determines that the disclaimer is conspicuous.\nPlaintiff David Bruce admits that he read the printed material that accompanied the pesticide which provided instructions for use and generally reviewed the bag for storage and disposal information but he denies that he actually read the disclaimer of warranties contained on the bag. However, even if Plaintiffs did not actually read the disclaimer, they are still bound by its terms. \"If a disclaimer is conspicuous, it is effective so long as the buyer receives the disclaimer and has a reasonable opportunity to read it.\" Adams v. American Cyanamid Co., 1 Neb. Ct. App. 337, 498 N.W.2d 577, 587 (1992); see Earl Brace &amp; Sons v. Ciba-Geigy Corp., 708 F. Supp. 708, 710 (W.D.Pa.1989) (farmer who was presented disclaimer on box of herbicide but did not read it was bound by it); Childers &amp; Venters, Inc. v. Sowards, 460 S.W.2d 343 (Ky.1970) (buyer of truck was bound by disclaimer where he was presented disclaimer on the contract but he did not read it before signing it).[12] In addition, Plaintiff David Bruce's previous extensive use of agricultural chemical products, including several other Zeneca products, which contained similar disclaimers to the one in question, demonstrates that he knew or should have known of the disclaimer.[13]See Iowa Code § 554.2316(3)(c) (\"[A]n implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.\"); Earl Brace, 708 F.Supp. at 710 (fact that plaintiff had used the product and read instructions previously demonstrates that he *792 knew or should have known of the disclaimer through course of performance).\nAs a result, Plaintiffs are precluded from bringing their claims of Breach of Implied Warranty of Fitness for a Particular Purpose (Division I) and Breach of Warranty of Merchantability (Division II).\n\n2. Limitation of Consequential Damages[14]\nZeneca expressly warranted Dyfonate and limited its liability for breach of that warranty to refund of the purchase price. Plaintiffs assert that the limitation on damages is unconscionable and therefore unenforceable. Iowa Code § 554.2719 allows a party to limit or exclude consequential damages unless such limitation or exclusion is unconscionable. Iowa Code § 554.2719(3). The determination of whether a limitation of liability is unconscionable is a question of law for the Court. Iowa Code § 554.2302.\n\"In considering a claim of unconscionability the court should examine the factors of assent, unfair surprise, notice, disparity of bargaining power, and substantive unfairness.\" Gentile v. Allied Energy Products, Inc., 479 N.W.2d 607, 609 (Iowa App.1991) (citing C &amp; J Fertilizer v. Allied Mut. Ins. Co., 227 N.W.2d 169, 181 (Iowa 1975)). A bargain is unconscionable if it is \"such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.\" Lakeside Boating and Bathing, Inc. v. State, 402 N.W.2d 419, 422 (Iowa 1987) (citations omitted).\nPlaintiffs are experienced and sophisticated farmers who farm approximately 2,500 acres a year. Their farming operation generated between 1 million and 2 million dollars annually between 1990 and 1992. Plaintiffs have purchased 32 different agricultural chemical products which have all contained disclaimers of warranty and limitation of liability clauses between 1982 and 1993. In addition, as discussed previously, through their course of dealing with these agricultural products, including several Zeneca products, Plaintiffs knew of or should have known of such disclaimers and limitation of liability clauses on the products.\nThe Plaintiffs are not without recourse due to the limited liability provision on the Dyfonate label. Even though the Plaintiffs are precluded from seeking consequential economic loss damages, they are still able to seek a refund of the purchase price of the Dyfonate. The decision by Zeneca to limit damages, in the absence of other evidence, may be due to \"the uncertainties inherent in the agricultural business ... such as planting, cultivating, harvesting, and marketing decisions, [that] are uniquely within the control of the farmer....\" Lindemann v. Eli Lilly and Company, 816 F.2d 199, 204 (5th Cir.1987).\nBased on the foregoing, the Court concludes that Zeneca's limitation of liability clause contained on its label is not unconscionable. See Id. at 203-05 (herbicide manufacturer's exclusion of consequential damages was not unconscionable where farmers were commercially experienced, had course of dealing with the manufacturer for over 20 years, and the decision of the herbicide manufacturer to limit damages was a reasonable allocation of unknown or undetermined risks). As a result, based on the express terms of the limitation of liability clause, Plaintiffs cannot recover consequential damages pursuant to their Breach of Express Warranty claim. Rather, their recovery is limited to the price of the product.\n\nIV. CONCLUSION\nBased on the foregoing, Defendant's Motion for Summary Judgment is granted on Plaintiffs' claims for Breach of Implied Warranty of Fitness for a Particular Purpose (Division I), Breach of Warranty of Merchantability (Division II), and Strict Liability (Division IV). Plaintiffs are also precluded from seeking consequential damages based on the Breach of Express Warranty claim (Division III). Insofar as Zeneca's motion seeks further relief, it is denied.\nNOTES\n[1] The Amended and Substituted Petition states the following causes of action: Breach of Implied Warranty of Fitness for a Particular Purpose (Division I), Breach of Warranty of Merchantability (Division II), Breach of Express Warranty (Division III), Strict Liability (Division IV).\n[2] Plaintiffs farm approximately 2,500 acres a year. (Bruce depo. 6:15-20). In addition, during the period 1990-92, Plaintiffs raised 4,500 cattle every year. Plaintiffs also employ 2 fulltime employees, use a commercial accountant, and own an extensive amount of farming equipment.\n[3] In 1987, Zeneca, at that time known as ICI Americas, Inc., purchased Stauffer Chemical Co.\n[4] David Bruce read the Dyfonate label before applying it in 1985, 1986, 1987, 1990, and 1992.\n[5] In Cipollone the Supreme Court analyzed the preemption provision in the Public Health Cigarette Smoking Act of 1969, 15 U.S.C. §§ 1331-1340, which is substantially similar to the preemption provision in FIFRA. Welchert, 59 F.3d at 71. The preemption provision in the 1969 Cigarette Act provides:\n\nNo requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.\n15 U.S.C. § 1334(b).\n[6] The corresponding federal regulation provides in part that the EPA will approve an application under the criteria of FIFRA § 3(c)(5) only if:\n\nThe Agency has determined that the product is not misbranded as that term is defined in FIFRA sec. 2(q) and part 156 of this chapter, and its labeling and packaging comply with the applicable requirements of the Act, this part, and parts 156 and 157 of this chapter.\n40 C.F.R. § 152.112(f).\n[7] In their Petition Plaintiffs state:\n\nThe failure of [Dyfonate] to effectively control corn rootworm decrease[s] the yield of Plaintiffs' 1,253.50 acre corn crop by approximately 55.69 bushels per acre; whereby Plaintiffs have suffered a loss of income from Plaintiffs' crop in the amount of $139,555.41.\n(Petition, Division I ¶ 15; Division II ¶ 9); Division III ¶ 9). These damages constitute consequential economic loss damages. Beyond the Garden Gate, Inc., 526 N.W.2d at 309 (consequential economic loss damages include \"loss of profits resulting from the failure of the goods to function as warranted....\").\n[8] Specifically, Plaintiffs assert that the several parts of the record create a question of material fact regarding the existence of an agency relationship. In 1988/1989, Zeneca offered customers a Black &amp; Decker dustbuster if they would purchase 500 pounds of Dyfonate. Zeneca participated with its dealers in giving away a Ford pickup and other prizes in the same year. In 1991, advertisements informed customers that they could contact either the dealer or the corporation for additional information on its products. In 1988, Zeneca offered mail-in refunds equal to $2.50 per bag of Dyfonate purchased. In 1989, Zeneca instituted a \"Tools for Success\" promotion in conjunction with its dealers, which included free valuable merchandise to be given away to customers. In 1990, Zeneca offered its customers free calibration of customer's planters to ensure proper application of Dyfonate. Finally, Zeneca has incorporated dealers' names in its radio ads to promote the sale and use of its product.\n[9] Section 554.2316(2) of the Iowa Code provides:\n\nSubject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by writing and conspicuous.....\nIowa Code § 554.2316(2).\n[10] Iowa Code § 554.2719(3) provides:\n\nConsequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima-facie unconscionable but limitation of damages where the loss is commercial is not.\nIowa Code § 554.2719(3).\n[11] \"Whether a term or clause is `conspicuous' or not is for decision by the court.\" Iowa Code § 554.1201(10).\n[12] This interpretation is consistent with Iowa Code § 554.1201(10) which provides that a term is \"conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it.\" Iowa Code § 554.1201(10) (emphasis added).\n[13] David Bruce's generally reads every agricultural product label before applying it. Plaintiffs have purchased Zeneca products every year since 1983. These purchases have included Dyfonate, the product at issue in this case, in 1985, 1986, 1987, and 1990. David Bruce read the Dyfonate label before applying it in 1985, 1986, 1987, 1990, and 1992.\n[14] Even though the Court has determined that as non-privity buyers, Plaintiffs cannot recover consequential economic loss damages under their warranty claims, the Court will also address the issue of the disclaimer's limitation of liability.\n\n", "ocr": false, "opinion_id": 1742237 } ]
S.D. Iowa
District Court, S.D. Iowa
FD
Iowa, IA
2,697,755
Kline
"2012-02-13"
false
bell-v-turner
Turner
Bell v. Turner
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "2012 Ohio 669" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/4/2012/2012-ohio-669.pdf", "author_id": 8111, "opinion_text": "[Cite as Bell v. Turner, 2012-Ohio-669.]\n\n\n IN THE COURT OF APPEALS OF OHIO\n FOURTH APPELLATE DISTRICT\n HIGHLAND COUNTY\n\n\nRodney Bell, et al., :\n :\n Plaintiffs-Appellants, :\n : Case Nos. 10CA18 &\n v. : 10CA19\n :\nWilliam A. Turner, et al., :\n :\n Defendants-Appellees, :\n :\n and :\n : DECISION AND\nHarriett Fout, dba Fout Realty, : JUDGMENT ENTRY\n :\n Third-Party Defendant-Appellant. : Filed: February 13, 2012\n_____________________________________________________________________\n\n APPEARANCES:\n\nJon C. Hapner, Hapner & Hapner, Hillsboro, Ohio, for Plaintiff-Appellant, Rodney Bell.\n\nConrad A. Curren, Greenfield, Ohio, for Defendant-Appellant, Harriet Fout, dba Fout\nRealty.\n\nJohn S. Porter, Rose & Dobyns,Co. L.P.A. Blanchester, Ohio, for Defendant-Appellee,\nStella Turner.\n\n_____________________________________________________________________\n\nKline, J.:\n\n{¶1} Rodney Bell and Shirley Diane Bell (hereinafter the “Bells”) appeal the\n\njudgment of the Highland County Court of Common Pleas granting rescission of a\n\ncontract for the sale of real estate to William and Stella Turner (hereinafter the\n\fHighland App. Nos. 10CA18 & 10CA19 2\n\n\n“Turners”).1 Harriet Fout, dba Fout Realty, (hereinafter “Fout”) also appeals the\n\njudgment of the trial court, which ordered her to disgorge her commission for the real\n\nestate sale.2 We recently remanded this case for lack of a final appealable order.\n\nFollowing our remand, the trial court issued a new judgment entry. We find, however,\n\nthat the new judgment entry did not cure the lack of finality. As a result, the trial court’s\n\norder is not a final appealable order. And therefore, we lack jurisdiction to consider the\n\nmerits of parties’ arguments. Accordingly, we dismiss this appeal.\n\n I.\n\n{¶2} This litigation is the product of a failed real estate transaction. This case has\n\nbeen before us on multiple occasions, and we have recounted the facts of this case in\n\nprevious opinions. See Bell v. Turner, 4th Dist. No. 05CA10, 2006-Ohio-704, ¶ 2-14;\n\nBell v. Turner, 172 Ohio App.3d 238, 2007-Ohio-3054, 874 N.E.2d 820 ¶ 3-13 (4th Dist.)\n\n(hereinafter “Bell II”); Bell v. Turner, 191 Ohio App.3d 49, 2010-Ohio-4506, 944 N.E.2d\n\n1179, ¶ 2-5 (4th Dist.) (hereinafter “Bell III”).\n\n{¶3} Following our remand of this case in Bell II, the trial court held a trial on the\n\nremedy of rescission. After trial, the trial court issued its July 6, 2009 Entry. The July 6,\n\n2009 Entry ordered Fout to disgorge the $6,500 real estate commission she had\n\nreceived as a result of the Bells and Turners’ failed real estate transaction.\n\n\n\n\n1\n The record indicates that, of the Bells, only Rodney Bell appealed. The record also\nindicates that William Turner is deceased and that Stella Turner is the executor of\nWilliam Turner’s estate. Nonetheless, we refer to the parties as the “Bells” and the\n“Turners” for expediency.\n2\n We note that this case is a consolidated appeal. The Bells are the plaintiffs below,\nand Fout is a third-party defendant. Both the Bells and Fout appeal from the same\njudgment entry.\n\fHighland App. Nos. 10CA18 & 10CA19 3\n\n\n{¶4} Both the Bells and Fout appealed the trial court’s July 6, 2009 Entry. We held\n\nthat, because the July 6, 2009 Entry did not determine the recipient of the disgorged\n\n$6,500 real estate commission, that entry was not a final appealable order. Bell III at ¶\n\n15. Therefore, we dismissed the appeal for lack of jurisdiction. Id.\n\n{¶5} Following our remand in Bell III, the trial court issued an entry on Nov. 24,\n\n2010. The Bells and Fout now appeal from the trial court’s Nov. 24, 2010 Entry. The\n\nBells assert the following assignments of error: I. “The Trial Court erred in its decree of\n\nrescission wherein the Defendant/Appellee incurred the real estate taxes and imposed\n\nthe delinquent taxes on Appellant.” And, II. “The Trial Court erred in placing the burden\n\nof restoration upon the Plaintiff/Appellants since it was the Defendant/Appellee Turners\n\nseeking rescission.” Fout asserts the following assignments of error: I. “The trial court\n\ndid not have jurisdiction to address the matter of Appellant Fout’s commission, as the\n\ndoctrine or [sic] res judicata bars all claims that have been previously litigated and any\n\norder relating to Appellant Fout was beyond the mandate of the Appellate Court’s\n\nremand.” And, II. “The trial court erred to the detriment of the Defendant/Appellant\n\nwhen it ordered Defendant/Appellant Fout to disgorge the commission, together with\n\nstatutory interest, as such order was in violation of the Appellate Court’s remand, which\n\nrequired the trial court to determine what steps are required to put the parties back in\n\ntheir pre-contract position.”\n\n II.\n\n{¶6} As we did in Bell III, we must address our jurisdiction before we address the\n\nmerits of the parties’ arguments. “Ohio law provides that appellate courts have\n\njurisdiction to review the final orders or judgments of inferior courts in their district.”\n\fHighland App. Nos. 10CA18 & 10CA19 4\n\n\nCaplinger v. Raines, 4th Dist. No. 02CA2683, 2003-Ohio-2586, ¶ 2, citing Ohio\n\nConstitution, Article IV, Section (3)(B)(2); R.C. 2505.02. “If an order is not final and\n\nappealable, then we have no jurisdiction to review the matter.” Saunders v. Grim, 4th\n\nDist. App. Nos. 08CA668 and 08CA669, 2009-Ohio-1900, ¶ 5. “In the event that this\n\njurisdictional issue is not raised by the parties involved with the appeal, then the\n\nappellate court must raise it sua sponte.” Caplinger at ¶ 2, citing Chef Italiano Corp. v.\n\nKent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus.\n\n{¶7} As indicated above, we dismissed the appeal in Bell III because the trial\n\ncourt’s July 6, 2009 Entry was not a final appealable order. That entry states as follows:\n\n“Defendant Harriet Fout dba Fout Realty is hereby ordered to immediately disgorge the\n\n$6,500.00 real estate commission paid to her on June 9, 1995 and pay that amount plus\n\naccrued statutory interest from March 12, 1996 (the date of the initial demand for\n\nrescission) to the Clerk of this Court. The Clerk shall hold said funds for future\n\ndisbursement on the motion of any party.” July 6, 2009 Entry at 1-2.\n\n{¶8} In finding that the July 6, 2009 Entry was not a final appealable order, we\n\nfound the following: “By leaving the issue of the $6,500 open, * * * sound judicial\n\nadministration does not support giving the parties the right to immediately appeal the\n\ntrial court’s order.” Bell III at ¶ 15. Instead, we found that the July 6, 2009 Entry was\n\nnot final and appealable because it “expressly reserved decision on the final destination\n\nof the $6,500.” Id.\n\n{¶9} Following our dismissal in Bell III, the trial court issued a new entry, which\n\nstates as follows:\n\fHighland App. Nos. 10CA18 & 10CA19 5\n\n\n Defendant Harriet Fout dba Fout Realty is hereby ordered to\n\n immediately disgorge the $6,500.00 real estate commission paid to her on\n\n June 9, 1995 and pay that amount plus accrued statutory interest from\n\n March 12, 1996 (the date of the initial demand for rescission) to the Clerk\n\n of this Court.\n\n Upon receipt of the disgorged real estate commission and accrued\n\n interest, the Clerk of Courts shall immediately notify all parties via their\n\n respective counsel that said funds are being held by the Court. Following\n\n receipt of said notice from the Clerk of Courts, Defendant Stella Turner\n\n (individually and in her capacity as Executrix of the Estate of William A.\n\n Turner) shall have fourteen (14) days to file an application for a\n\n disbursement from said funds held on deposit to effectuate the\n\n reimbursement to said Defendant of all closing costs paid on June 9, 1995\n\n as Ordered herein. Further, Plaintiffs shall also have fourteen (14) days to\n\n submit a similar application to the Court seeking disbursement from the\n\n funds held on deposit by the Clerk of Courts as an offset against the real\n\n estate taxes, interest, and penalties which have accrued since March 12,\n\n 1996 on the subject parcels as Ordered herein. In the event the\n\n application for disbursement of funds is not timely made by any party, the\n\n Clerk of Courts shall refund all amounts paid by Defendant Harriett Fout\n\n dba Fout Realty back to said Defendant. Nov. 24, 2010 Entry.\n\n{¶10} We conclude that the Nov. 24, 2010 Entry suffers from the same defect as the\n\nJuly 6, 2009 Entry. That is, the Nov. 24, 2010 Entry also reserves decision on the final\n\fHighland App. Nos. 10CA18 & 10CA19 6\n\n\ndestination of the $6,500. Here, the Nov. 24, 2010 Entry merely expands upon the\n\nprocedure to obtain the disgorged real estate commission. The Nov. 24, 2010 Entry\n\ndoes not, however, award the $6,500 to anyone in particular. Instead, under the order,\n\nboth the Turners and the Bells have fourteen days following receipt of notification from\n\nthe court to apply for the funds. Just as we found in Bell III, the issue of the $6,500\n\nremains “left open.” Therefore, based on our reasoning in Bell III, we find that the trial\n\ncourt’s Nov. 24, 2010 Entry is not a final appealable order.\n\n{¶11} Accordingly, we dismiss this appeal for lack of jurisdiction.\n\n APPEAL DISMISSED.\n\fHighland App. Nos. 10CA18 & 10CA19 7\n\n\n JUDGMENT ENTRY\n\n It is ordered that the APPEAL BE DISMISSED. Appellants and Appellees shall\npay equally the costs herein taxed.\n\n The Court finds there were reasonable grounds for this appeal.\n\n It is ordered that a special mandate issue out of this Court directing the\nHighland County Court of Common Pleas to carry this judgment into execution.\n\n A certified copy of this entry shall constitute the mandate pursuant to Rule\n27 of the Rules of Appellate Procedure. Exceptions.\n\nAbele, P.J. and Harsha, J.: Concur in Judgment and Opinion.\n\n\n\n\n For the Court\n\n\n BY:_____________________________\n Roger L. Kline, Judge\n\n\n\n\n NOTICE TO COUNSEL\n\n Pursuant to Local Rule No. 14, this document constitutes a final judgment\nentry and the time period for further appeal commences from the date of filing\nwith the clerk.\n\f", "ocr": false, "opinion_id": 2697755 } ]
Ohio Court of Appeals
Ohio Court of Appeals
SA
Ohio, OH
2,333,112
Kimball
"2004-10-04"
false
hafen-v-strebeck
Hafen
Hafen v. Strebeck
John HAFEN and John Reed, Plaintiffs, v. Sid STREBECK, Defendants
Matthew N. Evans, Esq., Holme Roberts & Owen LLP, Salt Lake City, UT, for Plaintiffs., Sean N. Egan, Esq., Kearns Bldg, Salt Lake City, UT, for Defendants.
null
null
null
null
null
null
null
null
null
null
1
Published
null
<parties id="b1299-10"> John HAFEN and John Reed, Plaintiffs, v. Sid STREBECK, Defendants. </parties><docketnumber id="Apl2"> No. 2:04 CV 507DAK. </docketnumber><court id="AbMr"> United States District Court, D. Utah, Central Division. </court><decisiondate id="AJ8"> Oct. 4, 2004. </decisiondate><br><attorneys id="b1300-13"> <span citation-index="1" class="star-pagination" label="1258"> *1258 </span> Matthew N. Evans, Esq., Holme Roberts <em> &amp; </em> Owen LLP, Salt Lake City, UT, for Plaintiffs. </attorneys><br><attorneys id="b1300-14"> Sean N. Egan, Esq., Kearns Bldg, Salt Lake City, UT, for Defendants. </attorneys>
[ "338 F. Supp. 2d 1257" ]
[ { "author_str": "Kimball", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 1773, "opinion_text": "\n338 F. Supp. 2d 1257 (2004)\nJohn HAFEN and John Reed, Plaintiffs,\nv.\nSid STREBECK, Defendants.\nNo. 2:04 CV 507DAK.\nUnited States District Court, D. Utah, Central Division.\nOctober 4, 2004.\n*1258 Matthew N. Evans, Esq., Holme Roberts &amp; Owen LLP, Salt Lake City, UT, for Plaintiffs.\nSean N. Egan, Esq., Kearns Bldg, Salt Lake City, UT, for Defendants.\n\nMEMORANDUM DECISION AND ORDER\nKIMBALL, District Judge.\nThis matter is before the court on Defendant Sid Strebeck's Motion to Dismiss. A hearing on the motion was held on September 22, 2004. At the hearing, Defendant was represented by Sean N. Egan and Plaintiffs were represented by Matthew N. Evans. The court took the matter under advisement. The court has considered carefully the memoranda submitted by the parties as well as the law and facts relating to the motion. Now being fully advised, the court renders the following Memorandum Decision and Order.\n\nBACKGROUND\nAccording to Plaintiffs' Complaint, the acts that form the basis of this action involve conversations made via telephone by Defendant Strebeck to Plaintiff Hafen, while Hafen resided in Utah, and correspondence sent by Strebeck to Hafen in Utah. Plaintiffs Hafen and Reed have an ownership interest in software marketed under the name EV4 (\"Software\"). Strebeck procured physical possession of the Software by foreclosing on assets of a company called Versidata. Versidata had previously acquired a license to use the Software from Hafen and Reed. Versidata owed Hafen and Reed in excess of $188,000 for the use of the Software.\nJohn Reed is a resident of Washington. John Hafen is a resident of Provo, Utah. However, it is unrebutted that at times relevant to this action, he also resided in *1259 the State of Washington. Strebeck is a resident of New Mexico, and the Software is physically located in Oklahoma.\nOn September 13, 2002, Strebeck telephoned Hafen, who was in Provo, Utah at the time, to talk about the Software. During this conversation, Strebeck allegedly represented that he had a million dollar deal with a company called Reynolds &amp; Reynolds to further develop the Software. Strebeck also allegedly represented that he was going to get a $500,000 investment from Dealers Diversified for marketing the Software to car dealers across the country, which could generate millions of dollars in revenues. Plaintiffs allege that Strebeck made these representations in order to induce Hafen and Reed to forego repossessing the Software.\nIn addition, Plaintiffs claim that Strebeck told Hafen that he would either pay Plaintiffs in full the money owed by Versidata for use of the Software, cash them both out of their rights to the Software, and/or provide them with an interest in the profits obtained from the use of the Software. At that time, the Software had a value of approximately $1,000,000.\nIn reliance on Strebeck's alleged representations in the September 13, 2002 conversation, which were confirmed in a follow up letter from Strebeck to Hafen, Plaintiffs refrained from repossessing the Software and permitted Strebeck to continue to use the Software. Plaintiffs contend that they have since learned that Strebeck did not have a deal with Reynolds &amp; Reynolds, he did not have a deal with Dealers Diversified, and he never intended to satisfy the obligations to them.\nPlaintiffs allege that in subsequent conversations directed to Hafen in Utah, Strebeck retracted his promises and refused to satisfy the obligations owed to them for the Software. Plaintiffs claim they have not received compensation from Strebeck for allowing him to use the Software. Plaintiffs further allege that because of the passage of time and the failure to update the Software, the Software has lost most of its value.\nPlaintiffs' Complaint alleges three causes of action against Strebeck: (1) intentional misrepresentation based upon Strebeck's knowingly false representations that induced Plaintiffs not to repossess their rights to the Software; (2) negligent misrepresentation based on Strebeck's reckless misrepresentations which caused Plaintiffs' not to exercise their rights; and (3) breach of fiduciary duty based on Strebeck's superior knowledge about the facts relating to the Software and his intended uses of the Software and his failure to act with reasonable care or in a manner that served the best interests of Plaintiff with regard to the Software.\n\nDISCUSSION\nStrebeck brings the present motion to dismiss arguing that this court lacks personal jurisdiction over him. Alternatively, if the court finds that it does have jurisdiction, Defendant moves for dismissal of each of Plaintiffs' claims, arguing: (1) Plaintiffs have not pled fraud with particularity under Rule 9(b) of the Federal Rules of Civil Procedure; (2) Plaintiffs have not adequately plead negligent misrepresentation and such claim is barred by the economic loss rule; and (3) Plaintiff's breach of fiduciary duty claim fails because Defendant has no such duty as a matter of Utah law.\nI. Personal Jurisdiction\nWhen a court's jurisdiction is contested, the plaintiff \"bears the burden of establishing personal jurisdiction over the defendant.\" OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir.1998); Electronic Realty Assoc. v. Vaughan, 897 F. Supp. 521, 521 *1260 (D. Kan.1995) (citing McNutt v. General Motors, 298 U.S. 178, 189, 56 S. Ct. 780, 80 L. Ed. 1135 (1936)). However, in the preliminary stages of litigation, the plaintiff's burden is only to establish a prima facie case that jurisdiction exists. Electronic Realty, 897 F.Supp. at 521. All factual disputes are resolved in favor of the plaintiff when determining the sufficiency of this showing. Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir.1995).\nIt is well settled that \"[t]o obtain personal jurisdiction over a nonresident defendant in a diversity action, a plaintiff must show that jurisdiction is legitimate under the laws of the forum state and that the exercise of jurisdiction does not offend the due process clause of the Fourteenth Amendment.\" Soma Medical Int'l v. Standard Chartered Bank, 196 F.3d 1292, 1295 (10th Cir.1999). There is no claim in this case that there is general jurisdiction over Defendant in the State of Utah. Therefore, this court must determine whether specific jurisdiction exists over Defendant under the facts of this case.\n\"[T]he evaluation of specific jurisdiction in Utah mandates a three-part inquiry: '(1) the defendant's acts or contacts must implicate Utah under the Utah long-arm statute; (2) a `nexus' must exist between the plaintiff's claims and the defendant's acts or contacts; and (3) application of the Utah long-arm statute must satisfy the requirements of federal due process.'\" National Petroleum Mkt'g, Inc. v. Phoenix Fuel Co., 902 F. Supp. 1459, 1465 (D.Utah 1995) (citations omitted). Plaintiffs' Complaint alleges that Strebeck \"transacted business\" and \"caused an injury\" in Utah under Utah's long-arm statute based on Strebeck's telephone conversations with Hafen, who was in Provo, Utah at the time, and Strebeck's correspondence directed to Hafen in Utah. Utah Code Ann. § 78-27-24(1), (3) (2002 &amp; Supp.2003). Utah's long-arm statute provides, in pertinent, part as follows:\nAny person ... who in person or through an agent does any of the following enumerated acts, submits himself ... to the jurisdiction of the courts of this state as to any claim arising out of or related to:\n(1) the transaction of any business within this state;\n\n. . . . .\n(3) the causing of any injury within this state whether tortious or by breach of warranty ...\nId.\nThe words \"transacting business\" means activities of a non-resident person in this state which \"affect persons or business within the state.\" Id. § 78-27-23(2) (2002). These words are liberally and expansively interpreted such that \"a person may transact business within the state despite an absence of physical presence in Utah.\" Nova Mud Corp. v. Fletcher, 648 F. Supp. 1123, 1126 (D.Utah 1986). In fact, the entire Utah long-arm statute is intended to be interpreted broadly \"so as to assert jurisdiction over nonresident defendants to the fullest extent permitted by the due process clause of the Fourteenth Amendment to the United States Constitution.\" Utah Code Ann. § 78-27-22; see also Starways, Inc. v. Curry, 980 P.2d 204, 206 (Utah 1999). Accordingly, the Utah Supreme Court \"frequently make[s] a due process analysis first because any set of circumstances that satisfies due process will also satisfy the long-arm statute.\" SII MegaDiamond, Inc. v. American Superabrasives Corp., 969 P.2d 430, 433 (Utah 1998). Therefore, the court will begin its analysis by determining whether the exercise of personal jurisdiction over Defendant under the facts of this case meets federal due process standards.\n*1261 Under due process standards, a \"court may exercise personal jurisdiction over a nonresident defendant only so long as there exist `minimum contacts' between the defendant and the forum state.\" World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980) (citations omitted). The \"minimum contacts\" necessary for specific personal jurisdiction are established \"`if the defendant has \"purposefully directed\" his activities at residents of the forum and the litigation results from alleged injuries that \"arise out of or relate to\" those activities.'\" OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir.1998) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)).\nStrebeck argues that his telephone calls and correspondence to Hafen in Utah are insufficient to establish the minimum contacts required under the Due Process Clause. \"It is well-established that phone calls and letters are not necessarily sufficient in themselves to establish minimum contacts.\" Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1077 (10th Cir.1995). However, \"telephone calls and letters may provide sufficient contacts for the exercise of personal jurisdiction. In proper circumstances, even a single letter or telephone call to the forum state may meet due process standards.\" Rambo v. American Southern In. Co., 839 F.2d 1415, 1418 (10th Cir.1988) (citations omitted). \"[T]he exercise of jurisdiction depends on the nature of those contacts.\" Id. \"The proper focus for analyzing these contacts is whether they represent an effort by the defendant to `purposefully avail [himself] of the privilege of conducting activities within the forum State.'\" Id. at 1419.\nThe cases make clear that it is the quality or nature of the communications that matter, not the quantity. In this case, Plaintiffs allege not only that there were several telephone calls between Strebeck and Hafen while Hafen was in Utah, but that the statements made during those telephone calls to Utah form the basis of their claims. Plaintiffs allege that Strebeck made intentional misrepresentations in his telephone conversations to Hafen that improperly induced Plaintiffs to forego repossessing their interests in the Software.\nIn Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1983), the Supreme Court held that a defendant's intentional tortious acts in Florida were sufficient to establish minimum contacts in California because the actions were aimed at California, and most of the harm to plaintiff's reputation and career occurred in California. Id. at 790, 104 S. Ct. 1482. However, cases since Calder have held that while an intentional tort suggests purposeful availment, it is only one factor in creating minimum contacts and \"the mere allegation of an intentional tort does not create jurisdiction in the plaintiff's home forum.\" Wallace v. Herron, 778 F.2d 391, 394-95 (7th Cir.1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986) (cited in Far West, 46 F.3d at 1079).\nThe Tenth Circuit has reviewed post-Calder decisions and concluded that \"the mere allegation that an out-of-state defendant has tortiously interfered with contractual rights or has committed other business torts that have allegedly injured a forum resident does not necessarily establish that the defendant possesses the constitutionally required minimum contacts.\" Far West, 46 F.3d at 1079. In determining purposeful availment, the court must \"undertake a particularized inquiry\" and examine \"`prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing.'\" Id. The court should also \"examine the contacts created *1262 by the out-of-state defendant in committing the alleged tort.\" Id. at 1079-80.\nIn conducting the particularized inquiry for purposes of purposeful availment in this case, it is undisputed that there was no contract between the parties. It is unclear where the contract that the parties were negotiating would have been executed or performed. Plaintiffs do not dispute that Reed told Strebeck to contact Hafen. They also do not dispute that although some negotiations were obviously occurring between Hafen and Strebeck while Hafen was in Utah, negotiations were also taking place in other jurisdictions.\nStrebeck argues that even though he communicated with Hafen in Utah, the only contact with Utah is the fact that Hafen resides in the state and such a contact is mere happenstance. In Reynolds, the court recognized that the choice of a residence is a unilateral one that will not allow a plaintiff to establish jurisdiction over a non-forum defendant absent other availing factors. Id. at 1118-19. The Reynolds court, which was addressing the intentional tort of defamation, distinguished the defamation claim in its case from the defamatory publication in Calder because the alleged defamatory press release was not published or circulated in the forum state.\nUnlike the contacts in Reynolds, however, in this case, Plaintiffs' Complaint specifically identifies one allegedly fraudulent telephone call Strebeck placed to Hafen in Utah, states that Strebeck made other fraudulent calls to Hafen in Utah, and alleges that Strebeck sent a letter to Hafen in Utah confirming the alleged misrepresentations that he made in the telephone calls. These contacts form the basis of Plaintiffs claims.\nIn stating that courts should examine contacts created by the nonresident defendant in committing the alleged tort, the Tenth Circuit cited to several post-Calder cases which, although coming to different holdings, focused on the nature of the contacts. See, e.g., Reynolds v. International Amateur Athletic Fed'n, 23 F.3d 1110 (6th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 423, 130 L. Ed. 2d 338 (1994); Coblentz GMC/Freightliner Inc. v. General Motors Corp., 724 F. Supp. 1364 (M.D.Ala.1989).\nIn Coblentz GMC/Freightliner Inc. v. General Motors Corp., 724 F. Supp. 1364 (M.D.Ala.1989), one of the cases cited by the Tenth Circuit, the court stated that \"when a defendant intentionally takes some action with the knowledge that the result will be harm to a specific victim in another state, the picture involves more than mere foreseeability or the likelihood that fortuitous and undirected conduct will have an effect in that state.\" Id. at 1368. The court further stated that \"[w]hen the conduct is intentional and is directed at a victim in another state, the defendant may be held to have expected its conduct to have an effect in that state, and further to have expected that the victim will bring suit for redress there.\" Id.\nConstruing the allegations of the Complaint in favor of Plaintiff as this court must do, although Strebeck may not have sought out Hafen in Utah, he knew when he made the alleged misrepresentations to Hafen in Utah that he was directing his conduct to a specific person in this state. He further knew that he was making alleged misrepresentations that would induce Hafen not to pursue his rightful remedies, and that such action would cause Hafen harm. Because Strebeck's representations in the telephone calls form the basis of Plaintiffs' claims, this court concludes that they establish the requisite minimum contacts to satisfy due process.\nIf the defendant's activities create sufficient minimum contacts, the court then considers \"whether the exercise of personal jurisdiction over the defendant offends *1263 `traditional notions of fair play and substantial justice.'\" OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir.1998) (quoting Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 113, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987)). Both the United States Supreme Court and the Utah Supreme Court have recognized that the central inquiry in making such a determination is \"the relationship of the defendant, the forum, and the litigation to each other.\" Mallory Eng'g v. Ted R. Brown &amp; Assoc., 618 P.2d 1004, 1007 (1980); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S. Ct. 1473, 1478, 79 L. Ed. 2d 790 (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977)). \"In Keeton, the Court further indicated that the `fairness' of requiring a defendant who is not a resident of the forum state to appear in the forum depends in part on the expressed public policy interest of the forum state, noting the particular interest a forum state in connection with tort claims.\" Berrett v. Life Ins. Co. of Southwest, 623 F. Supp. 946, 951 (D.Utah 1985).\nStrebeck again argues that Utah's connection to the case is a mere fortuity and there is no indication that Utah played any role in the party's past dealing or that it would have any role in their continuing relationship had any deal come to fruition. Strebeck asserts it would not comport with notions of fair play to require him to defend himself in a forum in which he has only a slight connection. Plaintiffs, in contrast, argue that the balance of equities weigh in favor of finding jurisdiction over Defendant in Utah. Plaintiffs assert that Plaintiff is located in an adjoining state, has obtained counsel here, and Plaintiffs wrongful acts were directed to this state. Plaintiffs contend that Strebeck should not be allowed to make harmful misrepresentations to a Utah resident without the burden of answering for his wrongful acts in this state.\nIn assessing notions of fair play and substantial justice, this court recognizes that Utah residents should be afforded a full opportunity to address injuries perpetrated on them by out-of-state residents in Utah courts. There is a substantial and fundamental link between Plaintiff's claims and Strebeck's contacts with Utah. The claims arise directly out of his contacts with Hafen in Utah, wherein Strebeck allegedly made misrepresentations to Hafen in order to induce Plaintiffs to forego their right to foreclose on the Software. But for the fact of Strebeck's representations via telephone and letter to Utah, there would be no cause of action. Moreover, Strebeck was capable of conducting business with Hafen in Utah without undue hardship. Therefore, the court concludes that the exercise of jurisdiction over Defendant in this court comports with traditional notions of fair play and substantial justice. Based on the above reasoning, the court concludes that jurisdiction is proper in this court under due process standards and Utah's long-arm statute. Accordingly, Defendant's motion to dismiss for lack of personal jurisdiction is denied.\nIn the event that this court found jurisdiction over Strebeck, Strebeck also brought a motion to dismiss each of Plaintiffs' claims. The court will address each claim in turn.\nII. Claim 1: Intentional Misrepresentation\nStrebeck argues that Plaintiffs have not pled their fraud claim with the particularity required under Rule 9(b) of the Federal Rules of Civil Procedure. Rule 9(b) \"requires a plaintiff to identify the time, place, and content of each allegedly fraudulent representation or omission, to identify the particular defendant responsible for it, and to identify the consequence thereof.\" *1264 Karacand v. Edwards, 53 F. Supp. 2d 1236, 1241 (D.Utah 1999).\nStrebeck contends that Plaintiffs allegations do not specify a time, a place, or the content of any fraudulent representation or omission and that the consequences of Strebeck's alleged fraud are stated in only conclusory fashion. Strebeck also asserts that Plaintiffs have failed to clearly identify a presently existing material fact which Strebeck allegedly misrepresented or omitted. Therefore, Strebeck argues that Plaintiffs have failed to plead the necessary elements of a fraud claim. Armed Forces Ins. Exch. v. Harrison, 70 P.3d 35, 40 (Utah 2003).\nAlthough Plaintiffs have not listed all of the dates and times of each telephone call between the parties, they have alleged one date that Strebeck made a telephone call, that the call was made to Hafen, that the content of the calls included misrepresentations regarding deals that Strebeck had not really entered into, and that he made such representations to induce Plaintiffs not to foreclose on their rights to the Software. Plaintiffs also allege that their rights in the Software lost value because of the delay caused by Defendant's alleged misrepresentations. The allegation that Strebeck stated he had entered into deals with certain parties regarding the software when he allegedly had not is enough to state the misrepresentation of a presently existing fact.\nAlthough Plaintiffs state the time, place, and content for only one telephone call, it is enough to state a claim for fraud under Rule 9(b) with respect to that telephone call. To the extent that there is other conduct between the parties or other dealings related to the fraudulent representations made in that call, Plaintiffs need not plead it with particularity unless it contains additional fraudulent representations. If there are other fraudulent representations that Plaintiffs intend to rely upon in this case, they should timely amend their Complaint to provide Defendant notice. However, the court concludes that Plaintiffs' Complaint sets forth the time, place, and representations made by Strebeck sufficiently under Rule 9(b) to state a claim of fraud. Accordingly, Defendant's motion to dismiss Plaintiffs' first claim is denied.\nIII. Claim 2: Negligent Misrepresentation\nStrebeck contends that Plaintiffs have failed to allege the necessary elements of a negligent misrepresentation claim under Utah law and that the claim is barred by the economic loss rule. Utah acknowledges the tort of negligent misrepresentation, which \"provides that a party injured by reasonable reliance upon a second party's careless or negligent misrepresentation of a material fact may recover damages resulting from that injury when the second party had a pecuniary interest in the transaction, was in a superior position to know the material facts, and should have reasonably foreseen that the injured party was likely to rely upon the fact.\" Price-Orem Inv. Co. v. Rollins, Brown &amp; Gunnell, Inc., 713 P.2d 55, 59 (Utah 1986); Klinger v. Kightly, 889 P.2d 1372, 1378 (Utah App.1995).\nAlthough Plaintiffs have adequately pled many of these elements and some reasonableness determinations appear to be questions of fact that would be inappropriate to rule on at a motion to dismiss stage, the initial inquiry for this court to make is whether Strebeck owes a duty to Plaintiffs. In order to state any claim of negligence, the defendant must owe a duty to Plaintiff. Plaintiffs allege in their Complaint that Strebeck had a duty to refrain from making statements that he knew or should have known were not true.\n*1265 \"The issue of whether a duty exists is entirely a question of law to be determined by the court.\" Ferree v. State, 784 P.2d 149, 151 (Utah 1989). Courts consider many factors, none of which is dispositive, in determining when a duty runs between parties. See e.g., Price-Orem Inv. Co. v. Rollins, Brown &amp; Gunnell, Inc., 713 P.2d 55, 60 (Utah 1986) (foreseeability); Christenson v. Commonwealth Land Title Ins. Co., 666 P.2d 302, 305 (Utah 1983) (privity of contract); Ellis v. Hale, 13 Utah 2d 279, 373 P.2d 382, 384-85 (1962) (statutory obligations); House v. Armour of Am., Inc., 886 P.2d 542, 549-50 (Utah App.1994) (whether user possesses special knowledge, sophistication, or expertise). Particularly in the realm of tort law, \"[t]he duty concept ... is a policy determination.\" DeBry, 835 P.2d at 1003-04 (\"Duty is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.\") (citations omitted).\nThis case presents the issue of whether one commercial entity has a duty to refrain from making negligent misrepresentations to another in the negotiation of a contract. While Utah cases have discussed circumstances where certain defendants may owe a duty to refrain from making negligent misrepresentations to certain plaintiffs, this court has not found a case addressing negligent misrepresentation in the context of two commercial entities during negotiations of a contract.\nIn Safeco Insurance Co. v. Dain Bosworth, Inc., 531 N.W.2d 867, 870 (Minn.App.1995), the Minnesota Court of Appeals faced the same situations with regard to the state of the law in Minnesota. In looking to other jurisdictions for guidance, the court held that \"where adversarial parties negotiate at arm's length, there is no duty imposed such that a party could be liable for negligent representations. In these situations, the injured party's remedy is to sue either in contract or to sue for intentional misrepresentation.\" Id. The court concluded that the defendant did not owe Plaintiff a duty beyond the duty of honesty. Id. Therefore, although there is an inherent duty to be honest and not state intentional misrepresentations, there is no similar duty with respect to negligent misrepresentations when the parties are dealing at arm's length.\nThe Minnesota court relied on cases from the states of Iowa, Oregon, and Illinois. These cases \"distinguish misrepresentations made by persons engaged in the business or profession of supplying guidance to others from misrepresentations made during commercial transactions where the parties are dealing at arm's length.\" Id. (citing Freeman v. Ernst &amp; Young, 516 N.W.2d 835, 838 (Iowa 1994); Onita Pac. Corp. v. Trustees of Bronson, 315 Or. 149, 843 P.2d 890, 896-97 (1992) (professionals such as attorneys, engineers, architects, real estate brokers, and primary insurers owe a duty for purposes of negligent misrepresentation, but \"adversarial parties negotiating at arm's length to further their own economic interests\" do not owe such a duty); Moorman Mfg. v. National Tank, 91 Ill. 2d 69, 61 Ill. Dec. 746, 435 N.E.2d 443, 452 (1982) (limiting actions for negligent misrepresentation to situations where \"one who is in the business of supplying information for the guidance of others in their business transactions makes negligent misrepresentations\"); Alfred Hill, Damages for Innocent Misrepresentation, 73 Colum.L.Rev. 679, 685-86 (1973)). The Eighth Circuit Court of Appeals, applying Iowa law, has also concluded that parties to a business merger deal do not have a duty to one another for purposes of negligent misrepresentation. See Budget Mktg., Inc. v. Centronics Corp., 927 F.2d 421, 428-29 (8th Cir.1991).\n*1266 This court finds that Utah courts would adopt a similar approach. Therefore, the court concludes that because the parties were both commercial entities negotiating a deal at arm's length, Strebeck did not have a duty to Plaintiffs with respect to negligent misrepresentations, only intentional misrepresentations.\nStrebeck further argues that Plaintiffs' negligent misrepresentation claim is barred by the economic loss rule. Although the court has already concluded that Plaintiffs have not stated a claim of negligent misrepresentation, the court concludes that based on that lack of duty, the claim would also be precluded by the economic loss rule. The economic loss rule prevents a party from claiming economic damages \"`in negligence absent physical property damage or bodily injury.'\" SME Indus., Inc. v. Thompson, Ventulett, Stainback and Assoc., 28 P.3d 669, 680 (Utah 2001). The economic loss rule under Utah law is an evolving doctrine. \"The economic loss rule is a judicially created doctrine that marks the fundamental boundary between contract law, which protects expectancy interests created through agreement between the parties, and tort law, which protects individuals and their property from physical harm by imposing a duty of reasonable care.\" Id. The Utah Supreme Court has expressly adopted the interpretation of the economic loss rule provided by the Colorado Supreme Court in Grynberg v. Agric. Tech. Inc., 10 P.3d 1267, 1269 (Colo.2000), which states:\n\"The proper focus in an analysis under the economic loss rule is on the source of the duties alleged to have been breached. Thus, our formulation of the economic loss rule is that a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such a breach absent an independent duty of care under tort law.\"\nHermansen v. Tasulis, 48 P.3d 235, 240 (Utah 2002). Therefore, \"[w]hen an independent duty exists, the economic loss rule does not bar a tort claim `because the claim is based on a recognized independent duty of care and thus does not fall within the scope of the rule.'\" Id. (citation omitted).\nAlthough the rule appears to have begun as only a means to deter parties to a contract from seeking tort remedies in addition to the remedies available under their contract, cases from the Utah Supreme Court have also applied the economic loss rule to parties who were not parties to a contract. In American Towers Owners Ass'n v. CCI Mech., Inc., 930 P.2d 1182 (Utah 1996), the court barred condominium homeowners from collecting economic damages from contractors for faulty construction in the plumbing and mechanical systems of the building. Id. at 1192. The homeowners were not parties to any of the construction contracts and had no enforceable rights as third-party beneficiaries. Id. at 1187. However, the court barred their claim under the economic loss rule, finding that any other holding would \"impose the [homeowners'] economic expectations upon parties whom the [homeowners] did not know and with whom they did not deal and upon contracts to which they were not a party.\" Id. at 1192.\nIn Fennell v. Green, 77 P.3d 339, 344 (Utah Ct.App.2003), the Utah Court of Appeals barred a homeowner's claim against a developer for negligent misrepresentation. The homeowner did not have a contract with the developer, and the court found that \"the economic loss rule applies to prevent the imposition of `economic expectations' on non-contracting parties.\" Id. The Fennell court factually distinguished Hermansen on the grounds that the defendant in Hermansen had an independent *1267 duty to plaintiffs as real estate professionals.\nIn this case, there is no contract between the parties. Plaintiffs' negligent misrepresentation claim arises out of the parties' negotiations of a contract that was never executed. Plaintiffs allege in their Complaint that Strebeck had a duty to refrain from making statements that he knew or should have known were not true. As the court found above, however, there is no duty with respect to negligent misrepresentation when two commercial entities are engaged in arm's-length contract negotiations. Plaintiffs also allege a separate cause of action claiming that Defendant had a fiduciary duty to them. However, as will be discussed below, the court does not find that a fiduciary duty exists between parties negotiating a deal at arms-length. See Gold Standard, Inc. v. Getty Oil Co., 915 P.2d 1060, 1064 (Utah 1996). Because Strebeck had no independent duty to Plaintiffs, Plaintiffs negligent misrepresentation claim is also barred by the economic loss rule because it prevents the imposition of economic expectations on non-contracting parties. Therefore, the court grants Defendant's motion to dismiss Plaintiff's claim for negligent misrepresentation.\nIV. Claim 3: Fiduciary Duty\nStrebeck argues that he had no fiduciary duty as a matter of Utah law. A fiduciary or confidential relationship will be found under Utah law only \"when one party, having gained the trust and confidence of another, exercises extraordinary influence over the other party.\" Gold Standard Inc. v. Getty Oil Co., 915 P.2d 1060, 1064 (Utah 1996). When \"the parties deal at arm's length or in an adversarial relationship, no fiduciary relationship can be said to exist.\" Id.\nStrebeck contends that the nature of his relationship with Plaintiffs was only negotiations to enter into a contract. Plaintiffs argue that Strebeck's promise to them regarding an interest in the profits obtained from the use of the Software was, in essence, offering a joint venture arrangement. Plaintiffs contend that as a result of this relationship, Strebeck owed a duty to Plaintiffs to act with reasonable care, in good faith, and in a manner that would serve the interest of Plaintiffs with regard to the Software.\nTypically, \"fiduciary obligations inhere ... where two entities are engaged in a joint venture where they share profits and risks or where the entities jointly own or control assets.\" KBQ, Inc. v. du Pont, 6 F. Supp. 2d 94, 100 (D.Mass.1998). However, Plaintiffs acknowledge that the nature of the relationship was not contractual. Under Utah law, a joint venture requires the existence of an agreement. Bassett v. Baker, 530 P.2d 1, 2 (Utah 1974). It is undisputed that no agreement was ever reached between the parties. The parties were merely negotiating an agreement at arm's-length to become a joint venture. Therefore, the court concludes that no fiduciary relationship existed between the parties during the period of negotiations. Accordingly, Defendant's motion to dismiss Plaintiffs' claim for breach of fiduciary duty is granted.\n\nCONCLUSION\nFor the reasons stated above, Defendant's Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. Specifically, Defendant's motion to dismiss based on lack of personal jurisdiction is DENIED; Defendant's Motion to Dismiss Plaintiffs' intentional misrepresentation claim is DENIED; Defendant's Motion to Dismiss Plaintiffs' negligent misrepresentation claim is GRANTED; and Defendant's *1268 Motion to Dismiss Plaintiffs' breach of fiduciary duty is GRANTED.\n", "ocr": false, "opinion_id": 2333112 } ]
D. Utah
District Court, D. Utah
FD
Utah, UT
2,427,282
Crow
"2004-04-29"
false
sanders-ex-rel-rayl-v-kansas-dept-of-social-and-rehabil-services
null
Sanders Ex Rel. Rayl v. KANSAS DEPT. OF SOCIAL AND REHABIL. SERVICES
null
null
null
null
null
null
null
null
null
null
null
null
16
Published
null
null
[ "317 F. Supp. 2d 1233" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 767, "opinion_text": "\n317 F. Supp. 2d 1233 (2004)\nStuart SANDERS, by and through his next friend and mother, Jeannine RAYL, Plaintiff,\nv.\nKANSAS DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, Janet Schalansky, in her official capacity, Laura Howard, in her official capacity, and Robert Day, in his official capacity., Defendants.\nNo. 03-4075-SAC.\nUnited States District Court, D. Kansas.\nApril 29, 2004.\n*1234 *1235 *1236 *1237 James A. Passamano, Sufian &amp; Passamano LLP, Houston, TX, Scott A. Letts, *1238 Kansas Advocacy &amp; Protective Services, Inc., Topeka, KS, for Plaintiff.\nDanny J. Baumgartner, Carl W. Ossmann, Topeka, KS, for Defendant.\n\nMEMORANDUM AND ORDER\nCROW, District Senior Judge.\nThis case comes before the court on defendants' motion to dismiss the case for lack of standing, lack of subject matter jurisdiction, and failure to state a claim upon which relief can be granted.\nPlaintiff is an adult male who has chronic progressive multiple sclerosis, quadriplegia, seizure disorder and pulmonary dysfunction, in addition to other physical conditions. Dk. 14, ¶ 10. This case had its genesis when the Kansas Department of Social and Rehabilitation Services (\"SRS\"), a Medicaid agency, denied plaintiff's request for a \"Vest Airway Clearance System\" (\"the Vest\").\nThereafter, plaintiff brought this suit, naming as defendants not only SRS, but also the following individuals in their official capacities: Janet Schalansky, the Secretary of SRS; Laura Howard, the Assistant Secretary of the Health Care Policy Division of SRS; and Robert Day, the Director of Medical Policy and Medicaid Director of Health Care Policy Division of SRS. The case alleges violations of the ADA, the Rehabilitation Act, the Medicaid Act, and 42 U.S.C. § 1983.\n\nI. BACKGROUND\nPlaintiff participates in the Kansas Medicaid Program, and in the home and community-based waiver services. See 42 U.S.C. § 1396n. Programs approved under this subsection are waived from many Medicaid strictures, id. § 1396n(c)(3), including that medical assistance be made available to all individuals equally, see id. § 1396a(a)(10)(B). Plaintiff's physician requested pre-authorization for Medicaid to cover the Vest, which the court understands to be a piece of medical equipment resembling a clothing vest which transmits rapid pulsations designed to mobilize secretions in one's chest. SRS, a Medicaid agency, denied the request. The basis for SRS's denial is disputed. Plaintiff alleges it was because he is not institutionalized, does not have cystic fibrosis, and is not under 21 years of age. Defendants allege it was because the Vest was not shown to be medically necessary.\nPlaintiff unsuccessfully requested reconsideration of the denial, then appealed the denial to the state administrative Hearing Officer, who affirmed. Plaintiff pursued a further appeal to the Kansas State Appeals Committee, which also affirmed the agency decision to deny payment for the Vest. See K.S.A. § 77-527(a)(2)(B); § 75-3306; K.A.R. 30-7-78. Plaintiff did not seek review in the district court of these administrative decisions, see K.S.A. § 77-601, choosing instead to file this case in federal court.\nPlaintiff alleges that defendants violated the Americans with Disabilities Act (\"ADA\"), 42 U.S.C. § 12101, et seq., § 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796, the equal protection and due process clauses of the United States Constitution, and various provisions of the Medicaid Act alleged to be actionable via 42 U.S.C. § 1983.\n\nII. MOTION FOR ORAL ARGUMENT\nPlaintiff has moved the court to grant oral argument on defendants' motions to dismiss, alleging that the host of immunity issues \"require subtle distinctions that are more easily addressed in oral hearing.\" Dk. 26, p. 2. The court does not believe that oral argument would be of material assistance in deciding these motions, so denies plaintiff's motion for oral argument.\n\n\n*1239 III. NEXT FRIEND STANDING\nAs a threshold matter, the court must determine whether plaintiff's mother may assert the claims on behalf of her adult son as his next friend, as she attempts to do.\nFederal Rule of Civil Procedure 17(c) provides that \"an infant or incompetent person who does not have a duly appointed representative may sue by next friend or by a guardian ad litem....\" The parties agree that Stuart Sanders, whose amended complaint alleges that he is 51 years old, is not an infant. The sole issue is therefore whether he is an \"incompetent person\" within the meaning of that term in this rule.\nIt is uncontested that Stuart Sanders has not been adjudicated incompetent by a state court. Nonetheless, plaintiff contends that he is in fact incompetent, in stating:\nBecause of communication and physical impairments caused by his medical conditions, Stuart Sanders cannot independently represent his interests in this suit against the defendants. For this reason, this action is brought by Stuart Sanders through his next friend and mother, Jeannine Rayl. Stuart Sanders resides with Jeannine Rayl; she is familiar with his medical needs; and she is familiar with the factual issues involved in this suit.\nDk. 14, p. 3, ¶ 5. No other relevant facts are included in the record.\nDefendants Schalansky, Howard and Day assert that Jeannine Rayl cannot serve as \"next friend\" to her adult son because under Rule 17(c), an adult must be adjudicated incompetent by the relevant state court before a \"next friend\" may bring suit on his behalf.\nThe term \"incompetent person\" in Rule 17(c) refers to \"a person without the capacity to litigate.\" Thomas v. Humfield, 916 F.2d 1032, 1035 (5th Cir.1990), aff'd, 32 F.3d 566 (5th Cir.1994), cert. denied, 513 U.S. 1167, 115 S. Ct. 1138, 130 L. Ed. 2d 1098 (1995). Next friends appear in court on behalf of persons who are unable to seek relief themselves, usually because of mental incompetence. Whitmore v. Arkansas, 495 U.S. 149, 162, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990).\nThe court believes that its power to appoint under Rule 17(c) should not be used to circumvent the mandate in Rule 17(b) to observe state law. See Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 19 F. Supp. 2d 567, 575 (N.D.W.Va.1998) (directing plaintiffs to substitute the real parties in interest in lieu of the inappropriately named next friends); Wolfe by Hedges v. Bias, 601 F. Supp. 426, 427-28 (S.D.W.Va.1984). The court nonetheless recognizes that it is (not bound by state procedures for determining competency, and that there may be an occasion which compels a federal court to make a finding of incompetence, independent of a state court). See e.g., Thomas v. Humfield, 916 F.2d 1032, 1035 (5th Cir.1990); 6A Charles Alan Wright, Arthur R. Miller &amp; Mary Kay Kane, Federal Practice and Procedure § 1570, at 503 (2d ed.1990).\nThe court agrees that defendants' approach reflects the better practice because it avoids the risk of inconsistent federal and state court adjudications, assures the parties of the application of well-established and uniform procedural standards, and lends certainty to the process by which incompetence may be found. The court finds that plaintiff fails to satisfy the requirements of Rule 17(c) for suit by a next friend because the record before the court fails to show incompetence and plaintiff has never been adjudicated incompetent. Cf, Lichtenhahn v. Bureau of Land Management, 72 F.3d 138, 1995 WL 749704, *1 (10th Cir. Dec.19, 1995) (Table). *1240 The court would ordinarily direct the plaintiff to substitute the real party in interest in lieu of the inappropriately named next friend, but for the reasons set forth below, such an order would be futile.\n\nIV. JURISDICTIONAL ISSUES\nThe court next examines the host of jurisdictional issues raised by the parties. These include the Rooker-Feldman doctrine, the Younger abstention doctrine, failure to exhaust administrative remedies, and Eleventh Amendment immunity.\n\nRooker-Feldman doctrine\nThe court initially examines and rejects defendants' claim that plaintiff's case is barred by the Rooker-Feldman doctrine. That doctrine generally precludes federal court review of state court judgments.\nThe Tenth Circuit has recently reaffirmed that the Rooker-Feldman doctrine does not apply to decisions of administrative agencies. \"The Rooker-Feldman doctrine applies only to judicial proceedings. See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983).\" Woodard v. Jefferson County, 18 Fed.Appx. 706, 717, 2001 WL 997925, *10 (10th Cir. Aug.31, 2001). Because it is undisputed that no state court judgment has been reached on the issues presented to this court, this doctrine is inapplicable.\n\nYounger abstention\nDefendants additionally seek application of the Younger abstention doctrine.\nThe Younger doctrine, as developed, requires abstention when federal proceedings would (1) interfere with an ongoing state judicial proceeding (2) that implicates important state interests and (3) that affords an adequate opportunity to raise the federal claims. (citations omitted). A case warrants Younger abstention only if each of these three criteria are satisfied.\nJ.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1291 (10th Cir.1999). The court finds this doctrine inapplicable because there is no ongoing state judicial proceeding with which any proceedings in this court could potentially interfere.\n\nExhaustion of Administrative Remedies\nDefendants next contend that this suit is barred because plaintiff failed to seek judicial review in state court of SRS's final administrative action. See Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. § 77-601 et seq.[1] Defendants have not shown, however, that each cause of action asserted by plaintiff falls within the jurisdiction of the state agency or that judicial review pursuant to the KJRA is the exclusive remedy for the violations alleged in this case.\nDefendants additionally contend that plaintiff's failure to initially request the Vest from Medicare instead of from Medicaid bars this suit. Plaintiff counters by alleging that he did request the Vest from Medicare. This factual dispute is not properly decided on a motion to dismiss, and thus provides no basis for dismissal.\n\nEleventh Amendment immunity\nDefendants next claim the protection of Eleventh Amendment immunity from all of plaintiff's claims. This issue challenges the court's subject matter jurisdiction, and is generally considered as a Rule 12(b)(1) motion to dismiss. Burden of proof\nDefendants contend that plaintiff bears the burden to show defendants lack Eleventh Amendment immunity, as part of *1241 plaintiff's burden to establish the propriety of federal court jurisdiction. The court disagrees, and joins those courts holding that the defendant asserting Eleventh Amendment immunity bears the burden of proof on that issue. See Holt ex rel. Holt v. Wesley Medical Center, LLC, 2002 WL 1067677 (D.Kan. Mar 27, 2002); Teichgraeber v. Memorial Union Corp. of Emporia State University, 946 F. Supp. 900, 903 (D.Kan.1996) (finding that Eleventh Amendment immunity should be treated as an affirmative defense and must be proved by the party asserting it).\n\nGeneral Rule\nThe Eleventh Amendment grants the states absolute immunity from suits brought by individuals in federal court. Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974). It guarantees that \"nonconsenting States may not be sued by private individuals in federal court.\" Bd. of Trustees of Uni. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001). When the state itself is a named defendant, the Eleventh Amendment bar operates regardless of the legal or equitable nature of the relief sought. Hensel v. Office of Chief Administrative Hearing Officer, 38 F.3d 505, 509 (10th Cir.1994). The same is true for suits against a state agency, regardless of the form of relief sought. ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1187 (10th Cir.1998), cert. denied, 525 U.S. 1122, 119 S. Ct. 904, 142 L. Ed. 2d 902 (1999). Thus the Eleventh Amendment doctrine of sovereign immunity bars actions for damages against a State, its agencies and its officials acting in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 165-167, n. 14, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985); Ambus v. Granite Bd. of Educ., 995 F.2d 992, 994 (10th Cir.1993).\n\nExceptions\nThere are, of course, exceptions to the general rule of immunity, as the Tenth Circuit has recently reviewed, in stating:\nAlthough States are generally immune from suit brought by private individuals, there are three well-established exceptions to the bar. First, the States may consent to suit, waiving immunity. Second, Congress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority. Finally, under the doctrine announced in Ex Parte Young, an individual seeking only prospective injunctive relief for ongoing violations of federal law may bring suit against state officials in federal court.\nChaffin v. Kansas State Fair Board, 348 F.3d 850, 866 (10th Cir.2003) (internal citations and quotations omitted). The court thus examines whether any of these exceptions applies.\n\nNo Waiver or Abrogation of Section 1983 claims\nAlthough 42 U.S.C. § 1983 immunity can be waived, the State of Kansas has not done so in this case, nor has its immunity been abrogated for § 1983 suits. See Bock Associates v. Chronister, 951 F. Supp. 969 (D.Kan.1996) (holding that Eleventh Amendment barred federal district court from hearing § 1983 suit against Secretary of Kansas SRS). See generally Elephant Butte Irr. Dist. v. Department of Interior, 160 F.3d 602, 607 (10th Cir.1998), cert. denied, 526 U.S. 1019, 119 S. Ct. 1255, 143 L. Ed. 2d 352 (1999).\n\nNo Waiver or Abrogation of ADA claims\nThe ADA's attempt to waive sovereign immunity has been rejected. See Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001) (invalidating waiver of states' *1242 immunity under Title I of ADA). Nor has the state's immunity been abrogated for suits under Title II of the ADA. Thompson v. Colorado, 278 F.3d 1020, 1034 (10th Cir.2001) (finding Title II of ADA \"is not a valid abrogation of the states' Eleventh Amendment immunity\"), cert. denied, 535 U.S. 1077, 122 S. Ct. 1960, 152 L. Ed. 2d 1021 (2002); Buck v. Industrial Com'n of Utah, 51 Fed.Appx. 832, 835, 2002 WL 31516609, *2 (10th Cir. Nov.13, 2002).\n\nWaiver of Rehabilitation Act claims\nCongress has manifested a clear intent to condition participation in the programs funded under the Rehabilitation Act on a State's consent to waive its constitutional immunity. See 42 U.S.C. § 2000d-7(a)(1) (\"A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal Court for a violation of section 504 of the Rehabilitation Act ...\"). The Tenth Circuit has recently held that \"by accepting federal financial assistance as specified in 42 U.S.C. § 2000d-7, states and state entities waive sovereign immunity from suit.\" Robinson v. Kansas, 295 F.3d 1183, 1190 (10th Cir.2002) (finding Kansas had so waived).\nDefendants allege that Robinson was decided in error because Congress did not have the power to abrogate a state's sovereign immunity through a power granted by Article I of the United States Constitution, such as the spending clause, citing Seminole Tribe v. Florida, 517 U.S. 44, 73, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996). Robinson, however, was decided on the basis of a state's waiver of sovereign immunity, rather than on the basis of Congress's abrogation thereof, thus the court finds defendants' criticism misplaced.\nThe court notes, however, that the waiver applies solely to § 504 violations, and, contrary to plaintiff's assertions, does not waive immunity as to any other claims in the suit.[2]\nSee Lane v. Pena, 518 U.S. 187, 116 S. Ct. 2092, 135 L. Ed. 2d 486 (1996). Additionally, although the statute specifies that legal and equitable remedies are available in such a suit \"to the same extent as ... in the suit against any public or private entity other than a State,\" such language does not reveal congressional intent to equalize remedies available against all defendants for Rehabilitation Act violations, so that states, like private entities, are subject to monetary damages for such violations. See Lane, 518 U.S. at 197-98, 116 S. Ct. 2092.\n\nEx parte Young exception to Eleventh Amendment immunity\nPlaintiff additionally invokes the Ex parte Young exception to Eleventh Amendment immunity. See Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908).\nUnder this doctrine, \"the Eleventh Amendment generally does not bar a suit against a state official in federal court which seeks only prospective equitable relief for violations of federal law, even if the state is immune.\" Elephant Butte Irrigation Dist. of N.M. v. Department of the Interior, 160 F.3d 602, 607 (10th Cir.), cert. denied, 526 U.S. 1019, 119 S. Ct. 1255, 143 L. Ed. 2d 352 (1999). See Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. *1243 3099, 87 L. Ed. 2d 114 (1985). The reasoning behind the Ex Parte Young exception is that if an official has performed his duties in a way that contravenes either the Constitution or a federal law, he does so outside the cloak of state authority, thus a suit against him does not impact the State in its sovereign or governmental capacity. Chaffin, 348 F.3d at 866.\nThe Ex parte Young doctrine is narrow, applies only to prospective relief, and \"does not permit judgments against state officers declaring that they violated federal law in the past.\" Puerto Rico Aqueduct &amp; Sewer Auth. v. Metcalf &amp; Eddy, Inc., 506 U.S. 139, 146, 113 S. Ct. 684, 121 L. Ed. 2d 605 (1993). See Roe No. 2 v. Ogden, 253 F.3d 1225, 1233 (10th Cir.2001); Clark v. Stovall, 158 F. Supp. 2d 1215 (D.Kan.2001), aff'd 2002 WL 798259 (10th Cir. Apr.30, 2002) (Table), cert. denied, 537 U.S. 948, 123 S. Ct. 412, 154 L. Ed. 2d 292 (2002).\n\nFour-part test\nThe Tenth Circuit follows a four-part test to determine whether the Ex Parte Young doctrine should be applied:\nFirst, we determine whether the action is against state officials or the state itself. Second, we look at whether the alleged conduct of the state officials constitutes a violation of federal law. Third, we assess whether the relief sought is permissible prospective relief or analogous to a retroactive award of damages impacting the state treasury. Finally, we analyze whether the suit rises to the level of implicating \"special sovereignty interests.\"\nChaffin, 348 F.3d at 866, quoting Robinson v. Kansas, 295 F.3d 1183, 1191 (10th Cir.2002). See ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1187-90 (10th Cir.1998) (analyzing Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997) and Seminole Tribe v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996)). The court finds it necessary to address only two related factors: the nature of the alleged violation, and the nature of the relief sought.\nThis doctrine requires that there \"be an ongoing violation of federal law\" and that it apply \"only to prospective relief\" and not \"to obtain a declaration that a state officer has violated a plaintiff's federal rights in the past.\" Buchwald v. University of New Mexico School of Medicine, 159 F.3d 487, 495 (10th Cir.1998). The requirement that the relief sought be permissible prospective relief not analogous to a retroactive award of damages impacting the state treasury is \"not a game in semantics\"; rather, the \"overriding question is ... whether the relief will remedy future rather than past wrongs.\" Chaffin, 348 F.3d at 867, quoting Elephant Butte, 160 F.3d at 611.\nPlaintiff's amended complaint expressly seeks damages and retrospective relief against SRS, see e.g., Dk. 14, ¶¶ 31, 33, 44, 45, 47 and 50, but is careful to state only prospective equitable and declaratory relief against the individual defendants in their official capacities, see e.g., ¶ ¶ 28, 43, 45. It states:\nSanders seeks to enforce the Medicaid Act through prospective equitable and declaratory relief against Janet Schalansky, Laura Howard, and Robert Day, in their official capacities for their ongoing violation of federal law.\nDk. 14, para. 28.\nThis and similar recitations in the amended complaint include the proper terminology, yet lack substance. The court has searched in vain for some manner in which any alleged violation of law by defendants could be deemed to be ongoing. It is difficult to view this suit as one to remedy any future wrongs, and it does not appear that the circumstances which *1244 caused SRS to deny plaintiff's request will reoccur with any level of frequency, if at all. Compare Lewis v. New Mexico Dept. of Health, 94 F. Supp. 2d 1217 (D.N.M.2000) (finding plaintiffs sought to remedy future wrongs by seeking to enjoin state officials from further delay in the provision of waiver services).\nAlthough the effects of defendants' acts as they impact the plaintiff may be continuing, a continuing effect of a past violation is not sufficient to warrant prospective injunctive relief. See V-1 Oil Co. v. Utah State Dept. of Public Safety, 131 F.3d 1415, 1422 (10th Cir.1997) (Eleventh Amendment bars claims for \"retroactive monetary reimbursement for licensure and certification fees\" and for declaratory judgment that state officials had violated federal law in the past). The allegations in the complaint provide no indication that prospective injunctive relief would ameliorate the alleged violations, which have already occurred. See Calderon v. Kansas Dep't of Soc. and Rehab. Servs., 181 F.3d 1180, 1184-85 (10th Cir.1999) (finding Ex Parte Young inapplicable and dismissing claims under 11th Amendment where complaint gave no indication that plaintiff might be entitled to injunctive relief for ongoing federal constitutional violations by state officials). The court concludes that plaintiff has failed to state an ongoing federal constitutional violation which prospective injunctive relief could remedy.\nTherefore, the court finds the Ex parte Young exception to Eleventh Amendment immunity inapplicable to plaintiff's claims brought against the individual defendants in their official capacities. Accordingly, Eleventh Amendment immunity protects the defendants against all claims but plaintiff's § 504 claims, as to which the state has waived its immunity.\n\nV. FAILURE TO STATE A CLAIM\n\nA. § 504 claim\nPlaintiff claims that SRS, and not the individual defendants, violated § 504 of the Rehabilitation Act. Defendants contend that plaintiff's action fails to state a claim pursuant to § 504, and thus move for dismissal pursuant to Fed.R.Civ.P. 12(b)(6).\n\nStandards governing motions to dismiss\nA court may dismiss a complaint for \"failure to state a claim upon which relief can be granted.\" Fed.R.Civ.P. 12(b)(6). Dismissal should not be granted \"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,\" GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)), or unless an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989). \"The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true.\" Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993); see Hospice of Metro Denver, Inc. v. Group Health Ins. of Oklahoma, 944 F.2d 752, 753 (10th Cir.1991) (\"Dismissal of a case pursuant to Fed.R.Civ.P. 12(b)(6) requires the legal determination that the plaintiff can prove no set of facts in support of his claim to entitle him to relief.\") (citations omitted). The Tenth Circuit has observed that the federal rules \"`erect a powerful presumption against rejecting pleadings for failure to state a claim.'\" Maez v. Mountain States Tel. and Tel., Inc., 54 F.3d 1488, 1496 (10th Cir.1995) (quoting Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986)).\n*1245 Although a plaintiff need not precisely state each element of his claims, he must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Put another way, \"`conclusory allegations without supporting allegations are insufficient to state a claim.'\" Erikson v. Pawnee County Bd. of County Com'rs, 263 F.3d 1151, 1154 (10th Cir.2001) (quoting Hall, 935 F.2d at 1110), cert. denied, 535 U.S. 971, 122 S. Ct. 1438, 152 L. Ed. 2d 382 (2002). \"[A]llegations of conclusions or opinions are not sufficient when no facts are alleged by way of the statement of the claim.\" Bryan v. Stillwater Board of Realtors, 578 F.2d 1319, 1321 (10th Cir.1977); see Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir.1990) (district court is not required to accept \"footless conclusions of law\" in deciding motion to dismiss). \"`It is true that the Federal Rules of Civil Procedure do not require a plaintiff to set out in detail the facts upon which a claim is based. Nevertheless, a plaintiff must allege sufficient facts to outline a cause of action, proof of which is essential to recovery.'\" Stevens v. Umsted, 131 F.3d 697, 700 (7th Cir.1997) (quoting Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir.1985), cert. denied, 475 U.S. 1047, 106 S. Ct. 1265, 89 L. Ed. 2d 574 (1986)).\nA court judges the sufficiency of the complaint accepting as true all well-pleaded facts, as distinguished from conclusory allegations, Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir.1998), and drawing all reasonable inferences from those facts in favor of the plaintiff. Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir.), cert. denied, 525 U.S. 881, 119 S. Ct. 188, 142 L. Ed. 2d 154 (1998); see Southern Disposal, Inc. v. Texas Waste Management, 161 F.3d 1259, 1262 (10th Cir.1998) (court \"need not accept ... conclusory allegations as true.\"). It is not the court's function \"to weigh potential evidence that the parties might present at trial.\" Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991). The court construes the allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974). These deferential rules, however, do not allow the court to assume that a plaintiff \"can prove facts that it has not alleged or that the defendants have violated the ... laws in ways that have not been alleged.\" Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S. Ct. 897, 74 L. Ed. 2d 723 (1983) (footnote omitted). Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir.1989).\n\nSubstance — § 504 claims\nSection 504 of this Act provides that \"[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....\" 29 U.S.C. § 794. This section generally prohibits discrimination against the disabled by recipients of federal funding, including private organizations. 29 U.S.C. § 794(b)(3).\nTo make a prima facie case of discrimination under the Rehabilitation Act, a plaintiff must show, among other elements, that he is \"otherwise qualified.\" Schrader v. Fred A. Ray, M.D., P.C. 296 F.3d 968, 971 (10th Cir.2002). See Robinson v. Kansas, 117 F. Supp. 2d 1124, 1144 (D.Kan.2000), aff'd, 295 F.3d 1183 (10th Cir.2002), cert. denied, 539 U.S. 926, 123 S. Ct. 2574, 156 L. Ed. 2d 603 (2002) (a prima facie case requires a plaintiff to prove: (1) he is handicapped under the Act; (2) he is \"otherwise qualified\" to participate in the program; *1246 (3) the program receives federal financial assistance; and (4) the program discriminated against him).\n\"Qualified handicapped person\" is defined, for services other than those with respect to employment or education, as: \"a handicapped person who meets the essential eligibility requirements for the receipt of such services.\" 45 C.F.R. § 84.3.(k). See 45 C.F.R. § 84.4(b)(1)(i). This definition applies to alleged discrimination by health, welfare and social services providers toward applicants attempting to obtain such services. Beauford v. Father Flanagan's Boys' Home, 831 F.2d 768, 771-72 (8th Cir.1987), cert. denied, 485 U.S. 938, 108 S. Ct. 1116, 99 L. Ed. 2d 277 (1988). See generally, 45 C.F.R. § § 84.51, 84.52. This definition therefore governs the court's analysis in this case.\nPlaintiff does not contend that he meets the essential eligibility requirements for the receipt of the service he seeks. Rather, he alleges that the eligibility requirements for receipt of the Vest are erroneous and should be changed by this court. The allegations, taken in the light most favorable to plaintiff, fail to include that he is an \"otherwise qualified individual\" for purposes of this Act, warranting dismissal. See Alexander v. Choate, 469 U.S. 287, 303, 105 S. Ct. 712, 83 L. Ed. 2d 661 (1985) (refusing to allow a claim under section 504 because the Medicaid Act, 42 U.S.C. § 1396a(a)(19), gives the states substantial discretion in defining the allocation of benefits); Frances J. by Murphy v. Bradley, 1992 WL 390875, * 7 (N.D.Ill.1992) (finding plaintiffs failed to state a claim under § 504 where plaintiffs asked the court to \"stretch the reach of section 504 to interfere in a state agency's discretionary decisionmaking regarding the disbursement of limited funds,\" and did not allege that services that were being provided to non-handicapped citizens were being denied to citizens with handicaps.); Duquette By and Through Duquette v. Dupuis, 582 F. Supp. 1365, 1373 (D.N.H.1984) (finding plaintiff failed to state a cognizable claim under § 504 because § 504 does not modify the funding conditions or medical assistance eligibility requirements of the Medicaid Act).\n\"There is nothing in the Rehabilitation Act that requires that any benefit extended to one category of handicapped persons also be extended to all other categories of handicapped persons.\" Traynor v. Turnage, 485 U.S. 535, 549, 108 S. Ct. 1372, 99 L. Ed. 2d 618 (1988). The court defers to the institutional judgment of SRS in determining the appropriate level of benefits to be distributed in relation to the severity of an individual's handicap. See Dempsey v. Ladd, 840 F.2d 638, 640 (9th Cir.1987) (\"[t]o determine the scope of the term `otherwise qualified handicapped individual,' courts consider the eligibility requirements of the state program receiving federal funds\"); Doe v. New York University, 666 F.2d 761, 776 (2d Cir.1981) (holding that \"considerable judicial deference must be paid to the evaluation made by the institution itself\"). Because plaintiff does not contend that he meets the essential eligibility requirements for the receipt of the service he seeks, but alleges that the eligibility requirements should be changed, he fails to state a claim under § 504.\nThe court finds it unnecessary to address other issues relative to plaintiff's § 504 claim, including whether plaintiff has sufficiently alleged that any adverse action by SRS was based upon his disability. Although the court need not reach any other claims in this case, given its ruling on immunity, it nonetheless finds as follows, as an alternative basis for its decision.\n\nB. ADA claim\nPlaintiff's ADA claim against the individual defendants in their official capacities *1247 alleges that they are discriminating against him on the basis of his disability because they have refused and continue to refuse:\nA) to provide medically necessary medical treatment because of the plaintiff's particular disability and diagnosis;\nB) to provide airway clearance services that are sufficient in amount, duration and scope to reasonably achieve their medical purpose because of the plaintiff's particular disability and diagnosis;\nC) to provide medically necessary durable medical equipment because of the plaintiff's particular disability and diagnosis and because of his age; and\nD) to refrain from reducing the amount of services to Stuart Sanders solely because of his type of disability, illness or condition.\nDk. 14, p. 17.\nThe terms \"medically necessary medical treatment,\" \"airway clearance services,\" \"medically necessary durable medical equipment,\" and \"services,\" as used above in the amended complaint, are merely various references to the Vest. The essence of plaintiff's disability discrimination claim is that defendants discriminated against him by not providing him with the Vest, based upon the \"type\" of disability he has.\nSection 202 of the ADA prohibits discrimination against the disabled by public entities. It states:\nSubject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.\n42 U.S.C. § 12132. Plaintiff's claim under the ADA is identical in controlling aspects to his claim under the Rehabilitation Act. See Nielsen v. Moroni Feed Co., 162 F.3d 604, 608 n. 7 (10th Cir.1998).\nPlaintiff must prove that (1) he is a qualified individual with a disability; (2) he was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability. Gohier v. Enright, 186 F.3d 1216, 1219 (10th Cir.1999); Pahulu v. University of Kansas, 897 F. Supp. 1387, 1389 (D.Kan.1995).\nSpurlock v. Simmons, 88 F. Supp. 2d 1189, 1195 (D.Kan.2000).\nThis claim fails for the same pleading deficiencies which doomed plaintiff's Rehabilitation Act claim. See generally 42 U.S.C. § 12131(2)(defining qualified individuals\" as persons with disabilities who, \"with or without reasonable modifications to rules, policies, or practices, ... mee[t] the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.\"); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 602, 119 S. Ct. 2176, 144 L. Ed. 2d 540 (1999) (finding the State generally may rely on the reasonable assessments of its own professionals in determining whether an individual meets the essential eligibility requirements).\n\nC. Section 1983 claims\nSRS contends that plaintiff's action against it under § 1983 is subject to dismissal because the state is not a \"person\" for purposes of section 1983.[3]\n*1248 See Harris v. Champion, 51 F.3d 901, 905-06 (10th Cir.1995) (explaining that a state or state agency is not a person under § 1983 except to the extent that the plaintiff sues for prospective injunctive relief only). Plaintiff counters that because the state has waived its immunity under the Rehabilitation Act, it is deemed a \"person\" for purposes of § 1983.\nThe court agrees with SRS. The state's waiver of its Eleventh Amendment immunity in a § 504 action does not transform it into a \"person\" under § 1983, because the scope of eleventh amendment immunity and the scope of § 1983 are different issues. Will, 491 U.S. at 64-65, 109 S. Ct. 2304. See Bellamy v. Borders, 727 F. Supp. 247 (D.S.C.1989) (finding a state's waiver of eleventh amendment immunity irrelevant to the issue of whether a state is a person for purposes of § 1983).\n\"A state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because `official-capacity actions for prospective relief are not treated as actions against the State.'\" Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 n. 10, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989) (quoting Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985)). Accordingly, the court examines whether plaintiff's claims against the individual defendants in their official capacities, brought pursuant to § 1983, withstand defendant's motion to dismiss.\n\nMedicaid statutes\nPlaintiff alleges that the Medicaid statute creates a federal right to particular medical equipment which is enforceable under 42 U.S.C. § 1983 and which defendants violated. Specifically, plaintiff contends that the three official defendants \"fail[ed] to provide medically necessary durable medical equipment\" in violation of the Medicaid statutes stated below. Defendants counter that the alleged violations of the Medicaid statute cannot be enforced by Medicaid recipients by use of 42 U.S.C. § 1983.\nPlaintiff states his reliance upon the following Medicaid statutes as a basis for his cause of action under § 1983:\n42 U.S.C. § 1396a(a)(8)-A State plan for medical assistance must —\n(8) provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals;\n42 U.S.C. § 1396a(a)(17) — A State plan for medical assistance must — (17) ... include reasonable standards ... for determining eligibility for and the extent of medical assistance under the plan which (A) are consistent with the objectives of this subchapter ...\nFor purposes of convenience, the court shall refer to these as the \"reasonable promptness\" and the \"reasonable standards\" provisions, respectively.\nThe Tenth Circuit has not addressed whether the Medicaid statutes noted above create a federal right to particular medical equipment which is enforceable under 42 U.S.C. § 1983. Although the Tenth Circuit in Lewis found that a procedural due process claim under 42 U.S.C. § 1396a(a)(8) passed the \"wholly insubstantial or frivolous\" test, the Court did not decide the merits of that claim. See Lewis, 261 F.3d at 977 (noting plaintiff's argument that state officials failed to process their applications for waiver services in the manner required by federal law; *1249 \"they do not, quite wisely, argue that the Medicaid statutes create a substantive property interest in waiver services to which they are entitled.\")\nOther courts have found that the reasonable promptness provision of § 1396a(a)(8) provides a cause of action under § 1983. See Bryson v. Shumway, 308 F.3d 79, 89 (1st Cir.2002)(finding a § 1983 cause of action arising from the \"reasonable promptness\" provision of 42 U.S.C. § 1396a(a)(8) under the state model waiver plan as approved, because the strictures of the statute \"should apply with no less force to opt-in plans such as the waiver program.\"); Doe v. Chiles, 136 F.3d 709, 714-15, 719 (11th Cir.1998) (upholding a § 1983 cause of action under § 1396a(a)(8) as applied to an optional program).\nHowever, in such cases, the essence of plaintiffs' claims was that state officials had failed to process their applications for waiver services in the timely manner required by federal law. See e.g., Bryson, 308 F.3d 79 (remanding to determine whether the state was \"reasonably prompt\" in filling empty slots in its Medicaid waiver program for individuals with acquired brain disorders); Doe, 136 F.3d 709 (affirming the district court's order which enjoined officials from failing to provide assistance within a \"reasonable\" time period, not to exceed 90 days). Plaintiff's claim in this case is that the Medicaid statutes create a substantive property interest in a specific piece of equipment to which he is allegedly entitled. Such a claim is different in kind than the claims asserted in the above cases. The court therefore finds no guidance in the cases noted above.\nThe court is aware that Section 1983, which prohibits persons who act under color of law from depriving individuals of \"any rights, privileges, or immunities secured by the Constitution and laws\" of the United States, creates a cause of action for federal statutory as well as constitutional rights, Maine v. Thiboutot, 448 U.S. 1, 4-8, 100 S. Ct. 2502, 65 L. Ed. 2d 555 (1980), including, in some circumstances, violations of the Medicaid Act, Wilder v. Va. Hosp. Ass'n, 496 U.S. 498, 524, 110 S. Ct. 2510, 110 L.Ed.2d 455(1990). Where a right of action has been found, however, is has generally been based upon the three-part test in Blessing v. Freestone, 520 U.S. 329, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997), which provides:\nFirst, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so \"vague and amorphous\" that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory rather than precatory terms.\n520 U.S. at 340-41, 117 S. Ct. 1353 (citations omitted).\nThe Supreme Court in Gonzaga University v. Doe, 536 U.S. 273, 282, 122 S. Ct. 2268, 153 L. Ed. 2d 309 (2002), rejected the notion that Blessing\"permit[s] anything short of an unambiguously conferred right to support a cause of action brought under § 1983.\" Specifically, Gonzaga stated that some courts interpreted Blessing as allowing plaintiffs to enforce a statute under § 1983 so long as the plaintiff falls within the general zone of interest that the statute intended to protect; something less than what is required for a statute to create rights enforceable directly from the statute itself under an implied right of action. 536 U.S. at 283, 122 S. Ct. 2268. The Gonzaga Court stated that for a statute to confer a private right of action, the statutory language must be \"`phrased in *1250 terms of the persons benefited.'\" Id. at 284, 122 S. Ct. 2268 (quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 692 n. 13, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979)).\nThus, to support a cause of action under § 1983, the statute must contain rights-creating language unequivocally conferring an individual right. As an example of the kind of language that would pass this test, the Court cited Title IX, which states: \"No person in the United States shall, on the basis of sex, ... be subjected to discrimination under any education program or activity receiving Federal financial assistance.\" Id. (quoting 20 U.S.C. § 1681(a)) (emphasis in original).\nPlaintiff does not contend that the authorizing provision of the Medicaid Act[4] passes the Gonzaga test, perhaps aware of the weight of authority to the contrary. See M.A.C. v. Betit., 284 F. Supp. 2d 1298, 1306 (D.Utah 2003) (finding the \"authorizing provision of the Medicaid Act does not contain rights-creating language unequivocally conferring an individual right to support a cause of action under § 1983\"); Sabree v. Houston, 245 F. Supp. 2d 653, 659 (E.D.Pa.2003).\nThe court therefore examines whether the two particular provisions[5] of the Medicaid Act relied upon by plaintiff pass the Gonzaga test. The first subsection requires that a State plan for medical assistance \"include reasonable standards ... for determining eligibility for and the extent of medical assistance under the plan which are consistent with the objectives of this subchapter.\" 42 U.S.C. § 1396a(a)(17). Such language imposes only a duty on the State, and creates no rights in individuals, and thus does not support a right of action under § 1983.\nThe language of 42 U.S.C. § 1396a(a)(8) raises a closer question, in requiring a State plan for medical assistance to \"provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.\" This language creates a duty of the State to furnish \"medical assistance\" with reasonable promptness, but does not contain the explicit rights-creating language described in Gonzaga. See M.A.C. v. Betit, 284 F.Supp.2d at 1306 (D.Utah 2003) (finding the reasonable promptness provision merely places certain conditions upon a state seeking Medicaid funding). The court is not aware of any post-Gonzaga case which has held to the contrary.\nFurther, assuming, arguendo, that the State's duty noted above gives rise to a correlative right of an eligible individual to receive \"medical assistance\" in a reasonably prompt manner, plaintiff's argument nonetheless fails because the statutory reference to \"assistance\" appears to refer to \"financial assistance rather than to actual medical services.\" Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir.2003) (finding \"what is required is a prompt determination of eligibility and prompt provision of funds to eligible individuals to enable them to obtain the covered medical services that they need, see 42 C.F.R. §§ 435.911(a), 435.930(a)-(b); a requirement of prompt treatment would amount to a direct regulation *1251 of medical services.\") See 42 U.S.C. § 1396d (\"The term `medical assistance' means payment of part or all of the cost of the following care and services ...\") The statute simply provides no support for plaintiff's claim that he has a right or entitlement to a specific piece of durable medical equipment.\nFor the reasons set forth above, the court finds no private right of action under the medicaid statutes alleged which is enforceable under 42 U.S.C. § 1983.\n\nEqual Protection clause\nPlaintiff additionally claims a violation of the equal protection clause by the individual defendants acting in their official capacities. The equal protection clause in Fourteenth Amendment to the United States Constitution declares that \"[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.\" This clause \"keeps governmental decision makers from treating differently persons who are in all relevant respects alike.\" Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992).\nThe Equal Protection Clause does not generally require accommodations on behalf of the disabled by the states. See Garrett, 121 S.Ct. at 964; Thompson, 278 F.3d at 1031. The court's task in this case is limited to determining whether the challenged statute is rationally related to a legitimate legislative goal.\nIt is well established that for purposes of the equal protection analysis, the disabled do not constitute a suspect class. Welsh v. City of Tulsa, 977 F.2d 1415, 1420 (10th Cir.1992). Nor is there a fundamental constitutional right to receive Medicaid benefits. \"[W]hen reviewing class distinctions drawn in social legislation not pertaining to a fundamental right or a suspect class, our review is [therefore] limited to determining whether the statute is rationally related to legitimate legislative goals.\" Hassan v. Wright, 45 F.3d 1063, 1068 (7th Cir.1995) (internal quotation marks omitted).\nVaughn v. Sullivan, 906 F. Supp. 466 (S.D.Ind.1995). See generally, In Spragens v. Shalala, 36 F.3d 947 (10th Cir.1994) (finding Social Security regulations that distinguished between blind and non-blind disabled recipients did not violate the equal protection clause).\nPlaintiff's equal protection claim is that SRS had no rational basis for denying him the Vest because he has the same symptom as those who receive the Vest, although he lacks the same diagnosis. This claim, as expressed in his amended complaint, states:\nThe exclusion of [the Vest] for Stuart Sanders lacks a rational basis because the device is medically necessary and appropriate for Stuart Sander's multiple conditions and because other eligible Medicaid beneficiaries with the identical symptoms are able to obtain the device. There is no rational distinction between the mucus that accumulates in Stuart Sander's lungs due to his severe hyper-secretory condition that has developed as a result of multiple sclerosis and mucus that accumulates in patients with cystic fibrosis. Both conditions express the same symptom of thick mucus in the airways and both conditions require effective airway clearance.\nDk 14, ¶ -19.\nThe court finds that the relevant comparison in this analysis is not between the substance in plaintiff's lungs and the substance in the lungs of persons with cystic fibrosis. Rather, the proper inquiry is solely whether SRS's policy or regulation which led to its denial of plaintiff's request for the Vest is rationally related to a legitimate regulatory goal. The underlying federal purpose is to provide the service to *1252 those in greatest need of it. Ohlson v. Weil, 953 P.2d 939, 944 (Colo.App.1997). When matters of health and safety are at issue, great judicial deference is owed to the legislative judgment. Williamson v. Lee Optical, 348 U.S. 483, 487-88, 75 S. Ct. 461, 99 L. Ed. 563 (1955). SRS's articulated policy is to determine payment for the Vest based on medical necessity. This policy is rationally related to the legitimate governmental interest in limiting the service to those in greatest need of it.\nBut even if SRS denied the Vest on the grounds claimed by plaintiff, no cause of action is stated. SRS could rationally determine that the hardships facing institutionalized persons who have cystic fibrosis and are under 21 years of age are more substantial than those facing persons otherwise disabled. At the very least, \"protecting the fisc provides a rational basis for [the state's] line drawing in this instance.\" Hassan, 45 F.3d at 1069; see also Cherry by Cherry v. Sullivan, 30 F.3d 73, 75 (7th Cir.1994) (states have \"a legitimate interest in controlling Medicaid expenditures and seeing that Medicaid dollars are allotted to only the truly needy recipients\"). Plaintiff thus fails to state a claim for relief under the equal protection clause.\n\nProcedural due process\nPlaintiff further contends that the individual defendants in their official capacities violated his \"substantive and procedural due process rights\" under the Fourteenth Amendment to the United States Constitution \"because the defendants have arbitrarily denied the Vest System without regard to his medical need for the equipment.\" Dk. 14, ¶ 19.\n\"To state a claim for a violation of due process, plaintiff must first establish that it has a protected ... interest and, second, that defendants' actions violated that interest. (Citation omitted).\" Crown Point I, LLC v. Intermountain Rural Elec. Ass'n, 319 F.3d 1211, 1216 (10th Cir.2003).\n... the Constitution does not protect procedure for procedure's sake. The Fourteenth Amendment, by its terms, does not guarantee due process; it protects against deprivations of life, liberty, or property without due process. Unless a person asserts some basis for contesting a governmental deprivation of life, liberty, or property, he is not injured by defective procedures he has no occasion to invoke.\nRector v. City and County of Denver, 348 F.3d 935, 943-44 (10th Cir.2003).\nPlaintiff's allegations, even when viewed in the light most favorable to plaintiff, fail to state a claim of a procedural due process violation. Plaintiff alleges no protected property interest in the Vest, i.e., that the procedures, if followed by SRS, would have required him to obtain the Vest. \"A property interest includes a `legitimate claim of entitlement' to some benefit created and defined by `existing rules or understandings that stem from an independent source such as state law.' \"Id., citing Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). Nor does the amended complaint contend that plaintiff was deprived of any liberty interest, or was due any more process than he already received.\n\nSubstantive due process\nPlaintiff alleges that \"the defendants have arbitrarily denied the Vest System without regard to his medical need for the equipment.\" Dk. 14, ¶ 19. To state a substantive due process claim based upon a specific use of executive power, however, the complaint must allege that the decision is arbitrary, or shocking to the conscience. See Butler v. Rio Rancho Public Schools Bd. of Educ., 341 F.3d 1197, 1200 1201 (10th Cir.2003).\n*1253 This district has traditionally applied the \"shock the conscience\" test in examining claims of substantive due process.\n\"The Due Process Clause `is not a guarantee against incorrect or ill-advised [government] decisions.'\" Rather, the Due Process Clause \"was intended to prevent government `from abusing [its] power, or employing it as an instrument of oppression.' \"Accordingly, conduct that is arbitrary or conduct that \"shocks the conscience\" in a constitutional sense are the only governmental actions that can form the basis for a substantive due process claim.\nBecerra v. Unified Government of Wyandotte County/Kansas City, Kansas, 272 F. Supp. 2d 1223, 1229 (D.Kan.2003) (footnotes omitted). See Rector v. City and County of Denver, 348 F.3d 935 (10th Cir.2003).\nPlaintiff fails to allege facts which, if true, would suffice to demonstrate that the refusal to grant him a Vest violated the applicable standard. In short, nothing alleged in the complaint shocks the conscience of the court. Nor has plaintiff suggested that the Medicaid payment procedures implicate any historically protected fundamental rights.[6]\nAccordingly, the court finds that plaintiff's allegation of a due process violation fails to state a claim.\nIT IS THEREFORE ORDERED that defendants' motions to dismiss (Dk. 19 &amp; 16) are granted, and that plaintiff's motion for oral argument (Dk.26) is denied.\nNOTES\n[1] Defendants do not contend that plaintiff failed to exhaust his administrative remedies the ADA or the Rehabilitation Act.\n[2] The statute provides that a State shall not be immune under the Eleventh Amendment from suit in Federal court for a violation of section 504 of the Rehabilitation Act, title IX, the Age Discrimination Act, title VI of the Civil Rights Act, \"or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.\" Plaintiff has not shown that the ADA, which prohibits discrimination by public and private entities, or § 1983, is among the federal statutes prohibiting discrimination \"by recipients of Federal financial assistance.\"\n[3] 42 U.S.C. § 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ...\n[4] 42 U.S.C. § 1396.\n[5] Although plaintiff cites to a third provision, commonly known as the \"equal access\" provision, in his brief, his pleading contains no reference to that statute, 42 U.S.C. § 1396a(a)(3)(A), thus the court finds it unnecessary to address it herein. Had the court done so, however, it would have found no private right of action by virtue of its language, as measured against the requirements clarified in Gonzaga.\n[6] \"Executive policymaking actions or legislative acts constitute substantive due process violations only if plaintiffs objectively show that such rights are rooted in our nation's history and provide a careful description of the asserted fundamental liberty interest. Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997).\" Rector v. City and County of Denver, 348 F.3d 935, 948 (10th Cir.2003).\n\n", "ocr": false, "opinion_id": 2427282 } ]
D. Kansas
District Court, D. Kansas
FD
Kansas, KS
119,649
null
"2002-04-15"
false
tolbert-v-moore-secretary-florida-department-of-corrections
Tolbert
Tolbert v. Moore, Secretary, Florida Department of Corrections
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "535 U.S. 1000" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/US/535/535.US.1000.01-8382.html", "author_id": null, "opinion_text": "535 U.S. 1000\n TOLBERTv.MOORE, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS.\n No. 01-8382.\n Supreme Court of the United States.\n April 15, 2002.\n \n 1\n C. A. 11th Cir. Certiorari denied.\n \n ", "ocr": false, "opinion_id": 119649 } ]
Supreme Court
Supreme Court of the United States
F
USA, Federal
91,771
Miller
"1886-12-06"
false
united-states-v-rauscher
Rauscher
United States v. Rauscher
null
null
null
null
null
null
null
null
null
null
null
null
216
Published
null
null
[ "119 U.S. 407", "7 S. Ct. 234", "30 L. Ed. 425", "1886 U.S. LEXIS 2006" ]
[{"author_str":null,"per_curiam":false,"type":"010combined","page_count":null,"download_url":null,"a(...TRUNCATED)
Supreme Court
Supreme Court of the United States
F
USA, Federal
121,718
null
"2002-06-24"
false
iheke-v-united-states
Iheke
Iheke v. United States
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "536 U.S. 947" ]
[{"author_str":null,"per_curiam":false,"type":"010combined","page_count":null,"download_url":"http:/(...TRUNCATED)
Supreme Court
Supreme Court of the United States
F
USA, Federal
1,434,296
Rosellini, Utter
"1984-06-28"
false
state-v-reed
Reed
State v. Reed
The State of Washington, Respondent, v. Gordon James Reed, Petitioner
"Don W. Taylor (of Fristoe, Taylor & Schultz, Ltd., P.S.), for petitioner., Jeff Campiche, Prosecuti(...TRUNCATED)
null
null
null
null
null
null
null
null
null
null
131
Published
null
"<docketnumber id=\"b164-6\">\n [No. 49832-6.\n </docketnumber><court id=\"AcF\">\n En Banc.(...TRUNCATED)
[ "684 P.2d 699", "102 Wash. 2d 140" ]
[{"author_str":"Rosellini","per_curiam":false,"type":"020lead","page_count":null,"download_url":null(...TRUNCATED)
Washington Supreme Court
Washington Supreme Court
S
Washington, WA
795,940
null
"2006-10-19"
false
honeywell-international-inc-v-purolator-products-co-motor-components
null
null
"Honeywell International, Inc. v. Purolator Products Co., Motor Components, Bam Enterprises, Mark IV(...TRUNCATED)
null
null
null
null
null
null
null
null
null
null
null
6
Published
null
null
[ "468 F.3d 162" ]
[{"author_str":null,"per_curiam":false,"type":"010combined","page_count":null,"download_url":"http:/(...TRUNCATED)
Second Circuit
Court of Appeals for the Second Circuit
F
USA, Federal
End of preview.

Collaborative Open Legal Data (COLD) - Cases

COLD Cases is a dataset of 8.3 million United States legal decisions with text and metadata, formatted as compressed parquet files. If you'd like to view a sample of the dataset formatted as JSON Lines, you can view one here

This dataset exists to support the open legal movement exemplified by projects like Pile of Law and LegalBench. A key input to legal understanding projects is caselaw -- the published, precedential decisions of judges deciding legal disputes and explaining their reasoning. United States caselaw is collected and published as open data by CourtListener, which maintains scrapers to aggregate data from a wide range of public sources.

COLD Cases reformats CourtListener's bulk data so that all of the semantic information about each legal decision (the authors and text of majority and dissenting opinions; head matter; and substantive metadata) is encoded in a single record per decision, with extraneous data removed. Serving in the traditional role of libraries as a standardization steward, the Harvard Library Innovation Lab is maintaining this open source pipeline to consolidate the data engineering for preprocessing caselaw so downstream machine learning and natural language processing projects can use consistent, high quality representations of cases for legal understanding tasks.

Prepared by the Harvard Library Innovation Lab in collaboration with the Free Law Project.


Links


Summary


Format

Apache Parquet is binary format that makes filtering and retrieving the data quicker because it lays out the data in columns, which means columns that are unnecessary to satisfy a given query or workflow don't need to be read. Hugging Face's Datasets library is an easy way to get started working with the entire dataset, and has features for loading and streaming the data, so you don't need to store it all locally or pay attention to how it's formatted on disk.

☝️ Go back to Summary


Data dictionary

Partial glossary of the fields in the data.

Field name Description
judges Names of judges presiding over the case, extracted from the text.
date_filed Date the case was filed. Formatted in ISO Date format.
date_filed_is_approximate Boolean representing whether the date_filed value is precise to the day.
slug Short, human-readable unique string nickname for the case.
case_name_short Short name for the case.
case_name Fuller name for the case.
case_name_full Full, formal name for the case.
attorneys Names of attorneys arguing the case, extracted from the text.
nature_of_suit Free text representinng type of suit, such as Civil, Tort, etc.
syllabus Summary of the questions addressed in the decision, if provided by the reporter of decisions.
headnotes Textual headnotes of the case
summary Textual summary of the case
disposition How the court disposed of the case in their final ruling.
history Textual information about what happened to this case in later decisions.
other_dates Other dates related to the case in free text.
cross_reference Citations to related cases.
citation_count Number of cases that cite this one.
precedential_status Constrainted to the values "Published", "Unknown", "Errata", "Unpublished", "Relating-to", "Separate", "In-chambers"
citations Cases that cite this case.
court_short_name Short name of court presiding over case.
court_full_name Full name of court presiding over case.
court_jurisdiction Code for type of court that presided over the case. See: court_jurisdiction field values
opinions An array of subrecords.
opinions.author_str Name of the author of an individual opinion.
opinions.per_curiam Boolean representing whether the opinion was delivered by an entire court or a single judge.
opinions.type One of "010combined", "015unamimous", "020lead", "025plurality", "030concurrence", "035concurrenceinpart", "040dissent", "050addendum", "060remittitur", "070rehearing", "080onthemerits", "090onmotiontostrike".
opinions.opinion_text Actual full text of the opinion.
opinions.ocr Whether the opinion was captured via optical character recognition or born-digital text.

court_jurisdiction field values

Value Description
F Federal Appellate
FD Federal District
FB Federal Bankruptcy
FBP Federal Bankruptcy Panel
FS Federal Special
S State Supreme
SA State Appellate
ST State Trial
SS State Special
TRS Tribal Supreme
TRA Tribal Appellate
TRT Tribal Trial
TRX Tribal Special
TS Territory Supreme
TA Territory Appellate
TT Territory Trial
TSP Territory Special
SAG State Attorney General
MA Military Appellate
MT Military Trial
C Committee
I International
T Testing

☝️ Go back to Summary

Notes on appropriate use

When using this data, please keep in mind:

  • All documents in this dataset are public information, published by courts within the United States to inform the public about the law. You have a right to access them.
  • Nevertheless, public court decisions frequently contain statements about individuals that are not true. Court decisions often contain claims that are disputed, or false claims taken as true based on a legal technicality, or claims taken as true but later found to be false. Legal decisions are designed to inform you about the law -- they are not designed to inform you about individuals, and should not be used in place of credit databases, criminal records databases, news articles, or other sources intended to provide factual personal information. Applications should carefully consider whether use of this data will inform about the law, or mislead about individuals.
  • Court decisions are not up-to-date statements of law. Each decision provides a given judge's best understanding of the law as applied to the stated facts at the time of the decision. Use of this data to generate statements about the law requires integration of a large amount of context -- the skill typically provided by lawyers -- rather than simple data retrieval.

To mitigate privacy risks, we have filtered out cases blocked or deindexed by CourtListener. Researchers who require access to the full dataset without that filter may rerun our pipeline on CourtListener's raw data.

☝️ Go back to Summary

Downloads last month
17
Edit dataset card