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[ { "docid": "11946363", "title": "", "text": "several claims against the defendant, the general rule ... is that the value of all the claims can be added together — aggregated—in determining whether the requisite jurisdictional amount in controversy has been satisfied.” (footnote omitted)). Thus all of Wolde-Meskel’s aggregated initial claims were within the ambit of § 1332, and within the jurisdiction of the district court. B. Jurisdiction After Summary Judgment Satisfaction of the § 1332(a) diversity requirements (amount in controversy and citizenship) is determined as of the date that suit is filed — the “time-of-filing” rule. “Events occurring subsequent to the institution of suit which reduce the amount recoverable below the statutory limit do not oust jurisdiction.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289-90, 58 S.Ct. 586, 590-91, 82 L.Ed. 845 (1938). Thus it is “the well-settled rule that a federal court does not lose jurisdiction over a diversity action which was well founded at the outset even though one of the parties may later change domicile or the amount recovered falls short of [the statutory minimum].” Rosado v. Wyman, 397 U.S. 397, 405 n. 6, 90 S.Ct. 1207, 1214 n. 6, 25 L.Ed.2d 442 (1970). Federal diversity jurisdiction is not lost by post-filing events that change or disturb the state of affairs on which diversity was properly laid at the outset. See Chase Manhattan Bank, N.A. v. American Nat’l Bank & Trust Co. of Chicago, 93 F.3d 1064, 1070 (2d Cir.1996) (“The amount in controversy is determined at the time the action is commenced.” (quoting Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir.1994))); see also Linardos v. Fortuna, 157 F.3d 945, 947 (2d Cir.1998) (noting that the time-of-filing rule applies in the citizenship context). In Chase Manhattan Bank, the plaintiff bank invoked diversity jurisdiction to enforce a mortgage guaranty, alleging that $4 million in improvements would be required post-foreclosure. Shortly after suit was filed, the bank foreclosed and sold the property unimproved. The district court dismissed for lack of jurisdiction on the ground that the remaining amount in controversy fell short of the amount required" } ]

[ { "docid": "5957082", "title": "", "text": "v. Lovecchio, 8 F.Supp.2d 214, 218 (E.D.N.Y.1998). . Plaintiffs complain that defendants have obstructed their discovery efforts. They argue that because defendants have deprived them of needed discovery, they should not have to bolster their jurisdictional allegations with factual support, apparently agreeing with defendants that after discovery but prior to an evidentiary hearing or trial, some factual support normally is required to survive a jurisdiction-testing motion. See PL Mem. 41. This motion is not the proper context in which to raise such concerns, as plaintiffs could have moved the Court to compel discovery at the time of the alleged infractions. In any case, the matters about which plaintiffs complain all revolve around ownership and control of bank accounts overseas, see PL Mem. 3, Berry Aff. Ex. 3 ¶¶ 41, 42, 43, 44, 77, 101; id. Ex. 5, at 3, issues which are not material to the Court’s jurisdictional determinations here. Accordingly, plaintiffs' argument does not convince the Court that it should apply the standard applicable to Rule 12(b)(2) motions prior to jurisdictional discovery. . 902 F.2d 194 (2d Cir.), cert. denied, 498 U.S. 854, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990). . Id. at 197. . Id. . See Barrett v. United States, 646 F.Supp. 1345, 1350 (S.D.N.Y.1986); accord Dardana Ltd. v. Yuganskneftegaz, No. 00 Civ. 4633(DAB), 2001 WL 1131987, at *2 (S.D.N.Y. Sept. 24, 2001); Coan v. Bell Atl. Sys. Leasing Int’l, Inc., 813 F.Supp. 929, 942 (D.Conn.1990); see also Jazini v. Nissan Motor Co., 148 F.3d 181, 184, 185 (2d Cir.1998); Cornell v. Assicurazioni Generali S.p.A., No. 97 Civ. 2262, 2000 WL 1099844, at *1 (S.D.N.Y. Aug. 7, 2000) (quoting Jazini, 148 F.3d at 185). . Yellow Page Solutions, Inc. v. Bell Atl. Yellow Pages Co., No. 00 Civ. 5663(MBM), 2001 WL 1468168, at *3 (S.D.N.Y. Nov. 19, 2001) (quoting Ball, 902 F.2d at 197) (footnote added); accord Morrison v. N.Y. State Div. for Youth Children & Family Servs., No. 98 Civ. 643, 2000 WL 532762, at *1 (S.D.N.Y. Apr. 25, 2000); Gulf Union Ins. Co. Saudi Arabia v. Bella Shipping Co., No. 91 Civ. 2814(PKL), 1994 WL" }, { "docid": "5656035", "title": "", "text": "the” United States. Accordingly, the Court lacks personal jurisdiction over the plaintiffs’ Ex change Act claims against Melco and Ho. Moreover, the lack of personal jurisdiction over the Exchange Act claims makes it unnecessary to consider whether the doctrine of pendent personal jurisdiction otherwise would have permitted the Court to entertain the state law claims. Conclusion For the foregoing reasons, the motion of defendants Melco and Ho to dismiss the complaint [DI 35] is granted on the ground that the Court lacks personal jurisdiction over them. SO ORDERED. . 15 U.S.C. §§ 78j(b), 78t(a). . 17 C.F.R. § 240.10b-5. . Amended complaint (\"Cpt.”) ¶ 40. . Id. ¶¶ 87-88, 95-99. . Id. ¶ 11. . Id. ¶¶ 2, 12. . Id. ¶ 13; Ho Decl. ¶¶ 2, 4. . Cpt. 12-13. As the SPA is effectively incorporated by reference in the amended complaint, the Court has considered its terms. A copy appears at DI 33-3. . Id. ¶¶ 41-51. . Id. ¶ 42. . Id. ¶¶ 41, 52-55, 57-58, 60-61, 63-69, 83-85, 89-94, 101-05, 108-11, 113. . Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.), cert. denied, 498 U.S. 854, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990). . Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 184 (2d Cir. 1998) (quoting Ball, 902 F.2d at 197). . 15 U.S.C. § 78aa. . SEC v. Unifund SAL, 910 F.2d 1028, 1033 (2d Cir. 1990) (citing Bersch v. Drexel Firestone, Inc., 519 F.2d 974, 998 (2d Cir.), cert. denied, 423 U.S. 1018, 96 S.Ct. 453, 46 L.Ed.2d 389 (1975)). . Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 127 (2d Cir.2002) (citing Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir.1996)). . Id. at 127 (quoting U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 152 (2d Cir.2001)) (in turn quoting Calder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)) (internal quotation marks omitted). . Id. at 129 (quoting Metro. Life Ins., 84 F.3d at 568) (in turn quoting Int’l Shoe Co. v." }, { "docid": "22848312", "title": "", "text": "v. Am. Nat. Bank and Trust Co. of Chicago, 93 F.3d 1064, 1070-71 (2d Cir.1996) (quoting Tongkook, 14 F.3d at 785). “[E]ven where [the] allegations leave grave doubt about the likelihood of a recovery of the requisite amount, dismissal is not warranted.” Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir.1982); see also Tongkook, 14 F.3d at 785 (“Where the damages sought are uncertain, the doubt should be resolved in favor of the plaintiffs pleadings.”) Two further points by way of legal background are in order. First, we measure the amount in controversy as of the date of the complaint. Once jurisdiction has attached, it cannot be ousted by subsequent events. See Wolde-Meskel, 166 F.3d at 62 (discussing the “time of filing” rule for determining the amount in controversy). Second, affirmative “defenses asserted on the merits” may not be used to whittle down the amount in controversy. Zacharia, 684 F.2d at 202. Were such defenses to affect the jurisdictional amount, we have said, “doubt and ambiguity would surround the jurisdictional base of most diversity litigation from complaint to final judgment^ and i]ssues going to a federal court’s power to decide would be hopelessly confused with the merits themselves.” Id. Even where the complaint itself “discloses the existence of a valid defense,” we have declined to consider it in determining whether the jurisdictional threshold is met. Ochoa v. Interbrew Am., Inc., 999 F.2d 626, 628 (2d Cir.1993) (quoting Red Cab, 303 U.S. at 288-289, 58 S.Ct. 586). The rule that affirmative defenses may not be used in determining the jurisdictional amount does not appear to depend on whether a colorable argument against the defense has been advanced. Thus in Zacharia, we cited Kissick Const. Co. v. First Nat. Bank of Wahoo, 46 F.Supp. 869 (D.Neb.1942), as an example of the affirmative defense rule, see Zacharia, 684 F.2d at 202, and in Kissick, the applicability of the asserted defense (a statute of limitations) was not disputed, see Kissick, 46 F.Supp. at 870. This may seem paradoxical: if it can be said “to a legal certainty” that the defense in" }, { "docid": "8597958", "title": "", "text": "Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994). . Id. . St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938) (emphasis added). . Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir.1982). . Burg v. Horn, 380 F.2d 897, 899 (2d Cir.1967); Wolff v. Wolff, 67 N.Y.2d 638, 641, 490 N.E.2d 532, 534, 499 N.Y.S.2d 665, 667 (1986); Blaustein v. Pan American Petroleum & Transport Co., 293 N.Y. 281, 300, 56 N.E.2d 705, 713 (1944). . Stoeckel v. Block, 170 A.D.2d 417, 418, 566 N.Y.S.2d 625, 626 (1st Dep't 1991); E.W. Bruno Co. v. Friedberg, 21 A.D.2d 336, 341, 250 N.Y.S.2d 187, 192 (1st Dep’t 1964) (quoting Duane Jones Co. v. Burke, 306 N.Y. 172, 192, 117 N.E.2d 237, 247 (1954)). . See infra. . See Allard v. Arthur Andersen & Co., 924 F.Supp. 488, 493 (S.D.N.Y.1996); AFA Protective Systems, Inc. v. American Tel. & Tel. Co., 57 N.Y.2d 912, 914, 442 N.E.2d 1268, 1269, 456 N.Y.S.2d 757, 758 (1982) (“the rule in this State is that all elements of profit are excluded from a computation of damages in an action grounded in fraud”). . Goldberg v. Mallinckrodt, Inc., 792 F.2d 305, 307 (2d Cir.1986). . $23,000/(40,776 X 3) = 18.8 cents . This calculation reflects the adverse effect of any restrictions on the sale of the private placement stock and therefore may understate the value of the 300,000 shares. . The fact that the Court dismisses plaintiffs claims on statute of limitations grounds below does not alter the Court’s subject matter jurisdiction analysis. A court faced with a motion for summary judgment both for lack of jurisdiction and on the merits must decide the jurisdictional question first, since a disposition on the merits' is an exercise of jurisdiction. See Moreno v. United States, 965 F.Supp. 521, 523-24 (S.D.N.Y.1997). Therefore, the existence of defenses to the claim which, if valid, would preclude recovery of at least the jurisdictional amount does not affect jurisdiction because it does not go to the presence of a" }, { "docid": "22163425", "title": "", "text": "granting ATI’s motion to dismiss under Fed.R.Civ.P. 12(b)(2), the district court held that Whitaker failed to demonstrate any factual predicate authorizing jurisdiction over ATI under the New York long arm statute, N.Y.C.P.L.R. § 302(a) and that, in any event, compelling ATI to litigate in New York would offend the due process clause of the Fourteenth Amendment to the United States Constitution. Whitaker v. Fresno Telsat, Inc., 87 F.Supp.2d 227, 233 (S.D.N.Y.1999). On appeal, Whitaker argues that the district court: (1) erred in concluding that Whitaker failed to show injury in New York and, hence, a basis for reaching ATI under the New York long arm statute, and (2) erred in concluding that contacts between ATI and New York were so lacking that compelling ATI to litigate in New York would offend the due process clause of the Fourteenth Amendment. “This Court reviews de novo a dismissal for lack of personal jurisdiction.” Chaiken v. VV Publ’g. Corp., 119 F.3d 1018, 1025 (2d Cir.1997) (citations omitted). The plaintiff bears the burden of establishing that the court has jurisdiction over the defendant when served with a Rule 12(b)(2) motion to dismiss. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994). A plaintiff may carry this burden “by pleading in good faith ... legally sufficient allegations of jurisdiction, i.e., by making a ‘prima facie showing’ of jurisdiction.” Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 184 (2d Cir.1998) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990)). A plaintiff can make this showing through his “own affidavits and supporting materials[,]” Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981), containing “an averment of facts that, if credited ..., would suffice to establish jurisdiction over the defendant.” Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.8d 560, 567 (2d Cir.1996) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990)). “[W]here the issue is addressed on affidavits, all allegations are construed in the light most favorable to the plaintiff and doubts are resolved in the plaintiffs favor!.]” A.I. Trade Finance, Inc. v. Petra" }, { "docid": "22848310", "title": "", "text": "In the district court’s view, the open-ended questions on the verdict sheet, when read in the light of Scherer’s and her doctors’ testimony, signify that the parties, the jurors, and the state judge all understood that the task at hand was to find whether disability benefits were owed to Scherer for the period through the time of trial. Accordingly, the district court held the state judgment to preclude any suit for pre-May 3, 2001 benefits. DISCUSSION I. The diversity statute confers original jurisdiction on the federal district courts with respect to “all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different States.” 28 U.S.C. § 1332(a). Federal Rule of Civil Procedure 12(b)(1) authorizes motions to dismiss for lack of subject matter jurisdiction. We review 12(b)(1) dismissals de novo on the law, and for clear error on the facts. Virtual Countries, Inc. v. Republic of S. Africa, 300 F.3d 230, 235 (2d Cir.2002). “A party invoking the jurisdiction of the federal court has the burden of proving that it appears to a ‘reasonable probability’ that the claim is in excess of the statutory jurisdictional amount.” Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir.1994) (quoting Moore v. Betit, 511 F.2d 1004, 1006 (2d Cir.1975)). This burden is hardly onerous, however, for we recognize “a rebuttable presumption that the face of the complaint is a good faith representation of the actual amount in controversy.” Wolde-Meskel v. Vocational Instruction Project Cmty. Servs., Inc., 166 F.3d 59, 63 (2d Cir.1999). To overcome the face-of-the-complaint presumption, the party opposing jurisdiction must show “to a legal certainty” that the amount recoverable does not meet the jurisdictional threshold. Id. (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 82 L.Ed. 845 (1938)). Our cases have set a high bar for overcoming this presumption. “[T]he legal impossibility of recovery must be so certain as virtually to negative the plaintiffs good faith in asserting the claim.” Chase Manhattan Bank, N.A." }, { "docid": "23519278", "title": "", "text": "dismissed Chase’s complaint: Because the plaintiff suffered no actual damages, it appears to a legal certainty that the jurisdictional amount required for subject matter jurisdiction, pursuant to 28 U.S.C. § 1332(a) ($50,000), cannot be satisfied. Thus, this case is dismissed for want of subject matter jurisdiction pursuant to Rule 12(h)(3). We review de novo a district court’s legal conclusion with respect to subject matter jurisdiction. In re Vogel Van & Storage, Inc., 59 F.3d 9, 11 (2d Cir.1995). A district court has subject matter jurisdiction based on diversity of citizenship if the suit is between citizens of different states and “the matter in controversy exceeds the sum or value of $50,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a). The complaint duly alleges (and it is not disputed) that Chase’s principal place of business is New York, and that the defendants are citizens of Illinois. As to the second requirement, “[a] party invoking the jurisdiction of the federal court has the burden of proving that it appears to a ‘reasonable probability’ that the claim is in excess of the statutory jurisdictional amount.” Tongkook America, Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir.1994). “The amount in controversy is determined at the time the action is commenced.” Id.; see also Coventry Sewage Assocs. v. Dworkin Realty Co., 71 F.3d 1, 4 (1st Cir.1995) (in determining amount in controversy, the courts “look[] to the circumstances at the time the complaint is filed”). It is well settled that the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938) (emphasis added and footnotes omitted); see also Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 353, 81 S.Ct. 1570, 1573, 6 L.Ed.2d 890 (1961) (amount in controversy is determined “from the complaint itself, unless it appears or is in some way shown that" }, { "docid": "6757969", "title": "", "text": "also McKay v. Point Shipping Corp., 587 F.Supp. 41, 42 (S.D.N.Y.1984) (agreement of fraudulently joined party not necessary for removal) (citing Broidy v. State Mutual Life Assurance Co., 186 F.2d 490, 492 (2d Cir.1951)). . No. 00 Civ. 7672. . The cases are Armstrong v. Warner-Lambert Co., No. 00 Civ. 7632, Hill v. Parke-Davis, No. 00 Civ. 7634, Hunter v. Parke-Davis, No. 00 Civ. 7635, and Southern v. Parke-Davis, No. 00 Civ. 7636. . United Food & Commercial Workers Union v. CenterMark Properties Meriden Sq. Inc., 30 F.3d 298, 305 (2d Cir.1994) (internal quotations omitted). . See Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir.1982) (\"The jurisdictional determination is to be made on the basis of the plaintiffs allegations, not on a decision on the merits.”). . United Food, 30 F.3d at 300 (internal quotations omitted). . See St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 82 L.Ed. 845 (1938). . United Food, 30 F.3d at 305. . Armstrong Cpt ¶ 62. . Annstrong Cpt ¶ 32. . See def. Mem. Ex. B (comparing injuries alleged in Annstrong to those alleged in House, H. Johnson, Love and Teague). The comparison shows that the injuries alleged are substantially the same. . Hill, Hunter, Southern Cpts ¶ 13(G). . Notably, these actions were all filed by the same counsel. See DeAguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir.1993) (defendants \"easily met” their burden \"by showing that many of the same plaintiffs in this action pled damages of up to $5,000,000 in other [fora] for the same injuries”). . See Tr. Jan. 25, 2001 at 30. . See Illinois v. City of Milwaukee, 406 U.S. 91, 100, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972) (where state is plaintiff in suit involving federal rights, “those suits may be brought in or removed to the [federal] courts without regard to the character of the parties.”) (citing Ames v. Kansas, 111 U.S. 449, 470, 4 S.Ct. 437, 28 L.Ed. 482 (1884)); Regents of the University of Minnesota v. Glaxo Wellcome, Inc., 58" }, { "docid": "1686511", "title": "", "text": "688 N.Y.S.2d 25 (1st Dep’t) (vacating the New York Supreme Court’s judgment insolar as it dismissed the petition against Sohrab and otherwise affirming), leave to appeal denied, 93 N.Y.2d 817, 697 N.Y.S.2d 564, 719 N.E.2d 925 (1999). . See First Capital Asset Mgmt., Inc. v. N.A. Partners, L.P., No. 97/602189 (N.Y. Sup.Ct., N.Y. Co. June 27, 2001). . See Oost-Lievense v. North Am. Consortium, Inc., 969 F.Supp. 874 (S.D.N.Y.1997) (HB). . 11 U.S.C. § 727. . See In re Vahabzadeh, Sohrab, No. 97-44779(JHG) (Bankr.S.D.N.Y. Dec. 10, 1999) (chapter 7 case); First Capital Asset Mgmt., Inc. v. Vahabzadeh, No. 97-9107A (Bankr. S.D.N.Y. Dec. 10, 1999) (adversary proceeding). . Cpl. ¶ 152. . Plaintiffs' notice of cross-motion (Mar. 10, 2001). . E.g., Arrowsmith v. United Press Int'l, 320 F.2d 219, 221 (2d Cir.1963) (Friendly, J.). . E.g., Laborers Local 17 Health & Benefit Fund v. Philip Morris, 26 F.Supp.2d 593, 601 (S.D.N.Y.1998) (citing cases); Travelers Indem. Co. v. Inoue, 111 A.D.2d 686, 490 N.Y.S.2d 506, 507 (1st Dep’t 1985). . E.g., Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.), cert. denied, 498 U.S. 854, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990). . De Falco v. Bernas, 244 F.3d 286, 305 (2d Cir.2001) (quoting Pinnacle Consultants, Ltd. v. Leucadia Nat’l Corp., 101 F.3d 900, 904 (2d Cir.1996)) (internal quotation marks omitted). . Cpt. ¶¶ 82-108, 152(a). . See Memorandum of law in support of Vahabzadeh defendants' motion to dismiss, at 11-12; Cpt. ¶¶ 87, 100 (“These transfers violated § 152(7) of the Bankruptcy Code because they were made at a time when Sohrab was contemplating filing for bankruptcy and were implemented with the intention of defeating the purpose of the bankruptcy code.”); id. ¶ 152(a) (same). . Acito v. IMCERA Group, 47 F.3d 47, 52 (2d Cir.1995). . E.g., Moore v. PaineWebber, Inc., 189 F.3d 165, 173 (2d Cir.1999). . Hallwood Realty Partners v. Gotham Partners, L.P., 95 F.Supp.2d 169, 174 (S.D.N.Y. 2000) (quoting Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994)). . See Cpt. ¶ 26. . Moore, 189 F.3d at 172-73 (\"[The complaint must] specify" }, { "docid": "6757968", "title": "", "text": "Ramirez v. Richardson-Merrell, Inc., 628 F.Supp. 85, 86-87 (E.D.Pa.1986); Batiste, 32 N.C.App. at 11, 231 S.E.2d at 275; Bichler, 58 A.D.2d at 333-35, 397 N.Y.S.2d at 58-60). . W. Va.Code § 30-5-12. . In this respect the Court relies on the assertion in plaintiffs' original brief in support of their motion to remand that Oblena is a physician. Defendants do not refute the assertion. . The cases are Hill v. Parke-Davis, No. 00 Civ. 7634, House v. Parke-Davis, No. 00 Civ. 7628, Hunter v. Parke-Davis, No. 00 Civ. 7635, H. Johnson v. Parke-Davis, No. 00 Civ. 7631, Southern v. Parke-Davis, No. 00 Civ. 7636, Teague v. Parke-Davis, No. 00 Civ. 7630, and Love v. Parke-Davis, No. 00 Civ. 7629. . See supra note 1 and accompanying text. . See Bradford v. Harding, 284 F.2d 307, 309 (2d Cir.1960). . Avon Products, Inc. v. A/J Partnership, No. 89 Civ. 3743(PNL), 1990 WL 422416, at * 2 (S.D.N.Y. March 1, 1990) (quoting 14A Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction 2D § 3731 (1985)). See also McKay v. Point Shipping Corp., 587 F.Supp. 41, 42 (S.D.N.Y.1984) (agreement of fraudulently joined party not necessary for removal) (citing Broidy v. State Mutual Life Assurance Co., 186 F.2d 490, 492 (2d Cir.1951)). . No. 00 Civ. 7672. . The cases are Armstrong v. Warner-Lambert Co., No. 00 Civ. 7632, Hill v. Parke-Davis, No. 00 Civ. 7634, Hunter v. Parke-Davis, No. 00 Civ. 7635, and Southern v. Parke-Davis, No. 00 Civ. 7636. . United Food & Commercial Workers Union v. CenterMark Properties Meriden Sq. Inc., 30 F.3d 298, 305 (2d Cir.1994) (internal quotations omitted). . See Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir.1982) (\"The jurisdictional determination is to be made on the basis of the plaintiffs allegations, not on a decision on the merits.”). . United Food, 30 F.3d at 300 (internal quotations omitted). . See St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 82 L.Ed. 845 (1938). . United Food, 30 F.3d at 305. . Armstrong Cpt ¶ 62. ." }, { "docid": "5656036", "title": "", "text": "113. . Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.), cert. denied, 498 U.S. 854, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990). . Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 184 (2d Cir. 1998) (quoting Ball, 902 F.2d at 197). . 15 U.S.C. § 78aa. . SEC v. Unifund SAL, 910 F.2d 1028, 1033 (2d Cir. 1990) (citing Bersch v. Drexel Firestone, Inc., 519 F.2d 974, 998 (2d Cir.), cert. denied, 423 U.S. 1018, 96 S.Ct. 453, 46 L.Ed.2d 389 (1975)). . Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 127 (2d Cir.2002) (citing Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir.1996)). . Id. at 127 (quoting U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 152 (2d Cir.2001)) (in turn quoting Calder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)) (internal quotation marks omitted). . Id. at 129 (quoting Metro. Life Ins., 84 F.3d at 568) (in turn quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)) (internal quotation marks omitted). . Metro. Life Ins., 84 F.3d at 567-68. . Id. (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16 & nn. 8-9, 104 S.Ct. 1868, 80 L.Ed.2d 404(1984)). . Id. at 568 (citing Helicopteros, 466 U.S. at 414-16 & nn. 8-9, 104 S.Ct. 1868). Although the distinction between specific and general jurisdiction originates from a line of cases interpreting the Due Process Clause under the Fourteenth Amendment, the Second Circuit has noted that “the due process analysis is basically the same under both the Fifth and Fourteenth Amendments,” the \"principal difference [being] that under the Fifth Amendment the court can consider the defendant's contacts throughout the United States, while under the Fourteenth Amendment only the contacts with the forum state may be considered.” Chew v. Dietrich, 143 F.3d 24, 28 n. 4 (2d Cir.), cert. denied, 525 U.S. 948, 119 S.Ct. 373, 142 L.Ed.2d 308 (1998) (citing cases); see also In re Magnetic Audiotape, 334 F.3d" }, { "docid": "22848323", "title": "", "text": "raised sua sponte as a basis for dismissing a case, it follows that those affirmative defenses are not automatically waived when the defendant fails to raise the defense in their answer. Thus, where the court at the outset of the case becomes aware that a claim was barred by res judicata at the time of the filing of the complaint, it cannot be said that the court cannot be certain that res judicata will be applied to the case since it is in the court’s authority to do so. It would be completely illogical to extend to those affirmative defenses that may be raised sua sponte the rule precluding defenses from being considered in a 12(b)(1) motion to dismiss. The precedent cited by the majority, Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199 (2d Cir.1982), is not relevant to the case at hand. In that case, this court reversed the district court’s dismissal of the suit for failure to meet the jurisdictional minimum on the ground that a valid defense does not deprive a federal court of jurisdiction. Id. at 202. In Zacharia, the challenge to jurisdiction was based on the substantive issue of whether the defendant’s liability was limited by statute to an amount below the minimum statutory jurisdictional amount. Id. at 202-03. Nowhere does Zacharia discuss affirmative defenses, nor does it discuss the effect of res judicata on the amount in controversy requirement. The majority opinion also cites Ochoa v. Interbrew Am., Inc., 999 F.2d 626 (2d Cir.1993), merely to quote the language in the Supreme Court decision in St. Paul, which states that “the fact that the complaint discloses the existence of a valid defense to the claim” is not sufficient in and of itself to show the plaintiffs bad faith or to oust the jurisdiction of the court. Id. at 628 (quoting St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938)). But in Interbrew, the challenge to jurisdiction was based on the substantive issue of whether the contract in dispute was terminable at" }, { "docid": "8597957", "title": "", "text": "complaint alleging a claim for actual fraud. Conclusion For the foregoing reasons, defendant’s motion for summary judgment dismissing the complaint is granted. Plaintiff may file an amended complaint alleging a claim for actual fraud within 30 days from the date of this opinion. SO ORDERED. . PI. Mem. 2; Whitney Decl. ¶¶ 2, 3. . Whitney Decl. ¶ 3. . Id. ¶ 6. . Id.\\ Rendigs Decl. ¶ 2; Def. Mem. 5. . Smith Decl. Ex. J; Whitney Decl. ¶ 8; Rendigs Decl. ¶ 5. . Smith Decl. Ex. D; Def. Mem.-14. . Def. Mem. 14. . Smith Decl. Ex. E; Def. Mem. 18. . Rendigs Decl. Ex. B. . Def. Mem. 5-6. . Smith Decl. Ex. B, at 245-46. . Id. at 385-86. . Id. at 386-98. . Id. at 393. . “The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between (1) citizens of different states ....\" 28 U.S.C. § 1332(a). . Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994). . Id. . St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938) (emphasis added). . Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir.1982). . Burg v. Horn, 380 F.2d 897, 899 (2d Cir.1967); Wolff v. Wolff, 67 N.Y.2d 638, 641, 490 N.E.2d 532, 534, 499 N.Y.S.2d 665, 667 (1986); Blaustein v. Pan American Petroleum & Transport Co., 293 N.Y. 281, 300, 56 N.E.2d 705, 713 (1944). . Stoeckel v. Block, 170 A.D.2d 417, 418, 566 N.Y.S.2d 625, 626 (1st Dep't 1991); E.W. Bruno Co. v. Friedberg, 21 A.D.2d 336, 341, 250 N.Y.S.2d 187, 192 (1st Dep’t 1964) (quoting Duane Jones Co. v. Burke, 306 N.Y. 172, 192, 117 N.E.2d 237, 247 (1954)). . See infra. . See Allard v. Arthur Andersen & Co., 924 F.Supp. 488, 493 (S.D.N.Y.1996); AFA Protective Systems, Inc. v. American Tel. & Tel. Co., 57 N.Y.2d 912, 914, 442 N.E.2d 1268, 1269, 456 N.Y.S.2d 757," }, { "docid": "17183061", "title": "", "text": "303 U.S. 283, 288, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir.1982)). . Hopkins Cpt. ¶ 62. . Id. ¶¶ 86, 83. Similar claims are made in the PEC's Consolidated Amended Class Action Complaint. . 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). . 414 U.S. 291, 294-300, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973). . Zahn, 414 U.S. at 294, 94 S.Ct. 505 (quoting Troy Bank of Troy, Indiana v. G.A. Whitehead & Co., 222 U.S. 39, 40-41, 32 S.Ct. 9, 56 L.Ed. 81 (1911)). See also Gilman v. BHC Securities, Inc., 104 F.3d 1418, 1422-23 (2d Cir.1997). . Zahn, 414 U.S. at 294, 94 S.Ct. 505. .PL Reply Mem. at 3-4. . 104 F.3d 1418. . Id. at 1423 (quoting Bishop v. General Motors Corp., 925 F.Supp. 294, 298 (D.N.J.1996)). . Id. (citing Black v. Beame, 550 F.2d 815, 818 (2d Cir.1977)). . Plaintiff cites also Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291 (2d Cir.2000) and Rock Drilling Local Union No. 17 v. Mason & Hanger Co., 217 F.2d 687 (2d Cir.1954), cert. denied, 349 U.S. 915, 75 S.Ct. 604, 99 L.Ed. 1249 (1955), but these cases are inappo-site. Although plaintiffs in Mehlenbacher sought injunctive relief in the form of cleanup of a mine collapse, stabilization of the mine and flood control, they primarily sought compensatory and punitive damages for individual personal injuries suffered as a result of the mine’s collapse. The Court appeared to deny aggregation on that ground, as it did not even address the claims for injunctive relief. See Mehlenbacher, 216 F.3d at 296-96 (holding claims not aggregable because \"they seek recovery for their losses as individuals only,” and citing Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia S.A., 988 F.2d 559, 563 (5th Cir.1993), which denied aggregation for similar personal injury claims). Rock Drilling involved a claim for damages suffered by union members as a result of the union leader’s payment of a $36,000 bribe; the Court denied aggregation because plaintiff's" }, { "docid": "5957083", "title": "", "text": "F.2d 194 (2d Cir.), cert. denied, 498 U.S. 854, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990). . Id. at 197. . Id. . See Barrett v. United States, 646 F.Supp. 1345, 1350 (S.D.N.Y.1986); accord Dardana Ltd. v. Yuganskneftegaz, No. 00 Civ. 4633(DAB), 2001 WL 1131987, at *2 (S.D.N.Y. Sept. 24, 2001); Coan v. Bell Atl. Sys. Leasing Int’l, Inc., 813 F.Supp. 929, 942 (D.Conn.1990); see also Jazini v. Nissan Motor Co., 148 F.3d 181, 184, 185 (2d Cir.1998); Cornell v. Assicurazioni Generali S.p.A., No. 97 Civ. 2262, 2000 WL 1099844, at *1 (S.D.N.Y. Aug. 7, 2000) (quoting Jazini, 148 F.3d at 185). . Yellow Page Solutions, Inc. v. Bell Atl. Yellow Pages Co., No. 00 Civ. 5663(MBM), 2001 WL 1468168, at *3 (S.D.N.Y. Nov. 19, 2001) (quoting Ball, 902 F.2d at 197) (footnote added); accord Morrison v. N.Y. State Div. for Youth Children & Family Servs., No. 98 Civ. 643, 2000 WL 532762, at *1 (S.D.N.Y. Apr. 25, 2000); Gulf Union Ins. Co. Saudi Arabia v. Bella Shipping Co., No. 91 Civ. 2814(PKL), 1994 WL 455117, at *2 (S.D.N.Y. Aug. 22, 1994). Certain language from recent Second Circuit opinions, if taken out of context, might suggest that no factual support is required on Rule 12(b)(2) motion after jurisdictional discovery but before an evidentiary hearing or trial. See, e.g., Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir.1996) (indicating that, after jurisdictional discovery, but before an evidentiary hearing, \" 'the plaintiffs prima facie showing, necessary to defeat a jurisdiction testing motion, must include an averment of facts that, if credited by [the ultimate trier of fact], would suffice to establish jurisdiction over the defendant,' ” without adding language from Ball indicating that factual support is required (quoting Ball, 902 F.2d at 197)), cert. denied, 519 U.S. 1006, 117 S.Ct. 508, 136 L.Ed.2d 398 (1996); Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 240 (2d Cir.1999) (same). Without a specific holding on this point, the Court declines to impute to the Second Circuit a view that would require a district court to proceed to an evidentiary hearing or trial" }, { "docid": "3989159", "title": "", "text": "or estoppel. Kokkonen v. Guardian Life Ins. Co. of America, — U.S. -, -, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994); Bender v. Williamsport Area School District, 475 U.S. 534, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). Hence, the Court must determine whether the jurisdictional amount is present. In order to justify dismissal, “[i]t must appear to a legal certainty that the claim is really for less than the jurisdictional amount....” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938). In this Circuit, the damage allegations in the complaint ordinarily must be taken at face value “even where those allegations leave grave doubt about the likelihood of a recovery of the requisite amount_” Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir.1982). This is particularly so where the plaintiff is seeking unliquidated tort damages. Tongkook America, Inc. v. Shipton Sportswear Co., 14 F.3d 781, 785 (2d Cir.1994). Here it is perfectly plain that plaintiff has no hope whatever of recovering anything approaching $5 million. Nevertheless, the Court is not prepared to conclude to a legal certainty that plaintiff’s recovery, if the case went to trial, could not exceed $50,000. Accordingly, plaintiffs attack on the Court’s jurisdiction is rejected. Although the point has not been raised by the parties, the Court notes an additional question as to the existence of subject matter jurisdiction — the fact that the removal petition was filed more than thirty days after the service on Cunard by service on the Secretary of State. See 28 U.S.C. § 1446(b) (requiring removal within thirty days after receipt by the defendant of a copy of the initial pleading). The heavy weight of authority is to the effect that the time for removal, in cases in which service is made on a statutory agent, runs from receipt of the pleading by the defendant rather than the statutory agent. Compare, e.g., Skidaway Assoc., Ltd. v. Glens Falls Ins. Co., 738 F.Supp. 980 (D.S.C.1990); Farris v. Youngblood, 248 F.Supp. 598, 599 (E.D.Tenn.1965); Barber v. Willis, 246 F.Supp. 814," }, { "docid": "17183060", "title": "", "text": "court could dispose of a plaintiff's case solely on their failure to file an expert report by the deadline, the timeliness standard for a motion under § 1301(g) would be rendered a nullity. The Court notes also that the statute's clear language does not on its face undermine the statute's goals of alleviating vexatious and frivolous litigation, see Tex. Civ. Stat. Ann Art. 4590i § 1.02(a). In not mandating dismissal absent the consent of physician and hospital defendants, the statute allows those faced with medical malpractice suits the option of defending the case on the merits — an option physicians with a particularly strong defense might prefer to prevailing \"on a technicality.” . In fact, James Terry, M.D., the physician defendant in Brown, has submitted a brief in support of plaintiffs’ motion to remand. . No. 01 Civ. 484. . Rezulin I, 133 F.Supp.2d at 295-96 (quoting United Food and Commercial Workers Union v. CenterMark Properties Meriden Sq., Inc., 30 F.3d 298, 305 (2d Cir.1994); citing St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir.1982)). . Hopkins Cpt. ¶ 62. . Id. ¶¶ 86, 83. Similar claims are made in the PEC's Consolidated Amended Class Action Complaint. . 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). . 414 U.S. 291, 294-300, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973). . Zahn, 414 U.S. at 294, 94 S.Ct. 505 (quoting Troy Bank of Troy, Indiana v. G.A. Whitehead & Co., 222 U.S. 39, 40-41, 32 S.Ct. 9, 56 L.Ed. 81 (1911)). See also Gilman v. BHC Securities, Inc., 104 F.3d 1418, 1422-23 (2d Cir.1997). . Zahn, 414 U.S. at 294, 94 S.Ct. 505. .PL Reply Mem. at 3-4. . 104 F.3d 1418. . Id. at 1423 (quoting Bishop v. General Motors Corp., 925 F.Supp. 294, 298 (D.N.J.1996)). . Id. (citing Black v. Beame, 550 F.2d 815, 818 (2d Cir.1977)). . Plaintiff cites also Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291 (2d Cir.2000) and Rock Drilling" }, { "docid": "3989158", "title": "", "text": "now move for summary judgment dismissing the complaint on the ground of untimeliness and, in Cunard’s case, on the ground that there is no conceivable basis of liability against Cunard, which merely acted as Commodore’s agent in selling the ticket to plaintiff. Discussion Subject Matter Jurisdiction In an effort to avoid an adverse ruling on the merits, plaintiff claims that this Court lacks subject matter jurisdiction and that the case therefore should be remanded. Notwithstanding his demand for damages of $5 million, he now asserts that he cannot possibly recover more than the $50,000 jurisdictional amount. It of course is offensive for a plaintiff to file a complaint for $5 million and then, finding himself hoist by his own petard into a forum not to his liking, to have him assert in an effort to escape that he has no realistic hope of recovering even one percent of that amount. Indeed, “offensive” is too mild a term. But this is a court of limited jurisdiction, and jurisdiction may not be conferred upon it by agreement or estoppel. Kokkonen v. Guardian Life Ins. Co. of America, — U.S. -, -, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994); Bender v. Williamsport Area School District, 475 U.S. 534, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). Hence, the Court must determine whether the jurisdictional amount is present. In order to justify dismissal, “[i]t must appear to a legal certainty that the claim is really for less than the jurisdictional amount....” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938). In this Circuit, the damage allegations in the complaint ordinarily must be taken at face value “even where those allegations leave grave doubt about the likelihood of a recovery of the requisite amount_” Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir.1982). This is particularly so where the plaintiff is seeking unliquidated tort damages. Tongkook America, Inc. v. Shipton Sportswear Co., 14 F.3d 781, 785 (2d Cir.1994). Here it is perfectly plain that plaintiff has no hope whatever of recovering anything" }, { "docid": "22848311", "title": "", "text": "the federal court has the burden of proving that it appears to a ‘reasonable probability’ that the claim is in excess of the statutory jurisdictional amount.” Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir.1994) (quoting Moore v. Betit, 511 F.2d 1004, 1006 (2d Cir.1975)). This burden is hardly onerous, however, for we recognize “a rebuttable presumption that the face of the complaint is a good faith representation of the actual amount in controversy.” Wolde-Meskel v. Vocational Instruction Project Cmty. Servs., Inc., 166 F.3d 59, 63 (2d Cir.1999). To overcome the face-of-the-complaint presumption, the party opposing jurisdiction must show “to a legal certainty” that the amount recoverable does not meet the jurisdictional threshold. Id. (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 82 L.Ed. 845 (1938)). Our cases have set a high bar for overcoming this presumption. “[T]he legal impossibility of recovery must be so certain as virtually to negative the plaintiffs good faith in asserting the claim.” Chase Manhattan Bank, N.A. v. Am. Nat. Bank and Trust Co. of Chicago, 93 F.3d 1064, 1070-71 (2d Cir.1996) (quoting Tongkook, 14 F.3d at 785). “[E]ven where [the] allegations leave grave doubt about the likelihood of a recovery of the requisite amount, dismissal is not warranted.” Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir.1982); see also Tongkook, 14 F.3d at 785 (“Where the damages sought are uncertain, the doubt should be resolved in favor of the plaintiffs pleadings.”) Two further points by way of legal background are in order. First, we measure the amount in controversy as of the date of the complaint. Once jurisdiction has attached, it cannot be ousted by subsequent events. See Wolde-Meskel, 166 F.3d at 62 (discussing the “time of filing” rule for determining the amount in controversy). Second, affirmative “defenses asserted on the merits” may not be used to whittle down the amount in controversy. Zacharia, 684 F.2d at 202. Were such defenses to affect the jurisdictional amount, we have said, “doubt and ambiguity would surround the jurisdictional base of" }, { "docid": "22163426", "title": "", "text": "jurisdiction over the defendant when served with a Rule 12(b)(2) motion to dismiss. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994). A plaintiff may carry this burden “by pleading in good faith ... legally sufficient allegations of jurisdiction, i.e., by making a ‘prima facie showing’ of jurisdiction.” Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 184 (2d Cir.1998) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990)). A plaintiff can make this showing through his “own affidavits and supporting materials[,]” Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981), containing “an averment of facts that, if credited ..., would suffice to establish jurisdiction over the defendant.” Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.8d 560, 567 (2d Cir.1996) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990)). “[W]here the issue is addressed on affidavits, all allegations are construed in the light most favorable to the plaintiff and doubts are resolved in the plaintiffs favor!.]” A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir.1993). In assessing whether personal jurisdiction is authorized, “the court must look first to the long-arm statute of the forum state, in this instance New York.” Bensusan Rest. Corp. v. King, 126 F.3d 25, 27 (2d Cir.1997). “If the exercise of jurisdiction is appropriate under that statute, the court must decide whether such exercise comports with the requisites of due process.” Id. Because we agree with the district court that Whitaker failed to establish injury in New York and, hence, long arm jurisdiction, we do not reach his due process argument. The New York long arm statute authorizes personal jurisdiction over non-domiciliaries under several circumstances, see N.Y.C.P.L.R. § 302(a), including those cases where the non-domiciliary “commits a tortious act [outside] the state causing injury to person and property within the state, [among other requirements].” N.Y.C.P.L.R. § 302(a)(3) (McKinney’s 2001). “[C]ourts determining whether there is injury in New York sufficient to warrant § 302(a)(3) jurisdiction must generally apply a situs-of-injury test, which asks them to locate the ‘original event which" } ]

[ { "docid": "6324271", "title": "", "text": "under 18 U.S.C. § 922(g)(1). We had to decide whether his prior state convictions constituted felonies, which were defined as “crime[s] punishable by imprisonment for a term exceeding one year.” Id. at 1153. The Murillo case originated in the State of Washington, which has a guidelines regime similar to Oregon’s. Murillo argued that his prior crimes were not felonies because, under the Washington Sentencing Guidelines, he could not have received a maximum sentence of one year and, in fact, he was sentenced to a term of only 10 months. We rejected that argument, holding: Here, we hold that Blakely [v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004),] did not change the definition of what constitutes a maximum sentence under state law for purposes of prosecution under 18 U.S.C. § 922(g)(1): the maximum sentence is the statutory maximum sentence for the offense, not the maximum sentence available in the particular case under the sentencing guidelines. Id. at 1154 (emphasis added). It is true that 18 U.S.C. § 922(g) requires that the predicate offense be “punishable by imprisonment for a term exceeding one year,” while ACCA requires, for a “serious drug offense,” a “maximum term of imprisonment of ten years or more” as “'prescribed by law,” 18 U.S.C. § 924(e)(2)(A)(ii) (emphasis added). Although the phrasing differs slightly, we conclude that neither formulation suggests that we look to sentencing guidelines to the exclusion of the statutes. If anything, “punishable” would appear to point more specifically to time spent in prison, while “prescribed by law” would appear to point more to the statute. If the former phrase requires that we use the statutory maximum, a fortiori, the latter phrase does too. For these reasons, we hold that all three of Defendant’s prior drug-related convictions constituted “serious drug offenses” under ACCA. AFFIRMED. . Defendant also challenges his convictions and sentence on other grounds. We have rejected those arguments in a memorandum disposition filed this date. . We review de novo a district court's determination that a prior conviction constitutes a predicate offense under 18 U.S.C. § 924 of ACCA. United States" } ]

[ { "docid": "23069211", "title": "", "text": "in accordance with the ACCA. I. BACKGROUND In June of 2003, the Government charged James with possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). James pled guilty as charged. The Government sought to have James’s sentence enhanced under the ACCA, 18 U.S.C. § 924(e). The ACCA provides a mandatory minimum term of imprisonment of 15 years for any person who violates 18 U.S.C. § 922(g) after three convictions in either federal or state court for a “violent felony” or “serious drug offense.” See § 924(e). In 1997, James was convicted in a Florida state court of attempted burglary of a dwelling, in violation of Florida Statute §§ 810.02 and 777.04. In 1998, James was convicted in Florida state court of trafficking in illegal drugs in violation of Florida Statute § 893.135. Later that year, James was again convicted in Florida state court under the same statute for trafficking in cocaine by possession of between 200 and 400 grams of cocaine. Based on James’s three prior felony convictions, the probation officer recommended that James be sentenced as an armed career criminal under the ACCA. At sentencing, James objected, arguing that neither his attempted burglary conviction, nor his trafficking by possession conviction, should count as a predicate conviction under the ACCA. The district court concluded that James’s attempted burglary conviction was a “violent felony” under § 924(e)(2)(B) of the ACCA. The district court also concluded, however, that James’s trafficking by possession conviction did not qualify as a “serious drug offense” under § 924(e)(2)(A) of the ACCA, reasoning that the Florida statute under which James was convicted did not include as an element of proof that James had intended to distribute his 200 to 400 grams of cocaine. Therefore, the district court refused to enhance James’s sentence under the ACCA because he did not qualify as an armed career criminal, as he had only two predicate convictions. The district court sentenced James to 71 months’ imprisonment, followed by 36 months’ supervised release. The Government now appeals the district court’s decision not to count" }, { "docid": "20401087", "title": "", "text": "do, and yet given all the gloss and all the complexity, its intent is sometimes frustrated.... [I]t strikes me that at the end of the day, whether [Terrell’s prior offenses] fit nicely within the categorical approach or the modified categorical approach, that, at a minimum, they fit within the residual clause of [the ACCA] as violent felonies. However, the court granted the government’s motion for a downward departure of two levels for substantial assistance and sentenced Terrell at the low end of the post-departure Guidelines range: 188 months’ imprisonment, followed by a five-year term of supervised release. Terrell timely appealed. II Terrell argues that the district court erred in imposing an enhanced sentence under the ACCA, contending that his prior felony convictions do not qualify as “violent felonfies].” “We review de novo whether a prior conviction is a predicate felony under the ACCA.” United States v. Grisel, 488 F.3d 844, 846 (9th Cir.2007) (en banc). We first review the complex statutory and legal framework governing this case. Terrell was convicted under 18 U.S.C. § 922(g), which prohibits previously convicted felons from possessing firearms. In the ordinary case, the maximum penalty for violating § 922(g) is a fine and imprisonment for up to ten years. See 18 U.S.C. § 924(a)(2). However, a defendant convicted of violating § 922(g) who “has three previous convictions ... for a violent felony” is subject to a fifteen-year mandatory minimum sentence. Id. § 924(e)(1). The ACCA defines “violent felony” as any crime punishable by imprisonment for a term exceeding one year ... that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another!.] Id. § 924(e)(2)(B). The government has conceded that none of Terrell’s prior convictions fits within the first provision of the “violent felony” definition—those felonies that “hafve] as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. §" }, { "docid": "19459839", "title": "", "text": "BALDOCK, Circuit Judge. In 2011, Defendant Cory Devon Washington pleaded guilty in the Western District of Oklahoma to two firearm-related offenses. The district court sentenced him to fifteen years' imprisonment under the Armed Career Criminal Act (ACCA). After Johnson v. United States , --- U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), invalidated the ACCA's residual clause, Defendant filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Notably, this motion was his second § 2255 motion. The district court dismissed the motion because Defendant did not establish the sentencing court relied on the residual clause for any of his ACCA predicate offenses. Exercising jurisdiction under 28 U.S.C. § 2253(a), we affirm. I. In June 2011, pursuant to a plea agreement, Defendant pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and one count of possessing an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5845(f). Under the ACCA, a defendant convicted of being a felon in possession of a firearm faces a minimum of fifteen years' imprisonment if the defendant has three previous convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). At the time of Defendant's sentencing, a violent felony was defined as \"any crime punishable by imprisonment for a term exceeding one year\" that (1) \"has as an element the use, attempted use, or threatened use of physical force against the person of another\" (the elements clause); (2) \"is burglary, arson, or extortion, involves use of explosives\" (the enumerated offense clause); or (3) \"otherwise involves conduct that presents a serious potential risk of physical injury to another\" (the residual clause). § 924(e)(2)(B). Defendant's presentence investigation report (PSR) recommended an enhanced sentence under the ACCA based on three prior felony convictions: (1) a juvenile adjudication for pointing a weapon; (2) assault and battery with a dangerous weapon; and (3) burglary in the second degree. Defendant objected to the PSR's recommended sentence, arguing only that the juvenile adjudication for pointing a weapon did not qualify as a predicate" }, { "docid": "6631145", "title": "", "text": "Opinion by Judge BEA; Concurrence by Judge TASHIMA. OPINION BEA, Circuit Judge: Ryan Snyder pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He does not appeal his conviction. At sentencing, the government requested a sentencing enhancement under the Armed Career Criminal Act (“ACCA”), alleging Snyder had three prior convictions for violent felonies as defined in 18 U.S.C. § 924(e)(2): (1) On or about October 23, 2003, in the Josephine County Circuit Court, State of Oregon, Case No. 02-CR-0791, for burglary in the second degree and assault in the second degree, with a 50-month sentence; (2) On or about February 11, 2000, in the Josephine County Circuit Court, State of Oregon, Case No. 99-CR-0801, for burglary in the second degree, with a 6-month sentence; (3) On or about May 9, 1999, in the Josephine County Circuit Court, State of Oregon, Case No. 99-CR-0362, for felony attempt to elude, with a 6-month sentence. The district court held Snyder’s October 23, 2003 conviction for assault in the second degree was a predicate offense under ACCA. Neither party appeals that determination. We have previously held that assault in the second degree in Oregon is a violent felony for ACCA. United States v. Crews, 621 F.3d 849, 852-53 (9th Cir.2010). The district court also held the February 11, 2000 conviction for burglary in the second degree under Oregon Revised Statutes (“ORS”) § 164.215 was a predicate offense under ACCA. Snyder appeals that determination. Finally, the district court held the May 9, 1999 conviction for felony attempt to elude the police ORS § 811.540(1) was not a predicate offence under ACCA. The government cross-appeals that determination. Having found only two predicate offenses, instead of three as required for a sentencing enhancement under ACCA, the district court did not apply the mandatory minimum sentence of 15 years (180 months) in 18 U.S.C. § 924(e)(2), and instead sentenced Snyder to the bottom of the Guidelines’ Range — 110 months. We review a district court’s decision as to whether a prior conviction is a predicate felony" }, { "docid": "6631146", "title": "", "text": "in the second degree was a predicate offense under ACCA. Neither party appeals that determination. We have previously held that assault in the second degree in Oregon is a violent felony for ACCA. United States v. Crews, 621 F.3d 849, 852-53 (9th Cir.2010). The district court also held the February 11, 2000 conviction for burglary in the second degree under Oregon Revised Statutes (“ORS”) § 164.215 was a predicate offense under ACCA. Snyder appeals that determination. Finally, the district court held the May 9, 1999 conviction for felony attempt to elude the police ORS § 811.540(1) was not a predicate offence under ACCA. The government cross-appeals that determination. Having found only two predicate offenses, instead of three as required for a sentencing enhancement under ACCA, the district court did not apply the mandatory minimum sentence of 15 years (180 months) in 18 U.S.C. § 924(e)(2), and instead sentenced Snyder to the bottom of the Guidelines’ Range — 110 months. We review a district court’s decision as to whether a prior conviction is a predicate felony under ACCA de novo. United States v. Mayer, 560 F.3d 948, 956 (9th Cir.2009). We affirm in part and reverse in part. A. ACCA ACCA defines a “violent felony” as any crime “punishable by imprisonment for a term exceeding one year” that: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. ... 18 U.S.C. § 924(e)(2)(B) (emphasis added). The italicized portion is known as ACCA’s “residual clause.” B. Although burglary in the second degree under ORS § 164.215 is not categorically a violent felony under ACCA, Snyder’s conviction is a violent felony under the modified categorical approach. We have already determined that burglary in the second degree under Oregon law “is not a categorical burglary for purposes of ACCA because it encompasses crimes that fall outside the federal definition of generic burglary.” United States v. Grisel, 488 F.3d" }, { "docid": "2019919", "title": "", "text": "criminal codes. Under the statute, any person who violates the felon-in-possession statute, 18 U.S.C. § 922(g), and has three previous “violent felony” convictions must be designated an armed career criminal. 18 U.S.C. § 924(e)(1). This designation carries a mandatory sentence of not less than fifteen years. Id. The ACCA, 18 U.S.C. § 924(e)(2)(B), defines the term “violent felony” as any crime punishable by imprisonment for more than one year that (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another,” or (2) “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Mathias concedes that his two prior burglary convictions are “violent felon[ies]” under the Armed Career Criminal Act and qualifying predicate offenses for an armed career criminal designation. He contends, however, that his felony escape conviction does not constitute a “violent felony,” and that the district court’s imposition of the ACCA’s statutory minimum fifteen-year sentence was unlawful. We review de novo the district court’s conclusion that Mathias’ escape conviction qualifies as a “violent felony.” United States v. Green, 436 F.3d 449, 456 (4th Cir.2006). A. Mathias first argues that his escape conviction does not constitute a “violent felony” under the ACCA because the particular circumstances of his escape—he walked away from a work release program—presented no risk of serious injury. He urges us to “loo[k] beyond the definition of the charging document and statute” and parse the underlying factual basis of his conviction. This argument ignores settled law: in this circuit, as in others, the question of whether an escape is a “violent felony” is a categorical one. See, e.g., United States v. Wardrick, 350 F.3d 446, 454 (4th Cir.2003); United States v. Hairston, 71 F.3d 115, 117 (4th Cir.1995); see also Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under the categorical approach, we consider the nature of the offense as defined by statute, not the conduct and circumstances underlying a specific conviction. Wardrick, 350 F.3d at" }, { "docid": "11581426", "title": "", "text": "the district court’s denial of Mays’s motion and remand for resentencing. I. SENTENCING UNDER THE ACCA To provide the legal context for Mays’s appeal, we begin with a brief discussion of Descamps, Johnson, and the relevant portions of § 924(e). Under § 924(e)(1), “a person who violates 18 U.S.C. § 922(g) and has three previous convictions for a violent felony or a serious drug offense is Subject to additional fines and a fifteen-year minimum sentence (and has an enhanced guidelines sentence under U.S.S.G. § 4B1.4).” United States v. Petite, 703 F.3d 1290, 1293 (11th Cir.2013) (internal quotation marks omitted); see also 18 U.S.C. § 924(e)(1). The ACCA defines a violent felony as “any crime punishable by imprisonment for a term exceeding one year” that: (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another”; (2) “is burglary, arson, or extortion [or] involves use of explosives”; or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). These three “clauses” are known as the “elements clause,” the “enumerated clause,” and the “residual clause,” respectively. The Court in Descamps addressed our approach to determining, whether a crime constitutes a violent felony under the enumerated clause. The enumerated clause only includes.prior convictions fpr “gener.ic” versions of the offenses it lists. See Descamps, 133 S.Ct. at 2281. There are two approaches for determining whether an offense is generic: the “categorical approach” and the “modified categorical approach.” See id. Under the categorical approach, we “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of. the generic crime.” Id. (internal quotation marks omitted). “The prior conviction qualifies as an ACCA predicate only if the statute’s elements are the same as, or narrower than, those of the generic offense.” Id. In contrast, under the modified categorical approach, we may look beyond the statutory elements of the prior conviction and consider a “limited class of documents, such as indictments and jury instructions,” to determine whether the conviction was for a generic offense." }, { "docid": "14647396", "title": "", "text": "mandatory fifteen-year minimum sentence for violators of § 922(g) who have three prior convictions for violent felonies. Melton preserved the right to argue that he was not subject to the ACCA. In its Presentence Investigation Report (“PSR”), the United States Probation Office concluded that Melton was subject to sentencing under the ACCA because he had at least four prior felony convictions that met the definition of “violent felony” under the statute: two 1976 convictions in Alexandria, Virginia for armed robbery and statutory burglary; a 1982 conviction in Arizona for residential burglary; and a 1984 conviction in Fairbanks, Alaska for Robbery and Nighttime Burglary in an Occupied Dwelling. The PSR also listed, as part of Melton’s criminal history, a 1990 conviction in Palmer, Alaska for second degree sexual abuse of a minor. At his sentencing hearing, Melton conceded that the 1984 Fairbanks conviction qualified as a predicate felony under the ACCA. He contested the inclusion of the remaining convictions. The district court did not count the 1982 Arizona burglary as an ACCA- predicate felony because there was insufficient documentation of the conviction. The court concluded, however, that Melton still met the prerequisites for an ACCA sentencing enhancement because the other convictions qualified as violent felonies. Although the court found that either of the 1976 Virginia convictions could count as a violent felony, it counted only one of the convictions for sentencing purposes because the convictions did not occur on different occasions, as required under § 924(e)(1) of the ACCA. The court sentenced Melton to the statutory minimum of fifteen years. Discussion The ACCA’s penalty enhancement provisions are applicable if a defendant has been convicted, on separate occasions, of three violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). A “violent felony” is defined as: any crime punishable by imprisonment for a term exceeding one year ... that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical" }, { "docid": "17981904", "title": "", "text": "ACCA, 18 U.S.C. § 924(e), requires the defendant to violate § 922(g) after three prior convictions for a “violent felony” or a “serious drug offense,” as these terms are defined by the statute. If the ACCA applied to Whindleton’s criminal history, he faced a mandatory minimum sentence of fifteen years. 18 U.S.C. § 924(e)(1). If not, he faced a maximum sentence of ten years. Id. § 924(a)(2). At sentencing, Whindleton conceded that his Massachusetts conviction for Pos session with Intent to Distribute qualified as a “serious drug offense.” Over Whin-dleton’s objection, the district court concluded that Whindleton’s New York conviction for Criminal Sale of a Controlled Substance in the Third Degree also qualified as a “serious drug offense,” and that Whindleton’s Massachusetts conviction for ADW qualified as “a violent felony.” As a result, the district court imposed the mandatory minimum sentence under the ACCA of 180 months, or 15 years. II. Section 922(g)(1) prohibits any person who has been convicted of a crime punishable by imprisonment for a term exceeding one year from shipping, possessing, or receiving firearms. 18 U.S.C. § 922(g)(1). The ACCA increases the mandatory minimum sentence for this crime to fifteen years if the defendant has three prior convictions for “a violent felony or a serious drug offense, or both, committed on occasions different from one another.” Id. § 924(e)(1). In this case, Whindleton argues that the district court erred when it concluded that his conviction for Criminal Sale of a Controlled Substance in the Third Degree qualified as a “serious drug offense,” and that his conviction for ADW qualified as a “violent felony.” Whether a prior conviction qualifies as an ACCA predicate offense is a legal question we review de novo. United States v. Carrigan, 724 F.3d 39, 48 (1st Cir.2013). We employ a categorical approach, under which “we may consider only the offense’s legal definition, forgoing any inquiry into how the defendant may have committed the offense.” United States v. Holloway, 630 F.3d 252, 256 (1st Cir.2011); see also United States v. Bryant, 571 F.3d 147, 157 n. 7 (1st Cir.2009) (applying the samé approach" }, { "docid": "14444259", "title": "", "text": "18 U.S.C. § 924(e)(1)). The district court held that Mayer’s prior burglary conviction was a “violent felony” under the ACCA, and that Mayer’s other two prior convictions were “serious drug offenses” under the ACCA. A. Mayer’s Burglary Conviction Mayer argues that the district court erred by holding that his 1994 Oregon conviction for first-degree burglary qualified as a predicate “violent felony.” The ACCA defines a “violent felony” as any crime punishable by imprisonment of more than a year that: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. See 18 U.S.C. § 924(e)(2)(B). To determine whether Mayer’s state conviction for burglary constitutes generic “burglary” under the ACCA, we first apply the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 599-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under the categorical approach, we look only to the state’s statutory definition of the crime, and not to the specific conduct underlying the conviction. See United States v. Wenner, 351 F.3d 969, 972 (9th Cir.2003). A state conviction is a predi cate “burglary” offense if it has “the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor, 495 U.S. at 599, 110 S.Ct. 2143. Under Oregon law, a person commits first-degree burglary if he violates [the second degree burglary statute] and the building is a dwelling, or if in effecting entry or while in a building or in immediate flight therefrom the person: (a) Is armed with a burglary tool or theft device ... or a deadly weapon; (b) Causes or attempts to cause physical injury to any person; or (c) Uses or threatens to use a dangerous weapon. Or.Rev.Stat. § 164.225(1). A person commits second-degree burglary if he “enters or remains unlawfully in a building with intent to commit a crime therein.” Or. Rev.Stat. § 164.215(1). A “building”" }, { "docid": "20948693", "title": "", "text": "single-count Indictment with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Alexander pled guilty to the Indictment without a plea agreement with the government. The presentence investigation report (“PSR”) concluded that Alexander had “three prior convictions for a violent felony or a serious drug offense, or both,” which qualified as violent felonies under the Armed Career Criminal Act (“ACCA”), codified at § 924(e), and indicated that one of Alexander’s prior “violent felonies” was a Missouri state court Assault Second Degree conviction. Alexander objected to the PSR’s finding that his Assault Second Degree conviction under Missouri Revised Statute § 565.060 was a crime of violence under the ACCA. The district court considered documents from Alexander’s Missouri state court prosecution, overruled Alexander’s objections, and held that the Assault Second Degree conviction constituted a predicate offense under § 924(e). Alexander was sentenced to 180 months imprisonment, the minimum sentence allowed under the ACCA. 18 U.S.C. § 924(e)(1). Absent the ACCA enhancement, the maximum allowable sentence for being a felon in possession of a firearm in violation of § 922(g) is 120 months imprisonment. 18 U.S.C. § 924(a)(2). II. A. On appeal, Alexander maintains that the district court erred in counting his Assault Second Degree conviction as a qualifying violent' felony for ACCA purposes. The government contends that, under the modified categorical approach, Alexander’s Missouri conviction for Assault Second Degree constitutes a violent felony and was properly counted as a predicate offense. “Having jurisdiction pursuant to 28 U.S.C. § 1291, we review de novo the district court’s legal determination that the prior convictions serve as predicate offenses under the ACCA.” United States v. Cole, 778 F.3d 1055, 1055 (8th Cir.2015) (per curiam). Under the ACCA, a defendant is subject to a mandatory fifteen-year minimum sentence on a felon-in-possession conviction if the defendant has three previous convictions “for a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). The ACCA provides two categories of crimes that constitute a “violent felony.” If the crime “has as an element the use, attempted use, or" }, { "docid": "10160914", "title": "", "text": "Government agreed that it would dismiss the drug charge at sentencing. The Presentence Investigation Report (“PSR”), prepared in advance of Defendant’s sentencing hearing, stated that Defendant was “subject to an enhanced sentence” for the firearms charge under ACCA because of his criminal, history. ACCA provides that “a person who violates [§ ] 922(g) ... and has three previous convictions by any court ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another, .., shall be fined under this title and imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1). The PSR did not specify which of Defendant’s prior convictions qualified as “violent felonies’” or “serious drug offenses” for ACCA purposes. There were six convictions listed in the PSR that could conceivably have qualified: (1) a 2001 conviction for assault in the third degree in Alaska, (2) a 1992 conviction for possession of cocaine in Florida, (3) a 1992 conviction for burglary in Florida, (4) a 1981 conviction for armed robbery in Florida, (6) a 1981 conviction for robbery and for using a firearm in the commission of a felony in Florida, and (6) another 1981 conviction for armed robbery in Florida. The sentencing court found that Defendant qualified as an armed career criminal, but it did not specify which of the prior convictions served as the three predicate convictions. It is clear from the record that the court did not rely on the conviction for possession of cocaine, and it appears that the court found that all five of the other convictions qualified as convictions for “violent felonies.” But the court did not say whether it found any or all of those convictions to qualify as a conviction for a violent felony under the residual clause of ACCA. On direct appeal, we affirmed Defendant’s sentence, holding that the three Florida robbery convictions and the Alaska assault conviction qualified as convictions for violent felonies under ACCA and declining to decide whether the Florida burglary conviction qualified. United States v. Geozos, 286 Fed.Appx. 517, 518 n.1 (9th Cir. 2008) (unpublished). In late" }, { "docid": "22337225", "title": "", "text": "Opinion by Judge GRABER; Dissent by Judge BEA. GRABER, Circuit Judge. We took this case en banc primarily to reexamine the validity of United States v. Cunningham, 911 F.2d 361 (9th Cir.1990) (per curiam). In Cunningham, we held that second-degree burglary under Oregon law is a categorical burglary offense under the analysis required by Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), for purposes of applying the Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. § 924(e). Cunningham, 911 F.2d at 363. We now hold that Cunningham was wrongly decided and expressly overrule it. Defendant Darrel Duane Grisel pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Under the ACCA, a district court must sentence a defendant who violates § 922(g) and who has three prior convictions for violent felonies or serious drug offenses to a mandatory minimum of 180 months’ imprisonment. 18 U.S.C. § 924(e)(1). The ACCA identifies “burglary” as a violent felony for purposes of the mandatory minimum enhancement. 18 U.S.C. § 924(e)(2)(B)(ii). At Defendant’s sentencing hearing, the government submitted judgments of conviction and indictments or informations for seven second-degree burglaries under Oregon law, Or.Rev.Stat. § 164.215(1), to which Defendant had pleaded guilty. Pursuant to Cunningham, the district court séntenced Defendant to 180 months’ imprisonment. Defendant timely appealed, and we decided to hear the case en banc initially. See Fed. R.App. P. 35. We review de novo whether a prior conviction is a predicate felony under the ACCA. United States v. Bonat, 106 F.3d 1472, 1474 (9th Cir.1997). Antecedent to examining the substance of his prior convictions, Defendant argues that, procedurally, the government failed to satisfy the ACCA because it did not plead and prove beyond a reasonable doubt the sequence of his prior convictions. Essentially, his argument is twofold. First, Defendant urges that the doctrine of constitutional avoidance requires that we not apply the rule of Almendarez-Torres v. United States, 523 U.S. 224, 243^7, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that prior convictions need not be alleged in an indictment," }, { "docid": "2045168", "title": "", "text": "200.380. The government sought an increased penalty under the ACCA, arguing that Chandler’s Nevada state convictions qualified as violent felonies. See 18 U.S.C. § 924(e)(1). Chandler objected, arguing that neither his conspiracy conviction nor his kidnapping conviction was a violent felony as defined by the ACCA. He did not\" dispute that his conviction for coercion qualified as a violent felony. Over Chandler’s objection, the district court determined that Chandler’s three Nevada state convictions were all violent felonies under the ACCA and sentenced Chandler to 235-months’ imprisonment. Chandler timely appealed. “We review de novo whether a prior conviction is a predicate felony under the ACCA.” United States v. Grisel, 488 F.3d 844, 846 (9th Cir.2007) (en banc). II. DISCUSSION Under 18 U.S.C. § 924(e)(1), any “person who violates section 922(g) of this title and has three previous convictions ... for a violent felony or a serious drug offense, or both, ... shall be imprisoned not less than fifteen years.” For purposes of this subsection of the ACCA, a violent felony is “any crime punishable by imprisonment for a term exceeding one year ... [that] is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Notably, a violent felony as defined in the ACCA is nearly identical to a “crime of violence” as defined in the Sentencing Guidelines’ Career Offender enhancement. Compare 18 U.S.C. § 924(e)(2)(B)(ii) with U.S. Sentencing Guidelines .Manual § 4B1.2(a) (providing that a crime of violence is (1) “any offense ... punishable by imprisonment for a term exceeding one year, that ... is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another”). Because there is no meaningful distinction between the definitions, we have used our analysis of the definition of crime of violence in the Sentencing Guidelines to guide our interpretation of violent felony in the ACCA. See United States v. Spencer, 724 F.3d 1133, 1138 (9th Cir.2013); United States v. Crews, 621 F.3d" }, { "docid": "20948694", "title": "", "text": "in possession of a firearm in violation of § 922(g) is 120 months imprisonment. 18 U.S.C. § 924(a)(2). II. A. On appeal, Alexander maintains that the district court erred in counting his Assault Second Degree conviction as a qualifying violent' felony for ACCA purposes. The government contends that, under the modified categorical approach, Alexander’s Missouri conviction for Assault Second Degree constitutes a violent felony and was properly counted as a predicate offense. “Having jurisdiction pursuant to 28 U.S.C. § 1291, we review de novo the district court’s legal determination that the prior convictions serve as predicate offenses under the ACCA.” United States v. Cole, 778 F.3d 1055, 1055 (8th Cir.2015) (per curiam). Under the ACCA, a defendant is subject to a mandatory fifteen-year minimum sentence on a felon-in-possession conviction if the defendant has three previous convictions “for a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). The ACCA provides two categories of crimes that constitute a “violent felony.” If the crime “has as an element the use, attempted use, or threatened use of physical force against the person of another,” it is a “violent felony.” 18 U.S.C. § 924(e)(2)(B)(i). The statute, secondly, includes certain enumerated felonies and any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). “When a statute of conviction encompasses several different crimes, some of which qualify as crimes of violence and some of which do not, we may use a ‘modified categorical approach’ to determine which part of the statute was the basis for conviction.” United States v. Vinton, 631 F.3d 476, 484 (8th Cir.2011). A court may examine underlying documents in the trial record, including the statement of the factual basis for the charge in pleaded cases. Shepard v. United States, 544 U.S. 13, 20, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Given adequate judicial record evidence, a reviewing court can generally determine whether a plea “necessarily rested” on the subpart of the statute that qualifies as a crime of violence. Vinton, 631 F.3d at 485; see also Shepard," }, { "docid": "11422051", "title": "", "text": "118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Defendant’s argument that we should invoke the doctrine of constitutional doubt to avoid Almendarez-Torres is foreclosed by United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir.2007) (en banc). Defendant also argues that several of his prior convictions do not qualify as predicate felonies under the ACCA. We review that claim de novo, United States v. Marks, 379 F.3d 1114, 1116 (9th Cir.2004), and hold that the prior convictions do qualify as predicate felonies under the ACCA. To qualify for a sentence enhancement under the ACCA, a defendant must have three or more prior convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). The government alleged three prior convictions: a 2002 conviction for delivery of a Schedule II controlled substance under Oregon law, a 1998 conviction for delivery of a Schedule II controlled substance under Oregon law, and a 1977 conviction for Robbery II under Oregon law. Defendant contends that his two prior drug offenses do not qualify as predicate felonies under the ACCA, because the maximum punishment for those offenses under the Oregon Sentencing Guidelines is less than 10 years. The ACCA provides that, in order to count as a “serious drug offense,” the maximum term of imprisonment “prescribed by law” must be ten years or more. 18 U.S.C. § 924(e)(2)(A). Delivery of a Schedule II controlled substance is a Class B felony under Oregon law, Or.Rev.Stat. § 475.840(1)(b), and the maximum sentence allowed by statute is 10 years, Or.Rev.Stat. § 161.605(2). Nonetheless, Defendant argues that the maximum sentence under the Oregon Sentencing Guidelines is the maximum term “prescribed by law.” Defendant’s argument is foreclosed by United States v. Parry, 479 F.3d 722, 724-25 (9th Cir.2007). The district court properly found that Defendant’s drug convictions were predicate felonies under the ACCA. Defendant also contends that his 1977 robbery conviction does not qualify as a violent felony under the ACCA because he was 17 years old at the time of that offense; the ACCA defines the term “violent felony” to include “any act of juvenile delinquency involving the use or" }, { "docid": "1366585", "title": "", "text": "that the prior convictions for reckless endangerment and for cocaine possession were predicate offenses under the ACCA, but challenged the use of the conviction for possession of a sawed-off shotgun as a predicate offense. According to the government, this conviction met the statutory definition of a violent felony because sawed-off shotguns must be registered under federal law, are inherently dangerous and lack a useful purpose, and because their possession presents a serious potential risk of injury to another. Defense counsel argued that mere possession of a firearm cannot amount to a violent felony. The district court rejected the government’s argument, and ruled that under the categorical approach followed by the Sixth Circuit, a violation of the state statute in question could not amount to a violent felony under the ACCA. The district court also noted that a Fifth Circuit case, United States v. Diaz-Diaz, held that “possession of a short-barrel firearm is not a [18 U.S.C.] § 16(b) ‘crime of violence.’ ” 327 F.3d 410, 414 (5th Cir.2003). As a result, the district court sentenced Amos without the ACCA enhancement, which would have required a minimum 15 year (180 month) sentence, and instead imposed a sentence of 120 months, followed by three years of supervised release. The government brought the present appeal from the district court’s sentencing decision. II. We review de novo “a district court’s conclusion that a crime constitutes a violent felony under the ACCA or a crime of violence under the ACCA’s parallel provision in the [Sentencing] Guidelines.” United States v. Hargrove, 416 F.3d 486, 494 (6th Cir.2005). “[I]t is the government’s burden to prove that a defendant qualifies for the mandatory 15-year ACCA enhancement.” Id. The ACCA provides for a mandatory minimum sentence of 15 years for a defendant who is convicted of violating 18 U.S.C. § 922(g), the felon in possession statute, and has three prior convictions for a violent felony or a serious drug offense. 18 U.S.C. § 924(e). The statute defines violent felony as follows: the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, ... that—" }, { "docid": "1366586", "title": "", "text": "Amos without the ACCA enhancement, which would have required a minimum 15 year (180 month) sentence, and instead imposed a sentence of 120 months, followed by three years of supervised release. The government brought the present appeal from the district court’s sentencing decision. II. We review de novo “a district court’s conclusion that a crime constitutes a violent felony under the ACCA or a crime of violence under the ACCA’s parallel provision in the [Sentencing] Guidelines.” United States v. Hargrove, 416 F.3d 486, 494 (6th Cir.2005). “[I]t is the government’s burden to prove that a defendant qualifies for the mandatory 15-year ACCA enhancement.” Id. The ACCA provides for a mandatory minimum sentence of 15 years for a defendant who is convicted of violating 18 U.S.C. § 922(g), the felon in possession statute, and has three prior convictions for a violent felony or a serious drug offense. 18 U.S.C. § 924(e). The statute defines violent felony as follows: the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, ... that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; 18 U.S.C. § 924(e)(2)(B). Because possession of a sawed-off shotgun is not one of the specifically named offenses (burglary, arson, or extortion), and does not involve the use of explosives or the threat of physical force against another person, it would only qualify as a predicate offense if it is deemed to be “conduct that presents a serious potential risk of physical injury to another.” The government relied on no information regarding this offense beyond the Tennessee statute and the 1989 state court indictment as proof of the conduct associated with Amos’s predicate offense. The relevant statute, Tenn.Code. Ann. § 39-6-1713, was apparently repealed in 1989, but included language prohibiting the possession of “any weapon of the kind commonly known as a sawed-off shotgun.” The indictment simply stated that" }, { "docid": "638871", "title": "", "text": "The government bears the burden of establishing that a conviction qualifies for an ACCA sentence enhancement. United States v. Hargrove, 416 F.3d 486, 494 (6th Cir.2005). III. First, Lancaster argues that the district court erred in determining that his prior conviction for second-degree escape is a predicate offense under the ACCA, 18 U.S.C. § 924(e). In determining whether a defendant’s conviction for second-degree escape is a violent felony for purposes of the ACCA, we take a categorical approach, looking “only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions” to determine whether a sentence should be enhanced. Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); Flores, 477 F.3d at 434; United States v. Armstead, 467 F.3d 943, 947 (6th Cir.2006). The ACCA provides that a defendant convicted of violating 18 U.S.C. § 922(g) who has three prior convictions for a “violent felony” or a “serious drug offense,” committed on separate occasions, is subject to a mandatory minimum sentence of 15 years of imprisonment. 18 U.S.C. § 924(e)(1). The statute defines “violent felony” as follows: [T]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.... 18 U.S.C. § 924(e)(2)(B). Lancaster concedes that his two convictions for aggravated assault qualify as predicate offenses under § 924(e), but argues that the district court erroneously considered his second-degree escape conviction to qualify as a violent felony. “A person is guilty of escape in the first degree when he escapes from custody or a detention facility by the use of force or threat of force" }, { "docid": "19195927", "title": "", "text": "observed Rodriquez standing outside an open door to the apartment eating a bowl of cereal; although he denied residing in the apartment, two people independently confirmed that he resided there; he had a key to the apartment; he had access to the entire apartment; he had belongings in the apartment; and officers found mail sent to Rodriquez at the apartment’s address. We conclude that the evidence at trial, viewed in the light most favorable to the prosecution, could lead a rational trier of fact to find beyond a reasonable doubt that Rodriquez possessed the firearm. See United States v. Garcia-Cruz, 978 F.2d 537, 542 (9th Cir.1992) (holding that the defendant’s sole admission that he had “the gun dropped off to [him] to pick up” was sufficient evidence of possession). C. Corona-Sanchez Forecloses Use of Rodriquez’s Prior Drug Convictions as Predicate Offenses Under the ACCA We review de novo whether a pri- or conviction “may be used for purposes of enhancement under the ACCA ...” United States v. Phillips, 149 F.3d 1026, 1031 (9th Cir.1998). Under the ACCA, a person who violates 18 U.S.C. § 922(g) and has three prior convictions for a “violent felony” or a “serious drug offense” is subject to a mandatory minimum sentence of fifteen years. 18 U.S.C. § 924(e)(1). One definition of a serious drug offense is “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ... for which a maximum term of imprisonment of ten years or more is prescribed by law ...” 18 U.S.C. § 924(e)(2)(A)(ii) (emphasis added). Rodriquez was previously convicted of three drug offenses in violation of Washington Revised Code § 69.50.401, the maximum penalty for which is five years’ imprisonment. Wash. Rev.Code § 9A.20.021(l)(e). However, if a person is convicted of “a second or subsequent offense,” the maximum penalty is ten years. Wash. Rev.Code § 69.50.408(1). The question, then, is whether the district court should consider the maximum penalty as provided in the five-year statute of conviction (which would not trigger the ACCA enhancement), or consider the maximum ten-year penalty resulting" } ]

[ { "docid": "4367015", "title": "", "text": "of factor two. “The fact that a work is unpublished is a critical element of its ‘nature.’ ” Harper & Row, 471 U.S. at 564, 105 S.Ct. at 2233. The “ ‘scope of fair use is narrower with respect to unpublished works’ because ‘the author’s right to control the first public appearance of his expression weighs against such use of the work before its release.’ ” New Era I, 873 F.2d at 592 (Oakes, C.J., concurring) (quoting Harper & Row, 471 U.S. at 564, 105 S.Ct. at 2232). In the context of biographers’ use of unpublished letters, we have narrowed the inquiry further. We concluded a one paragraph analysis of the issue in New Era I in this fashion: “Where use is 'made of materials of an ‘unpublished nature,’ the second fair use factor has yet to be applied in favor of an infringer, and we do not do so here. ‘Since the copyrighted letters are unpublished, the second factor weighs heavily in favor of [New Era].’ ” New Era I, 873 F.2d at 583 (quoting Salinger, 811 F.2d at 97). Our precedents, then, leave little room for discussion of this factor once it has been determined that the copyrighted work is unpublished. Against this backdrop, there are three problems with the district court’s analysis. First and foremost, the court gave insufficient weight to the unpublished status of the letters and journal entries. Second, as we indicated earlier, some of the appropriated passages conveyed Wright’s expres sive language. Third, the court’s rationales are not relevant to factor two. To be sure, whether the infringer paraphrased or copied, whether he borrowed fact or expression, or whether his use implicates the author’s privacy interests or not, all may enter into the infringement equation. They just have no bearing on factor two. Factor two focuses solely on the nature of the copyrighted work. The court’s explanations apply to other aspects of the analysis and cannot be used in piggyback fashion to hold together a weak link in the fair use calculation. Thus, while these aforementioned three concerns may, and do in this case," } ]

[ { "docid": "16995462", "title": "", "text": "engineering or any intent on the part of the users to do so. Thus, the absence of evidence that the copying was creative weighs against a finding of fair use. Triad Systems Corp. v. Southeastern Express Co., 64 F.3d 1330, 1336 (9th Cir.1995), cert. denied—U.S.-, 116 S.Ct. 1015, 134 L.Ed.2d 96 (1996). 2. Nature of the copyrighted work This factor provides that the closer the copyrighted work is to the core of intended copyright protection, the more difficult it is to establish the fair use defense. Acuff-Rose, 510 U.S. at 586-87, 114 S.Ct. at 1175. In assessing this factor, one consideration is whether the copyrighted work is informational or creative. Netcom, 907 F.Supp. at 1379. Because the Sega video games are for entertainment, uses and involve fietion and fantasy, which are more creative than informational, consideration of the nature of the copyrighted work weighs against a finding of fair use. See Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 563, 105 S.Ct. 2218, 2232, 85 L.Ed.2d 588 (1985); Stewart v. Abend, 495 U.S. 207, 237-38, 110 S.Ct. 1750, 1768-69, 109 L.Ed.2d 184 (1990); Playboy Enter., Inc. v. Frena, 839 F.Supp. 1552, 1558 (M.D.Fla.1993). 3. Extent of the work copied The third factor concerns both the percentage of the original work that was copied, and whether what was copied constitutes the “heart” of the copyrighted work. Netcom, 907 F.Supp. at 1379 (citing Harper & Row, 471 U.S. at 564-65, 105 S.Ct. at 2232- 33). Although not a per se rule, the copying of an entire work will ordinarily militate against a finding of fair use. Id. (citing Sony, 464 U.S. at 449-450, 104 S.Ct. at 792-93). Here, Sega has shown that the BBS users copied virtually entire copyrighted works by way of their uploads and downloads of Sega games, and that Sherman made these games available through his BBS. While this does not per se preclude a finding of fair use, Sherman has not shown any public benefit nor explanation for the complete copying. Cf. Sega Enter. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1526-27 (9th Cir.1992) (fair" }, { "docid": "23543199", "title": "", "text": "its subsidiary, Sega of America, develop and market video entertainment systems, including the “Genesis” console (distributed in Asia under the name “Mega-Drive”) and video game cartridges. Defendant-appellant Accolade, Inc., is an independent developer, manufacturer, and marketer of computer entertainment software, including game cartridges that are compatible with the Genesis console, as well as game cartridges that are compatible with other computer systems. Sega licenses its copyrighted computer code and its “SEGA” trademark to a number of independent developers of computer game software. Those licensees develop and sell Genesis-compatible video games in competition with Sega. Accolade is not and never has been a licensee of Sega. Prior to rendering its own games compatible with the Genesis console, Accolade explored the possibility of entering into a licensing agreement with Sega, but abandoned the effort because the agreement would have required that Sega be the exclusive manufacturer of all games produced by Accolade. Accolade used a two-step process to render its video games compatible with the Genesis console. First, it “reverse engineered” Sega’s video game programs in order to discover the requirements for compatibility with the Genesis console. As part of the reverse engineering process, Accolade transformed the machine-readable object code contained in commercially available copies of Sega’s game cartridges into human-readable source code using a process called “disassembly” or “decompi-lation”. Accolade purchased a Genesis console and three Sega game cartridges, wired a decompiler into the console circuitry, and generated printouts of the resulting source code. Accolade engineers studied and annotated the printouts in order to identify areas of commonality among the three game programs. They then loaded the disassembled code back into a computer, and experimented to discover the interface specifications for the Genesis console by modifying the programs and studying the results. At the end of the reverse engineering process, Accolade created a development manual that incorporated the information it had discovered about the requirements for a Genesis-compatible game. According to the Accolade employees who created the manual, the manual contained only functional descriptions of the interface requirements and did not include any of Sega’s code. In the second stage, Accolade" }, { "docid": "9855130", "title": "", "text": "is unpersuasive. It is true that Sega referred to “studying or examining the unprotected aspects of a copyrighted computer program.” 977 F.2d at 1520 (emphasis added). But in Sega, Accolade’s copying, observation and disassembly of Sega’s game cartridges was held to be fair use, even though Accolade “loaded the disassembled code back into a computer, and experimented to discover the interface specifications for the Genesis console by modifying the programs and studying the results.” Id. at 1515. Thus, the distinction between “studying” and “use” is unsupported in Sega. Moreover, reverse engineering is a technically complex, frequently iterative process. Johnson-Laird, 19 U. Dayton L.Rev. at 843-44. Within the limited context of a claim of intermediate infringement, we find the semantic distinction between “studying” and “use” to be artificial, and decline to adopt it for purposes of determining fair use. We also reject the argument, urged by Sony, that Connectix infringed the Sony copyright by repeatedly observing the Sony BIOS in an emulated environment, thereby making repeated copies of the Sony BIOS. These intermediate copies could not have been “necessary” under Sega, contends Sony, because Connectix engineers could have disassembled the entire Sony BIOS first, then written their own Connectix BIOS, and used the Con-nectix BIOS to develop the Virtual Game Station hardware emulation software. We accept Sony’s factual predicate for the limited purpose of this appeal. Our doing so, however, does not aid Sony. Sony contends that Connectix’s reverse engineering of the Sony BIOS should be considered unnecessary on the rationale that Connectix’s decision to observe the Sony BIOS in an emulated environment required Conneetix to make more intermediate copies of the Sony BIOS than if Conneetix had performed a complete disas-sembly of the program. Under this logic, at least some of the intermediate copies were not necessary within the meaning of Sega. This construction stretches Sega too far. The “necessity” we addressed in Sega was the necessity of the method, i.e., disas-sembly, not the necessity of the number of times that method was applied. See 977 ”F.2d at 1524-26. In any event, the interpretation advanced by Sony would be a" }, { "docid": "23543228", "title": "", "text": "aspects of Sega’s programs that are not protected by copyright. 17 U.S.C. § 102(b). With respect to the video game programs contained in Accolade’s game cartridges, there is no evidence in the record that Accolade sought to avoid performing its own creative work. Indeed, most of the games that Accolade released for use with the Genesis console were originally developed for other hardware systems. Moreover, with respect to the interface procedures for the Genesis console, Accolade did not seek to avoid paying a customarily charged fee for use of those procedures, nor did it simply copy Sega’s code; rather, it wrote its own procedures based on what it had learned through disassembly. Taken together, these facts indicate that although Accolade’s ultimate purpose was the release of Genesis-compatible games for sale, its direct purpose in copying Sega’s code, and thus its direct use of the copyrighted material, was simply to study the functional requirements for Genesis compatibility so that it could modify existing games and make them usable with the Genesis console. Moreover, as we discuss below, no other method of studying those requirements was available to Accolade. On these facts, we conclude that Accolade copied Sega’s code for a legitimate, essentially non-exploitative purpose, and that the commercial aspect of its use can best be described as of minimal significance. We further note that we are free to consider the public benefit resulting from a particular use notwithstanding the fact that the alleged infringer may gain commercially. See Hustler, 796 F.2d at 1153 (quoting MCA, Inc. v. Wilson, 677 F.2d 180, 182 (2d Cir.1981)). Public benefit need not be direct or tangible, but may arise because the challenged use serves a public interest. Id. In the case before us, Accolade’s identification of the functional requirements for Genesis compatibility has led to an increase in the number of independently designed video game programs offered for use with the Genesis console. It is precisely this growth in creative expression, based on the dissemination of other creative works and the unprotected ideas contained in those works, that the Copyright Act was intended to promote." }, { "docid": "23543225", "title": "", "text": "be considered in determining whether a particular use is a fair one. Those factors include: (1) the purpose and character of the use, including whether such use is of a com mercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. The statutory factors are not exclusive. Rather, the doctrine of fair use is in essence “an equitable rule of reason.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560, 105 S.Ct. 2218, 2230, 85 L.Ed.2d 588 (1985) (quoting H.R.Rep. No. 1476, 94th Cong., 2d Sess. 65, reprinted in 1976 U.S.C.C.A.N. 5659, 5679). Fair use is a mixed question of law and fact. Id. “Where the district court has found facts sufficient to evaluate each of the statutory factors,” an appellate court may resolve the fair use question as a matter of law. Id. In determining that Accolade’s disassem-bly of Sega’s object code did not constitute a fair use, the district court treated the first and fourth statutory factors as dispos-itive, and ignored the second factor entirely. Given the nature and characteristics of Accolade’s direct use of the copied works, the ultimate use to which Accolade put the functional information it obtained, and the nature of the market for home video entertainment systems, we conclude that neither the first nor the fourth factor weighs in Sega’s favor. In fact, we conclude that both factors support Accolade’s fair use defense, as does the second factor, a factor which is important to the resolution of cases such as the one before us. (a) With respect to the first statutory factor, we observe initially that the fact that copying is for a commercial purpose weighs against a finding of fair use. Harper & Row, 471 U.S. at 562, 105 S.Ct. at 2231. However, the presumption of unfairness that arises in such cases can be rebutted" }, { "docid": "23543242", "title": "", "text": "more stringent standards imposed by the patent laws. Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 159-64, 109 S.Ct. 971, 982-84, 103 L.Ed.2d 118 (1989). Sega does not hold a patent on the Genesis console. Because Sega’s video game programs contain unprotected aspects that cannot be examined without copying, we afford them a lower degree of protection than more traditional literary works. See CAI, 23 U.S.P.Q.2d at 1257. In light of all the considerations discussed above, we conclude that the second statutory factor also weighs in favor of Accolade. (d) As to the third statutory factor, Accolade disassembled entire programs written by Sega. Accordingly, the third factor weighs against Accolade. The fact that an entire work was copied does not, however, preclude a finding a fair use. Sony Corp., 464 U.S. at 449-50, 104 S.Ct. at 792; Hustler, 796 F.2d at 1155 (“Sony Corp. teaches us that the copying of an entire work does not preclude fair use per se.”). In fact, where the ultimate (as opposed to direct) use is as limited as it was here, the factor is of very little weight. Cf. Wright v. Warner Books, Inc., 953 F.2d 731, 738 (2d Cir.1991). (e) In summary, careful analysis of the purpose and characteristics of Accolade’s use of Sega’s video game programs, the nature of the computer programs involved, and the nature of the market for video game cartridges yields the conclusion that the first, second, and fourth statutory fair use factors weigh in favor of Accolade, while only the third weighs in’ favor of Sega, and even then only slightly. Accordingly, Accolade clearly has by far the better case on the fair'use issue. We are not unaware of the fact that to those used to considering copyright issues in more traditional contexts, our result may seem incongruous at first blush. To oversimplify, the record establishes that Accolade, a commercial competitor of Sega, engaged in wholesale copying of Sega’s copyrighted code as a preliminary step in the development of a competing product. However, the key to this case is that we are dealing with computer" }, { "docid": "23543241", "title": "", "text": "in order to discover the functional specifications for a Genesis-compatible game. In summary, the record clearly establishes that disassembly of the object code in Sega’s video game cartridges was necessary in order to understand the functional requirements for Genesis compatibility. The interface procedures for the Genesis console are distributed for public use only in object code form, and are not visible to the user during operation of the video game program. Because object code cannot be read by humans, it must be disassembled, either by hand or by machine. Disassembly of object code necessarily entails copying. Those facts dictate our analysis of the second statutory fair use factor. If disassembly of copyrighted object code is per se an unfair use, the owner of the copyright gains a de facto monopoly over the functional aspects of his work — aspects that were expressly denied copyright protection by Congress. 17 U.S.C. § 102(b). In order to enjoy a lawful monopoly over the idea or functional principle underlying a work, the creator of the work must satisfy the more stringent standards imposed by the patent laws. Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 159-64, 109 S.Ct. 971, 982-84, 103 L.Ed.2d 118 (1989). Sega does not hold a patent on the Genesis console. Because Sega’s video game programs contain unprotected aspects that cannot be examined without copying, we afford them a lower degree of protection than more traditional literary works. See CAI, 23 U.S.P.Q.2d at 1257. In light of all the considerations discussed above, we conclude that the second statutory factor also weighs in favor of Accolade. (d) As to the third statutory factor, Accolade disassembled entire programs written by Sega. Accordingly, the third factor weighs against Accolade. The fact that an entire work was copied does not, however, preclude a finding a fair use. Sony Corp., 464 U.S. at 449-50, 104 S.Ct. at 792; Hustler, 796 F.2d at 1155 (“Sony Corp. teaches us that the copying of an entire work does not preclude fair use per se.”). In fact, where the ultimate (as opposed to direct) use is as" }, { "docid": "23543240", "title": "", "text": "by “peeling” the chips contained in Sega’s games or in the Genesis console, as authorized by section 906 of the SCPA, 17 U.S.C. § 906. Even Sega’s amici agree that this finding was clear error. The declaration of Dr. Harry Tredennick, an expert witness for Accolade, establishes that chip peeling yields only a physical diagram of the object code embedded in a ROM chip. It does not obviate the need to translate object code into source code. Atari Games Corp., 975 F.2d at 843-44. The district court also suggested that Accolade could have avoided a copyright infringement suit by programming in a “clean room”. That finding too is clearly erroneous. A “clean room” is a procedure used in the computer industry in order to prevent direct copying of a competitor’s code during the development of a competing product. Programmers in clean rooms are provided only with the functional specifications for the desired program. As Dr. Tredennick explained, the use of a clean room would not have avoided the need for disassembly because disassembly was necessary in order to discover the functional specifications for a Genesis-compatible game. In summary, the record clearly establishes that disassembly of the object code in Sega’s video game cartridges was necessary in order to understand the functional requirements for Genesis compatibility. The interface procedures for the Genesis console are distributed for public use only in object code form, and are not visible to the user during operation of the video game program. Because object code cannot be read by humans, it must be disassembled, either by hand or by machine. Disassembly of object code necessarily entails copying. Those facts dictate our analysis of the second statutory fair use factor. If disassembly of copyrighted object code is per se an unfair use, the owner of the copyright gains a de facto monopoly over the functional aspects of his work — aspects that were expressly denied copyright protection by Congress. 17 U.S.C. § 102(b). In order to enjoy a lawful monopoly over the idea or functional principle underlying a work, the creator of the work must satisfy the" }, { "docid": "16995463", "title": "", "text": "U.S. 207, 237-38, 110 S.Ct. 1750, 1768-69, 109 L.Ed.2d 184 (1990); Playboy Enter., Inc. v. Frena, 839 F.Supp. 1552, 1558 (M.D.Fla.1993). 3. Extent of the work copied The third factor concerns both the percentage of the original work that was copied, and whether what was copied constitutes the “heart” of the copyrighted work. Netcom, 907 F.Supp. at 1379 (citing Harper & Row, 471 U.S. at 564-65, 105 S.Ct. at 2232- 33). Although not a per se rule, the copying of an entire work will ordinarily militate against a finding of fair use. Id. (citing Sony, 464 U.S. at 449-450, 104 S.Ct. at 792-93). Here, Sega has shown that the BBS users copied virtually entire copyrighted works by way of their uploads and downloads of Sega games, and that Sherman made these games available through his BBS. While this does not per se preclude a finding of fair use, Sherman has not shown any public benefit nor explanation for the complete copying. Cf. Sega Enter. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1526-27 (9th Cir.1992) (fair use found despite total copying where total copying was necessary to carry out the defendants’ beneficial purpose of reverse engineering software to get at the ideas found in the source code). Therefore, this factor weighs against a finding of fair use. lh Effect of the use upon the market The fourth and final statutory factor concerns whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market for the copyrighted work. Campbell, 510 U.S. at 589-91, 114 S.Ct. at 1177. While all factors must be weighed together, id. at 578-80, 114 S.Ct. at 1171, the fourth factor is the most important consideration. Los Angeles News Service v. Tullo, 973 F.2d 791, 798 (9th Cir.1992) (citing Harper & Row, 471 U.S. at 566, 105 S.Ct. at 2233-34). By utilizing the MAPHIA BBS, users are able to download and distribute one or more copies of Sega video game programs from a single copy of a Sega video game program on the MAPHIA BBS, and" }, { "docid": "23543229", "title": "", "text": "below, no other method of studying those requirements was available to Accolade. On these facts, we conclude that Accolade copied Sega’s code for a legitimate, essentially non-exploitative purpose, and that the commercial aspect of its use can best be described as of minimal significance. We further note that we are free to consider the public benefit resulting from a particular use notwithstanding the fact that the alleged infringer may gain commercially. See Hustler, 796 F.2d at 1153 (quoting MCA, Inc. v. Wilson, 677 F.2d 180, 182 (2d Cir.1981)). Public benefit need not be direct or tangible, but may arise because the challenged use serves a public interest. Id. In the case before us, Accolade’s identification of the functional requirements for Genesis compatibility has led to an increase in the number of independently designed video game programs offered for use with the Genesis console. It is precisely this growth in creative expression, based on the dissemination of other creative works and the unprotected ideas contained in those works, that the Copyright Act was intended to promote. See Feist Publications, Inc. v. Rural Tel. Serv. Co., - U.S. -, -, 111 S.Ct. 1282, 1290, 113 L.Ed.2d 358 (1991) (citing Harper & Row, 471 U.S. at 556-57, 105 S.Ct. at 2228-29). The fact that Genesis-compatible video games are not scholarly works, but works offered for sale on the market, does not alter our judgment in this regard. We conclude that given the purpose and character of Accolade’s use of Sega’s video game programs, the presumption of unfairness has been overcome and the first statutory factor weighs in favor of Accolade. (b) As applied, the fourth statutory factor, effect on the potential market for the copyrighted work, bears a close relationship to the “purpose and character” inquiry in that it, too, accommodates the distinction between the copying of works in order to make independent creative expression possible and the simple exploitation of another’s creative efforts. We must, of course, inquire whether, “if [the challenged use] should become widespread, it would adversely affect the potential market for the copyrighted work,” Sony Corp. v. Universal City" }, { "docid": "10951141", "title": "", "text": "fair use defense, to advert to the defendant’s usage simultaneously with the nature of the plaintiffs work.”). c. Third Factor: Amount and Substantiality of the Portion Used The third factor concerns both the percentage of the original work that was copied and whether that portion constitutes the “heart” of the copyrighted work. Harper & Row, 471 U.S. at 564-65, 105 S.Ct. at 2232-33. Generally, no more of a work may be copied than is necessary for the particular use. See Supermarket of Homes v. San Fernando Valley Board of Realtors, 786 F.2d 1400, 1409 (9th Cir.1986). The copying of an entire work will ordinarily militate against a finding of fair use, although this is not a per se rule. Sony, 464 U.S. at 449-450, 104 S.Ct. at 792-793. Plaintiffs have shown that Erlich’s postings copied substantial amounts of the originals or, in some cases, the entire works. Netcom, of course, made available to the Usenet exactly what was posted by Erlich. As the court found in Sony, the mere fact that all of a work is copied is not determinative of the fair use question, where such total copying is essential given the purpose of the copying. Id. (allowing total copying in context of time-shifting copyrighted television shows by home viewers). For example, where total copying was necessary to carry out the defendants’ beneficial purpose of reverse engineering software to get at the ideas found in the source code, the court found fair use. Sega v. Accolade, 977 F.2d at 1526-27. Here, Netcom copied no more of plaintiffs’ works than necessary to function as a Usenet server. Like the defendant in Sega v. Accolade, Netcom had no practical alternative way to carry out its socially useful purpose; a Usenet server must copy all files, since the prescreening of postings for potential copyright infringement is not feasible. 977 F.2d at 1526. Accordingly, this factor should not defeat an otherwise valid defense. d. Fourth Factor: Effect of the Use upon the Potential Market for the Work The fourth and final statutory factor concerns “the extent of market harm caused by the particular" }, { "docid": "23543226", "title": "", "text": "question as a matter of law. Id. In determining that Accolade’s disassem-bly of Sega’s object code did not constitute a fair use, the district court treated the first and fourth statutory factors as dispos-itive, and ignored the second factor entirely. Given the nature and characteristics of Accolade’s direct use of the copied works, the ultimate use to which Accolade put the functional information it obtained, and the nature of the market for home video entertainment systems, we conclude that neither the first nor the fourth factor weighs in Sega’s favor. In fact, we conclude that both factors support Accolade’s fair use defense, as does the second factor, a factor which is important to the resolution of cases such as the one before us. (a) With respect to the first statutory factor, we observe initially that the fact that copying is for a commercial purpose weighs against a finding of fair use. Harper & Row, 471 U.S. at 562, 105 S.Ct. at 2231. However, the presumption of unfairness that arises in such cases can be rebutted by the characteristics of a particular commercial use. Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1152 (9th Cir.1986); see also Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1262 (2d Cir.1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2201, 95 L.Ed.2d 856 (1987). Further “[t]he commercial nature of a use is a matter of degree, not an absolute.... ” Maxtone-Graham, 803 F.2d at 1262. Sega argues that because Accolade copied its object code in order to produce a competing product, the Harper & Row presumption applies and precludes a finding of fair use. That analysis is far too simple and ignores a number of important considerations. We must consider other aspects of “the purpose and character of the use” as well. As we have noted,. the use at issue was an intermediate one only and thus any commercial “exploitation” was indirect or derivative. The declarations of Accolade’s employees indicate, and the district court found, that Accolade copied Sega’s software solely in order to discover the functional requirements for compatibility with the Genesis console —" }, { "docid": "23543227", "title": "", "text": "by the characteristics of a particular commercial use. Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1152 (9th Cir.1986); see also Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1262 (2d Cir.1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2201, 95 L.Ed.2d 856 (1987). Further “[t]he commercial nature of a use is a matter of degree, not an absolute.... ” Maxtone-Graham, 803 F.2d at 1262. Sega argues that because Accolade copied its object code in order to produce a competing product, the Harper & Row presumption applies and precludes a finding of fair use. That analysis is far too simple and ignores a number of important considerations. We must consider other aspects of “the purpose and character of the use” as well. As we have noted,. the use at issue was an intermediate one only and thus any commercial “exploitation” was indirect or derivative. The declarations of Accolade’s employees indicate, and the district court found, that Accolade copied Sega’s software solely in order to discover the functional requirements for compatibility with the Genesis console — aspects of Sega’s programs that are not protected by copyright. 17 U.S.C. § 102(b). With respect to the video game programs contained in Accolade’s game cartridges, there is no evidence in the record that Accolade sought to avoid performing its own creative work. Indeed, most of the games that Accolade released for use with the Genesis console were originally developed for other hardware systems. Moreover, with respect to the interface procedures for the Genesis console, Accolade did not seek to avoid paying a customarily charged fee for use of those procedures, nor did it simply copy Sega’s code; rather, it wrote its own procedures based on what it had learned through disassembly. Taken together, these facts indicate that although Accolade’s ultimate purpose was the release of Genesis-compatible games for sale, its direct purpose in copying Sega’s code, and thus its direct use of the copyrighted material, was simply to study the functional requirements for Genesis compatibility so that it could modify existing games and make them usable with the Genesis console. Moreover, as we discuss" }, { "docid": "23543231", "title": "", "text": "Studios, 464 U.S. 417, 451, 104 S.Ct. 774, 793, 78 L.Ed.2d 574 (1984), by diminishing potential sales, interfering with marketability, or usurping the market, Hustler, 796 F.2d at 1155-56. If the copying resulted in the latter effect, all other considerations might be irrelevant. The Harper & Row Court found a use that effectively usurped the market for the copyrighted work by supplanting that work to be dispositive. 471 U.S. at 567-69, 105 S.Ct. at 2234-35. However, the same consequences do not and could not attach to a use which simply enables the copier to enter the market for works of the same type as the copied work. Unlike the defendant in Harper & Row, which printed excerpts from President Ford’s memoirs verbatim with the stated purpose of “scooping” a Time magazine review of the book, 471 U.S. at 562, 105 S.Ct. at 2231, Accolade did not attempt to “scoop” Sega’s release of any particular game or games, but sought only to become a legitimate competitor in the field of Genesis-compatible video games. Within that market, it is the characteristics of the game program as experienced by the user that determine the program’s commercial success. As we have noted, there is nothing in the record that suggests that Accolade copied any of those elements. By facilitating the entry of a new competitor, the first lawful one that is not a Sega licensee, Accolade’s disassembly of Sega’s software undoubtedly “affected” the market for Genesis-compatible games in an indirect fashion. We note, however, that while no consumer except the most avid devotee of President Ford’s regime might be expected to buy more than one version of the President’s memoirs, video game users typically purchase more than one game. There is no basis for assuming that Accolade’s “Ishido” has significantly affected the market for Sega’s “Altered Beast”, since a consumer might easily purchase both; nor does it seem unlikely that a consumer particularly interested in sports might purchase both Accolade’s “Mike Dit-ka Power Football” and Sega’s “Joe Montana Football”, particularly if the games are, as Accolade contends, not substantially similar. In any event, an" }, { "docid": "23543232", "title": "", "text": "it is the characteristics of the game program as experienced by the user that determine the program’s commercial success. As we have noted, there is nothing in the record that suggests that Accolade copied any of those elements. By facilitating the entry of a new competitor, the first lawful one that is not a Sega licensee, Accolade’s disassembly of Sega’s software undoubtedly “affected” the market for Genesis-compatible games in an indirect fashion. We note, however, that while no consumer except the most avid devotee of President Ford’s regime might be expected to buy more than one version of the President’s memoirs, video game users typically purchase more than one game. There is no basis for assuming that Accolade’s “Ishido” has significantly affected the market for Sega’s “Altered Beast”, since a consumer might easily purchase both; nor does it seem unlikely that a consumer particularly interested in sports might purchase both Accolade’s “Mike Dit-ka Power Football” and Sega’s “Joe Montana Football”, particularly if the games are, as Accolade contends, not substantially similar. In any event, an attempt to mo nopolize the market by making it impossible for others to compete runs counter to the statutory purpose of promoting creative expression and cannot constitute a strong equitable basis for resisting the invocation of the fair use doctrine. Thus, we conclude that the fourth statutory factor weighs in Accolade’s, not Sega’s, favor, notwithstanding the minor economic loss Sega may suffer. (c) The second statutory factor, the nature of the copyrighted work, reflects the fact that not all copyrighted works are entitled to the same level of protection. The protection established by the Copyright Act for original works of authorship does not extend to the ideas underlying a work or to the functional or factual aspects of the work. 17 U.S.C. § 102(b). To the extent that a work is functional or factual, it may be copied, Baker v. Selden, 101 U.S. (11 Otto) 99, 102-04, 25 L.Ed. 841 (1879), as may those expressive elements of the work that “must necessarily be used as incident to” expression of the underlying ideas, functional concepts, or" }, { "docid": "23543230", "title": "", "text": "See Feist Publications, Inc. v. Rural Tel. Serv. Co., - U.S. -, -, 111 S.Ct. 1282, 1290, 113 L.Ed.2d 358 (1991) (citing Harper & Row, 471 U.S. at 556-57, 105 S.Ct. at 2228-29). The fact that Genesis-compatible video games are not scholarly works, but works offered for sale on the market, does not alter our judgment in this regard. We conclude that given the purpose and character of Accolade’s use of Sega’s video game programs, the presumption of unfairness has been overcome and the first statutory factor weighs in favor of Accolade. (b) As applied, the fourth statutory factor, effect on the potential market for the copyrighted work, bears a close relationship to the “purpose and character” inquiry in that it, too, accommodates the distinction between the copying of works in order to make independent creative expression possible and the simple exploitation of another’s creative efforts. We must, of course, inquire whether, “if [the challenged use] should become widespread, it would adversely affect the potential market for the copyrighted work,” Sony Corp. v. Universal City Studios, 464 U.S. 417, 451, 104 S.Ct. 774, 793, 78 L.Ed.2d 574 (1984), by diminishing potential sales, interfering with marketability, or usurping the market, Hustler, 796 F.2d at 1155-56. If the copying resulted in the latter effect, all other considerations might be irrelevant. The Harper & Row Court found a use that effectively usurped the market for the copyrighted work by supplanting that work to be dispositive. 471 U.S. at 567-69, 105 S.Ct. at 2234-35. However, the same consequences do not and could not attach to a use which simply enables the copier to enter the market for works of the same type as the copied work. Unlike the defendant in Harper & Row, which printed excerpts from President Ford’s memoirs verbatim with the stated purpose of “scooping” a Time magazine review of the book, 471 U.S. at 562, 105 S.Ct. at 2231, Accolade did not attempt to “scoop” Sega’s release of any particular game or games, but sought only to become a legitimate competitor in the field of Genesis-compatible video games. Within that market," }, { "docid": "8163627", "title": "", "text": "at 1000 (emphasis omitted). And, the court concluded that “Google replicated what was necessary to achieve a degree of interoperability — but no more, taking care, as said before, to provide its own implementations.” Id. In reaching this conclusion, the court relied primarily on two Ninth Circuit decisions: Sega Enterprises v. Accolade, Inc., 977 F.2d 1510 (9th Cir.1992), and Sony Computer Entertainment, Inc. v. Connectix, Corp., 203 F.3d 596 (9th Cir.2000). Both Sega and Sony are fair use cases in which copyrightability was addressed only tangentially. In Sega, for example, Sega manufactured a video game console and game cartridges that contained hidden functional program elements necessary to achieve compatibility with the console. Defendant Accolade: (1) reverse-engineered Sega’s video game programs to discover the requirements for compatibility; and (2) created its own games for the Sega console. Sega, 977 F.2d at 1514-15. As part of the reverse-engineering process, Accolade made intermediate copies of object code from Sega’s console. Id. Although the court recognized that the intermediate copying of computer code may infringe Sega’s copyright, it concluded that “disassembly of copyrighted object code is, as a matter of law, a fair use of the copyrighted work if such disassembly provides the only means of access to those elements of the code that are not protected by copyright and the copier has a legitimate reason for seeking such access.” Id. at 1518. The court agreed with Accolade that its copying was necessary to examine the unprotected functional aspects of the program. Id. at 1520. And, because Accolade had a legitimate interest in making its cartridges compatible with Sega’s console, the court found that Accolade’s intermediate copying was fair use. Likewise, in Sony, the Ninth Circuit found that the defendant’s reverse engineering and intermediate copying of Sony’s copyrighted software program “was a fair use for the purpose of gaining access to the unprotected elements of Sony’s software.” Sony, 203 F.3d at 602. The court explained that Sony’s software program contained unprotected functional elements and that the defendant could only access those elements through reverse engineering. Id. at 603. The defendant used that information to" }, { "docid": "23543243", "title": "", "text": "limited as it was here, the factor is of very little weight. Cf. Wright v. Warner Books, Inc., 953 F.2d 731, 738 (2d Cir.1991). (e) In summary, careful analysis of the purpose and characteristics of Accolade’s use of Sega’s video game programs, the nature of the computer programs involved, and the nature of the market for video game cartridges yields the conclusion that the first, second, and fourth statutory fair use factors weigh in favor of Accolade, while only the third weighs in’ favor of Sega, and even then only slightly. Accordingly, Accolade clearly has by far the better case on the fair'use issue. We are not unaware of the fact that to those used to considering copyright issues in more traditional contexts, our result may seem incongruous at first blush. To oversimplify, the record establishes that Accolade, a commercial competitor of Sega, engaged in wholesale copying of Sega’s copyrighted code as a preliminary step in the development of a competing product. However, the key to this case is that we are dealing with computer software, a relatively unexplored area in the world of copyright law. We must avoid the temptation of trying to force “the proverbial square peg in[to] a round hole.” CAI, 23 U.S.P.Q.2d at 1257. In determining whether a challenged use of copyrighted material is fair, a court must keep in mind the public policy underlying the Copyright Act. “ ‘The immediate effect of our copyright law is to secure a fair return for an “author’s” creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.’ ” Sony Corp., 464 U.S. at 432, 104 S.Ct. at 783 (quoting Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975)). When technological change has rendered an aspect or application of the Copyright Act ambiguous, “ ‘the Copyright Act must be construed in light of this basic purpose.’ ” Id. As discussed above, the fact that computer programs are distributed for public use in object code form often precludes public access to the" }, { "docid": "8163626", "title": "", "text": "and creative, and that the declaring code could have been written and organized in any number of ways and still have achieved the same functions, we conclude that Section 102(b) does not bar the packages from copyright protection just because they also perform functions. 3. Google’s Interoperability Arguments are Irrelevant to Copyrightability Oracle also argues that the district court erred in invoking interoperability in its copyrightability analysis. Specifically, Oracle argues that Google’s interoperability arguments are only relevant, if at all, to fair use — not to the question of whether the API packages are copyrightable. We agree. In characterizing the SSO of the Java API packages as a “method of operation,” the district court explained that “[d]uplication of the command structure is necessary for interoperability.” Copyrightability Decision, 872 F.Supp.2d at 977. The court found that, “[i]n order for at least some of [the pre-Android Java] code to run on Android, Google was required to provide the same java.paekage.Class.method() command system using the same names with the same ‘taxonomy’ and with the same functional specifications.” Id. at 1000 (emphasis omitted). And, the court concluded that “Google replicated what was necessary to achieve a degree of interoperability — but no more, taking care, as said before, to provide its own implementations.” Id. In reaching this conclusion, the court relied primarily on two Ninth Circuit decisions: Sega Enterprises v. Accolade, Inc., 977 F.2d 1510 (9th Cir.1992), and Sony Computer Entertainment, Inc. v. Connectix, Corp., 203 F.3d 596 (9th Cir.2000). Both Sega and Sony are fair use cases in which copyrightability was addressed only tangentially. In Sega, for example, Sega manufactured a video game console and game cartridges that contained hidden functional program elements necessary to achieve compatibility with the console. Defendant Accolade: (1) reverse-engineered Sega’s video game programs to discover the requirements for compatibility; and (2) created its own games for the Sega console. Sega, 977 F.2d at 1514-15. As part of the reverse-engineering process, Accolade made intermediate copies of object code from Sega’s console. Id. Although the court recognized that the intermediate copying of computer code may infringe Sega’s copyright, it concluded" }, { "docid": "8163628", "title": "", "text": "that “disassembly of copyrighted object code is, as a matter of law, a fair use of the copyrighted work if such disassembly provides the only means of access to those elements of the code that are not protected by copyright and the copier has a legitimate reason for seeking such access.” Id. at 1518. The court agreed with Accolade that its copying was necessary to examine the unprotected functional aspects of the program. Id. at 1520. And, because Accolade had a legitimate interest in making its cartridges compatible with Sega’s console, the court found that Accolade’s intermediate copying was fair use. Likewise, in Sony, the Ninth Circuit found that the defendant’s reverse engineering and intermediate copying of Sony’s copyrighted software program “was a fair use for the purpose of gaining access to the unprotected elements of Sony’s software.” Sony, 203 F.3d at 602. The court explained that Sony’s software program contained unprotected functional elements and that the defendant could only access those elements through reverse engineering. Id. at 603. The defendant used that information to create a software program that let consumers play games designed for Sony’s PlayStation console on their computers. Notably, the defendant’s software program did not contain any of Sony’s copyrighted material. Id. at 598. The district court characterized Sony and Sega as “close analogies” to this case. Copyrightability Decision, 872 F.Supp.2d at 1000. According to the court, both decisions “held that interface procedures that were necessary to duplicate in order to achieve interoperability were functional aspects not copyrightable under Section 102(b).” Id. The district court’s reliance on Sega and Sony in the copyrightability context is misplaced, however. As noted, both cases were focused on fair use, not copyrightability. In Sega, for example, the only question was whether Accolade’s intermediate copying was fair use. The court never addressed the question of whether Sega’s software code, which had functional elements, also contained separable creative expression entitled to protection. Likewise, although the court in Sony determined that Sony’s computer program had functional elements, it never addressed whether it also had expressive elements. Sega and Sony are also factually distinguishable" } ]

[ { "docid": "3368171", "title": "", "text": "in the original proceeding or not. And it specifies the style of inquiry that the district court will engage in. If we hold that the government’s intended use of Avoca Island may be brought into the proceedings, the court will have to answer whether the island is subject to a navigation servitude. If we hold that the use of the island may not be considered, the proceeding will be confined to the value of the land condemned. In sum, we can hear the appeal on the motion without prejudging the merits, we can determine an important interest of Avoca, and our ruling is fundamental to the further conduct of the case. Accordingly, we take jurisdiction. II. We turn to the question whether Avoca may in this proceeding seek damages for the government’s intended use of the adjacent land. When the government exercises its power of eminent domain through formal condemnation, the nature and extent of the interests to be acquired are in the government’s discretion. Once the government specifies those interests unambiguously in a complaint in condemnation, a court has no power to increase or decrease them. A court may then inquire only “whether the use for which private property is authorized by the legislature to be taken, is in fact a public use”. Shoemaker v. United States, 1893, 147 U.S. 282, 298,13 S.Ct. 361, 390, 37 L.Ed. 170. The court may ask in this inquiry whether the authorized officials were acting in bad faith or arbitrarily or capriciously by condemning given land. There is no question in the present case whether the levee remnants were condemned for a public use. Nor is there any allegation that the government acted in bad faith or arbitrarily or capriciously by condemning them. The landowner is entitled to compensation, however, that will put him “in as good position pecuniarily as he would have occupied if his property had not been taken”. United States v. Miller, 1943, 317 U.S. 369, 373, 63 S.Ct. 276, 280, 87 L.Ed. 336. The district court will award damages that may reasonably “be anticipated from use of the property" } ]

[ { "docid": "10838627", "title": "", "text": "noted in prior memoranda submitted to the Court that while this specific Donation of Servitude and Easement pertains only to a small portion of the Pipeline, there are several hundred other'landowners who made similar donations, as well as other types of conveyances to the government. . The Court once again rejects this argument and notes that the cases relied on by the Government for this assertion involve condemnation proceedings in which the government acquired the disputed property under its power of eminent domain. It is true that in those circumstances— i.e., condemnation proceedings — the Attorney General is authorized to agree, on behalf of the United States, to return the property to the original land owners. See 40 U.S.C. § 258f. The cases cited by the Government, e.g., United States v. 434.00 Acres of Land, 792 F.2d 1006, 1010 (11th Cir.1986); United States v. Three Parcels of Land, 224 F.Supp. 873, 876 (D.Alaska 1963), state that the court is without authority to order the revesting of title in the original owners because § 25 8f entrusts such matters to the Attorney General. This case is a quiet title action in which the plaintiffs donated easements to the government. This is not a condemnation proceeding, and the Government did not acquire the disputed property under its powers of eminent domain. Statutes governing condemnation proceedings are wholly inapplicable to this lawsuit, and cases involving such proceedings are therefore distinguishable. . Therefore, any theory of termination premised on the existence of a dominant estate is necessarily incompatible with a personal servitude of right of use because there is no dominant estate. However, other grounds for termination — e.g., the happening of a ' resolutory condition — -may govern personal servitudes of right of use. . A description of the public purpose is routinely included by the United States in its property agreements when it acquires land through a condemnation action. Under the Declaration of Taking Act, the government is required to state the public use for which the land is taken. See 40 U.S.C. § 258a. . The Court notes that plaintiffs fail" }, { "docid": "8650843", "title": "", "text": "wells on the leases in considering just compensation. The effect was to cast the burden of any plugging costs on the United States. International Equipment Leasing Corp., (International), became the reluctant operating owner of several tracts of land which included the Wilburn Water Flood project, a part of the Talala Project in Rogers County. The properties were acquired from Midland Oil and Gas Company as a result of foreclosure pro ceedings. International took operating possession of the properties on June 3, 1966. International first learned of the proposed taking in October of 1967 when government surveyors commenced work on the properties. The Wilburn Water Flood project consists of seven leases which total about 350 acres. The unit is in secondary recovery under a water flood program initiated in 1953. There are 100 producing oil wells and 97 water injection wells on the properties. The Government condemned 179.60 acres of International’s interest in the unit which included 61 producing oil wells and 44 injection wells. Fair Market Value The Commission found that the fair market value of the International oil reserves taken was $464.00 and that the lease equipment was of the fair market value of $13,875.00. International was awarded $14,339.00 for its combined interest. The court below entered judgment for International in accordance with the Commission’s award. International alleges error in exclusion of the testimony of H. B. Gutelius, Jr., President of International, relating to acquisition costs of the properties. The general rule is that evidence of the purchase price may be admitted in a condemnation suit if the sale is not too remote. 29A C.J.S. Eminent Domain § 273(5). However, a foreclosure sale is not an arms length transaction involving a willing buyer and a willing seller. The amount of money one has “invested”, i. e., paid, in the acquisition of property by foreclosure is not relevant in a condemnation suit. It is not evidence of fair market value. United States v. 5,139.5 Acres of Land, In Aiken and Barnwell Counties, S. C., 200 F. 2d 659 (4th Cir. 1952). International complains that the testimony of its expert, G." }, { "docid": "5694908", "title": "", "text": "Court found that “[t]he property taken here for which compensation is payable is not just the land to which access is cut off but the private property right of the condemnee in the public road since the only access to his land is over this route.” While we agree with the District Court that the taking of such an interest may perhaps be compensable, we hold that “the award may not be made in a condemnation suit under the theory of damages to the remainder.” United States v. 3,317.39 Acres of Land, More or Less, in Jefferson County, Arkansas, 443 F.2d 104, 106 (8th Cir. 1971), cert. denied, 404 U.S. 1025, 92 S.Ct. 674, 30 L.Ed.2d 675 (1972). Any action the Wood-wards may have for the potential future flooding of the access road will have to be filed in a separate proceeding under the Tucker Act in the Court of Claims. Id.; see 28 U.S.C. § 1491 (Supp. II 1978); United States v. Welch, 217 U.S. 333, 339, 30 S.Ct. 527, 54 L.Ed. 787 (1910); United States v. Winnebago Tribe of Nebraska, 542 F.2d 1002, 1007 (8th Cir. 1976); Cravens v. United States, 163 F.Supp. 309, 316 (W.D.Ark. 1958); cf. Schiefelbein v. United States, 124 F.2d 945, 948 (8th Cir. 1942) (action brought in eminent domain proceeding wherein access road is included in description). The nature and extent of the property interest to be acquired by the Government in a condemnation proceeding is, for the most part, discretionary with the federal officials bringing the action, and the interest taken is limited by the condemnation complaint. See United States v. 3,317.-39 Acres of Land, supra, 443 F.2d at 105-06. Since the United States, as sovereign, is immune from suit, the jurisdiction of this court is limited to the terms upon which the sovereign has consented to be sued. Id. at 106; see United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The Supreme Court, however, has allowed “severance damages” to be included in federal condemnation actions. “If only a portion of a single tract is" }, { "docid": "22912893", "title": "", "text": "by the legislative, executive, or judicial branches. Nor can the vindication of those rights depend on the expense in doing so. See Watson v. Memphis, 373 U. S. 526, 537-538 (1963). Because I believe that the Just Compensation Clause requires the constitutional rule outlined supra, I would vacate the judgment of the California Court of Appeal, Fourth District, and remand for further proceedings not inconsistent with this opinion. The city’s plan defined “open space” as “any urban land or water surface that is essentially open or natural in character, and which has appreciable utility for park and recreation purposes, conservation of land, water or other natural resources or historic or scenic purposes.” App. 52, n. 3. The phrase “inverse condemnation” generally describes a cause of action against a government defendant in which a landowner may recover just compensation for a “taking” of his property under the Fifth Amendment, even though formal condemnation proceedings in exercise of the sovereign’s power of eminent domain have not been instituted by the government entity. Agins v. City of Tiburon, 447 U. S. 255, 258, n. 2 (1980); United States v. Clarke, 445 U. S. 253, 257 (1980). See, e. g., Cal. Civ. Proc. Code Ann. § 1245.260 (West Supp. 1981). In the typical condemnation proceeding, the government brings a judicial or administrative action against the property owner to “take” the fee simple or an interest in his property; the judicial or administrative body enters a decree of condemnation and just compensation is awarded. See ibid. See generally 6 J. Sackman, Nichols’ Law of Eminent Domain § 24.1 (rev. 3d ed. 1980). In an “inverse condemnation” action, the condemnation is “inverse” because it is the landowner, not the government entity, who institutes the proceeding. “Eminent domain” is the “power of the sovereign to take property for public use without the owner’s consent.” Id., § 1.11, at 1-7. Formal proceedings initiated by the government are loosely referred to as either “eminent domain” or “condemnation” proceedings. See Agins v. City of Tiburon, supra, at 258, n. 2. One law review article, cited twice by the California Supreme" }, { "docid": "13530457", "title": "", "text": "involving private parties.”) (emphasis added). Allowing the landowner to recover here extends the general rule governing appellate fee awards in both directions against the government only. II. The majority holds that, even if the government succeeds in acquiring the land it seeks, the landowner is the prevailing party if he obtains an award greater than the government’s offer. This does not take into account either the intent Congress has expressed in other legislation or the real nature of condemnation proceedings. Congress has expressed the opinion that the landowner does not prevail when the government acquires the land, for in 1971 it enacted a statute dealing with costs and fees in condemnation suits in which the United States either does not acquire the land or abandons the proceeding. See 42 U.S.C. § 4654 (1976). This suggests that Congress considered the government the victor when it succeeds in obtaining the property. The congressional intimation accords with the nature of condemnation litigation. The objective of the exercise of the power of eminent domain is to secure property for public use. Unless the government loses or abandons the condemnation suit — situations provided for in § 4654 — it will be the “prevailing party.” See United States v. 341.45 Acres of Land, 542 F.Supp. 482 (D.Minn.1982); United States v. 101.80 Acres of Land, 92 F.R.D. 774 (D.Idaho 1982), appeal pending, No. 82-3046 (9th Cir. argued Dec. 8, 1982). This is because the government got what it sought — the land — even though it had to pay a higher price than it originally offered. See also Advisory Committee on Federal Rules of Civil Procedure, Comment to Fed.R.Civ.P. 71A (“[T]he condemn- or will normally be the prevailing party ....”) (quoted in full infra at 817). The majority holds, in effect, that the prevailing party requirement is satisfied in condemnation cases if the landowner recovers more than the government deposits with the district court. Focusing only on whether the award exceeds the government’s offer ignores the entire background of condemnation. Before the United States can institute condemnation proceedings it must appraise the land and negotiate with" }, { "docid": "22912894", "title": "", "text": "447 U. S. 255, 258, n. 2 (1980); United States v. Clarke, 445 U. S. 253, 257 (1980). See, e. g., Cal. Civ. Proc. Code Ann. § 1245.260 (West Supp. 1981). In the typical condemnation proceeding, the government brings a judicial or administrative action against the property owner to “take” the fee simple or an interest in his property; the judicial or administrative body enters a decree of condemnation and just compensation is awarded. See ibid. See generally 6 J. Sackman, Nichols’ Law of Eminent Domain § 24.1 (rev. 3d ed. 1980). In an “inverse condemnation” action, the condemnation is “inverse” because it is the landowner, not the government entity, who institutes the proceeding. “Eminent domain” is the “power of the sovereign to take property for public use without the owner’s consent.” Id., § 1.11, at 1-7. Formal proceedings initiated by the government are loosely referred to as either “eminent domain” or “condemnation” proceedings. See Agins v. City of Tiburon, supra, at 258, n. 2. One law review article, cited twice by the California Supreme Court in Agins, typifies this mode of analysis: “[Traditionally eminent domain and the police power have been treated as disjunctive. . . . The Constitution requires that just compensation be paid to landowners whose property has been condemned or taken by a government exercising its eminent domain power; if property is taken and no compensation awarded, the landowner is entitled to bring a so-called inverse condemnation action to compel payment. In contrast, under the police power constitutional requirements relate to the reasonableness of the relation between the means used and the ends sought; a landowner affected by an unreasonable regulation is entitled to bring an action challenging its validity.” Note, Eldridge v. City of Palo Alto: Aberration or New Direction in Land Use Law?, 28 Hastings L. J. 1569, 1570 (1977) (footnotes omitted). It is not merely linguistic coincidence that the California Supreme Court in Agins never analyzed the Tiburón zoning ordinance to determine whether a Fifth Amendment “taking” without just compensation had occurred. Instead, the court noted that “a zoning ordinance may be unconstitutional" }, { "docid": "2303392", "title": "", "text": "and extent of the interest that has been taken pursuant to eminent domain powers. Id. If the statute granting the power of eminent domain does not specify the quantum of the estate to be taken, the condemn- or may take only the estate that the particular public use demands. Id. As provided in 18 AmJur. Easements, § 115, at 741: In the absence of any definition of the estate which the grantee of the power is authorized to acquire or any limitations in the granting statute, no more property can be taken than the public use requires; this rule applies both to the amount of property and the estate or interest in such property to be acquired by the public. Furthermore, it is universally recognized that a grant of the power of eminent domain will not be extended by implication, and that when an easement will satisfy the purpose of the grant, the power to condemn the fee will not be included in the grant unless it is expressly provided. Accordingly it is well settled that when land is taken for the public use, unless the fee is necessary for the purposes for which the land is taken * * * the public acquires only an easement. The public easement, or servitude as it is sometimes called, in such a case extends to all uses directly or incidentally conducive to the advancement of the purpose for which the land was acquired, and to no others; and the owner retains the title to the land in fee and the right to make any use of it that does not interfere with the full and free exercise of the public easement. Generally, an instrument creating an easement must contain all of the formalities of an instrument granting land and should be definite and certain in its terms. See Gulf, 67 So.2d at 533. If the easement is definite and certain, it must be taken at face-value. If, however, the easement instrument is ambiguous, the court must endeavor to ascertain what the parties’ intentions were at the time the easements were obtained. See" }, { "docid": "5694909", "title": "", "text": "United States v. Winnebago Tribe of Nebraska, 542 F.2d 1002, 1007 (8th Cir. 1976); Cravens v. United States, 163 F.Supp. 309, 316 (W.D.Ark. 1958); cf. Schiefelbein v. United States, 124 F.2d 945, 948 (8th Cir. 1942) (action brought in eminent domain proceeding wherein access road is included in description). The nature and extent of the property interest to be acquired by the Government in a condemnation proceeding is, for the most part, discretionary with the federal officials bringing the action, and the interest taken is limited by the condemnation complaint. See United States v. 3,317.-39 Acres of Land, supra, 443 F.2d at 105-06. Since the United States, as sovereign, is immune from suit, the jurisdiction of this court is limited to the terms upon which the sovereign has consented to be sued. Id. at 106; see United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The Supreme Court, however, has allowed “severance damages” to be included in federal condemnation actions. “If only a portion of a single tract is taken, the owner’s compensation for that taking includes any element of value arising out of the relation of the part taken to the entire tract.” United States v. Miller, 317 U.S. 369, 376, 63 S.Ct. 276, 281, 87 L.Ed. 336 (1943) (footnote omitted); see Bauman v. Ross, 167 U.S. 548, 574, 17 S.Ct. 966, 976, 42 L.Ed. 270 (1897); United States v. 3,317.39 Acres of Land, supra, 443 F.2d at 105. In this case the Woodwards argue that they “ha[ve] only one damage claim which arises out of the flowage easement which crosses the access road and continues to and upon his property * * *.” Appellees’ brief at 14. We disagree. In United States v. 3,317.39 Acres of Land, supra, 443 F.2d at 105, the court found that the District Court did not have jurisdiction “to permit the landowners to introduce evidence relating to alleged flooding beyond the area described in the complaint and declaration of taking,” as it has the effect of increasing the declaration of taking or permitting a counterclaim in a" }, { "docid": "22545673", "title": "", "text": "taking has occurred, we need not consider whether a State may limit the remedies available to a person whose land has been taken without just compensation. The judgment of the Supreme Court of California is Affirmed. Shortly after it enacted the ordinances, the city began eminent domain proceedings against the appellants’ land. The following year, however, the city abandoned those proceedings, and its complaint was dismissed. The appellants were reimbursed for costs incurred in connection with the action. Inverse condemnation should be distinguished from eminent domain. Eminent domain refers to a legal proceeding in which a government asserts its authority to condemn property. United States v. Clarke, 445 U. S. 253, 255-258 (1980). Inverse condemnation is “a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted.” Id., at 257. The appellants also contended that the city's aborted attempt to acquire the land through eminent domain had destroyed the use of the land during the pendency of the condemnation proceedings. App. 10. The State Superior Court granted the appellants leave to amend the cause of action seeking a declaratory judgment, but the appellants did not avail themselves of that opportunity. The California Supreme Court also rejected appellants’ argument that the institution and abandonment of eminent domain proceedings themselves constituted a taking. The court found that the city had acted reasonably and that general municipal planning decisions do not violate the Fifth Amendment. The appellants also contend that the state courts erred by sustaining the demurrer despite their uncontroverted allegations that the zoning ordinances would “forever preven [t] . . . development for residential use,” id,., at 5, and “completely destro[y] the value of [appellant’s] property for any purpose or use whatsoever . . . ,” id., at 7. The California Supreme Court compared the express terms of the zoning ordinances with the factual allegations of the complaint. The terms of the ordinances permit construction of one to five residences on the appellants’ 5-acre tract. The court therefore rejected the contention that the ordinances prevented all" }, { "docid": "15105401", "title": "", "text": "OPINION OF THE COURT ROSENN, Circuit Judge. The central issue of this appeal concerns the district court’s exclusion of the testimony of two proposed expert witnesses as well as portions of the landowner’s testimony in a land condemnation proceeding. The United States Government, through its power of eminent domain, took various property interests in parcels of land owned by the appellant Sally Dickerson, Trustee (Dickerson). During a jury trial to determine the value of the condemned property interests, the trial judge refused to allow either of defendant Dickerson’s proposed experts to testify and struck portions of Dickerson’s testimony regarding the value of her land. The jury returned a judgment requiring the Government to pay Dickerson $95,-709.85 as just compensation for the taking, a substantially lower figure than the one urged by Dickerson and her proposed experts. Dickerson appeals, contending that the district court abused its discretion in making its exclusionary rulings. We conclude that it was error to exclude one of the proposed experts and to strike a portion of Dickerson’s testimony. We vacate the judgment and remand for further proceedings. I. On April 3, 1987, the Government brought an action to acquire certain property interests in three tracts of land owned by Dickerson as sole trustee of the property. These tracts, nominated 305, 305E, and 307E, were part of a 600-acre farm owned by Dickerson in Kent County, Delaware, near the Dover air force base. The Government took a fee interest in tract 305 and avigation easements in the other tracts in order to expand a runway at the base. Tract 305, a 20.84-acre parcel which the Government took in fee, had previously been encumbered by a federal clear zone easement and a clearance easement. Both these easements are intended to assure air force pilots clear vision when taking off and landing near the subject property; however, the clear zone easement is considerably more restrictive than the clearance easement. With the clear zone easement, the Government had previously acquired inter alia the right to make low and frequent flights, the right to remove all buildings and any obstructing vegetation," }, { "docid": "277686", "title": "", "text": "no action had been taken to repair the damage or to prevent further erosion; that the Corps finally responded to the complaints in January 1971 by advising the Cooleys that the cost to protect their homestead exceeded its fair market value and therefore the Corps had elected to condemn the property. The affiant further alleged that the Corps intended to condemn only his land even though other tracts adjacent or near his property had similar elevations along the shoreline. The Government answered the motion, denying that it acted in bad faith or arbitrarily and capriciously. Thereafter, the district court, without taking evidence or conducting a hearing denied the motion to vacate or modify the possession decree. The judge’s memorandum accompanying the order stated: The Court has considered the entire matter and finds that the United States v. 80.5 Acres of Land, etc., Co. of Shasta, Cal., 448 F.2d 980 (9th Cir., 1971), is controlling here. The Court finds that defendants’ motion to amend this Court’s prior order is without merit and will, therefore, be and the same is hereby denied. This appeal followed, and the possession order was stayed during the pendency of the appeal. I The order from which this appeal is taken is unclear. By referring to United States v. 80.5 Acres of Land, etc., 448 F.2d 980 (9th Cir. 1971), the district judge apparently took the position that the election of the Corps of Engineers to condemn the Cooleys’ land was not judicially reviewable. The judge went on to say, however, that the motion to vacate the order for possession was “without merit,” which might indicate that he found against the Cooleys on their claim of bad faith, arbitrariness, and capriciousness on the part of the Corps of Engineers; on the other hand, this could mean that he found the motion had no merit because it did not present a justiciable issue. With respect to the extent of judicial review over the right of eminent domain, courts have a fundamental but narrow function. The Supreme Court in Shoemaker v. United States, 147 U.S. 282, 298, 13 S.Ct." }, { "docid": "22819947", "title": "", "text": "this Court consistently made separate reference to condemnation proceedings and to the landowner’s cause of action to recover damages for the taking. Id., at 462, 467, 468. More recent decisions of this Court reaffirm this well-established distinction between condemnation actions and physical takings by governmental bodies that may entitle a landowner to sue for compensation. Thus, in Ivanhoe Irrigation District v. McCracken, 357 U. S. 275, 291 (1958), when discussing the acquisition by the Government of property rights necessary to carry out a reclamation project, this Court stated that such rights must be acquired by “paying just compensation therefor, either through condemnation or, if already taken, through action of the owners in the courts.” And in United States v. Dickinson, 331 U. S. 745, 749 (1947), this Court referred to the Government’s choice “not to condemn land but to bring about a taking by a continuous process of physical events.” See also id., at 747-748; Dugan v. Rank, 372 U. S. 609, 619 (1963). The phrase “inverse condemnation” appears to be one that was coined simply as a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted. As defined by one land use planning expert, “[i]n-verse condemnation is ‘a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency.’ ” D. Hagman, Urban Planning and Land Development Control Law 328 (1971) (emphasis added). A landowner is entitled to bring such an action as a result of “the self-executing character of the constitutional provision with respect to compensation. ...” See 6 P. Nichols, Eminent Domain § 25.41 (3d rev. ed. 1972). A condemnation proceeding, by contrast, typically involves an action by the condemnor to effect a taking and acquire title. The phrase “inverse condemnation,” as a common understanding of that phrase would suggest, simply describes an action that is the “inverse” or “reverse” of" }, { "docid": "3754404", "title": "", "text": "in the preliminary planning stages the Woodland Market tract was included within the proposed project area, it was excluded prior to any official action and was never a part of the project as established by ordinance. Rather, it at all times remained adjacent to but outside the project. These matters were not disputed by the plaintiff and no counter-affidavits were filed. On the basis of the record as thus established, the District Court concluded that no genuine issue of fact existed but that there had been no intentional taking of the plaintiff’s property and no exercise by the City of the right of eminent domain. Relying upon Foster v. Herley, 330 F.2d 87 (C.A.6, 1964) and Foster v. City of Detroit, 405 F.2d 138 (C.A.6, 1968), and concluding that the loss of customers and income was no more than consequential damages, unrecoverable in an action of this nature, the District Court sustained the motion for summary judgment and dismissed the lawsuit. The appellant contends that the District Court was in error in sustaining the motion for summary judgment in that the Court misconstrued the amended complaint as averring that the plaintiff’s losses were occasioned by the City initiating eminent domain action without completing such action, when in fact the plaintiff’s allegation and theory was that the plaintiff’s losses were occasioned by the City acting with the express or implied intention of taking the plaintiff’s property but without ever using its eminent domain powers. The appellant further contends that the District Court was in error in relying upon the Foster cases, swpra, since those cases involve property losses occasioned by the initiation of condemnation action followed by the abandonment thereof. It is clear from the undisputed facts in this case that there has been no taking of the plaintiff’s property by the City of Cleveland within the meaning of the Fifth and Fourteenth Amendments requiring payment of just compensation. The losses occasioned to the plaintiff were not the result of any intrusion or encroachment by the City upon the plaintiff’s property. Rather, the plaintiff’s losses were occasioned by the loss of" }, { "docid": "2119729", "title": "", "text": "United States Supreme Court has stated that an inverse condemnation occurs where the federal government condemns property, without conducting an eminent domain proceeding. See Agins v. City of Tiburon, 447 U.S. 255, 258 n. 2, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980) (“Inverse condemnation should be distinguished from eminent domain. Eminent domain refers to a legal proceeding in which a government asserts its authority to condemn property. Inverse condemnation is ‘a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted.’ ”) (quoting United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 63 L.Ed.2d 373 (1980)); see also Moden, 404 F.3d at 1342 (“Inverse condemnation is the cause of action against the government to recover the value of property taken where the government has not exercised the power of eminent domain.” (citation omitted)). The United States Court of Appeals for the Federal Circuit has recognized that “ ‘[i]nverse condemnation law is tied to, and parallels, tort law.’ ” Ridge Line Inc. v. United States, 346 F.3d 1346, 1355 (Fed.Cir.2003) (“Ridge Line”) (citing 9 Patrick J. Rohan & Melvin A Reskin, Nichols on Eminent Domain § 34.03[1] (3d ed. 1980 & Supp.2002)). Thus, when the Government challenges this court’s jurisdiction over a plaintiff’s inverse condemnation claim, arguing that it is merely a tort and therefore outside this court’s jurisdiction, the Federal Circuit requires that the trial court conduct a “two-part inquiry” to determine whether the alleged inverse condemnation claim is subject to the requirements of the Just Compensation Clause and within the court’s jurisdiction. See Ridge Line 346 F.3d at 1355. The first part of the Ridge Line inquiry requires the plaintiff to establish either that the federal government “intends to invade a protected property interest or the asserted invasion is the ‘direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action.’ ” Id. (quoting Columbia Basin Orchard v. United States, 132 Ct.Cl. 445, 132 F.Supp. 707, 709 (1955) (emphasis added)). Second, the plaintiff" }, { "docid": "22073787", "title": "", "text": "those proceedings is governed by Federal Rule of Civil Procedure 71A. In brief, Rule 71A requires the filing in federal district court of a “complaint in condemnation,” identifying the property and the interest therein that the United States wishes to take, followed by a trial — before a jury, judge, or specially appointed commission — of the question of how much compensation is due the owner of the land. The practical effect of final judgment on the issue of just compensation is to give the Government an option to buy the property at the adjudicated price. Danforth v. United States, 308 U. S. 271, 284 (1939). If the Government wishes to exercise that option, it tenders payment to the private owner, whereupon title and right to possession vest in the United States. If the Government decides not to exercise its option, it can move for dismissal of the condemnation action. Ibid.; see Fed. Rule Civ. Proc. 71A(i)(3). A more expeditious procedure is prescribed by 40 U. S. C. §258a. That statute empowers the Government, “at any time before judgment” in a condemnation suit, to file “a declaration of taking signed by the authority empowered by law to acquire the lands [in question], declaring that said lands are thereby taken for the use of the United States.” The Government is obliged, at the time of the filing, to deposit in the court, “to the use of the persons entitled thereto,” an amount of money equal to the estimated value of the land. Title and right to possession thereupon vest immediately in the United States. In subsequent judicial proceedings, the exact value of the land (on the date the declaration of taking was filed) is determined, and the owner is awarded the difference (if any) between the adjudicated value of the land and the amount already received by the owner, plus interest on that difference. Finally, Congress occasionally exercises the power of eminent domain directly. For example, when Congress thinks that a tract of land that it wishes to preserve inviolate is threatened with imminent alteration, it sometimes enacts a statute appropriating" }, { "docid": "21207098", "title": "", "text": "F. 2d 1326-27 n. 2 (1973), defined inverse condemnation as “a legal label for effective expropriation of private property, the sovereign acting indirectly without benefit of formal eminent domain proceedings In condemnation; thus, sovereign acts incompatible with an owner’s present enjoyment of his property rights.” It is interesting to note that as far as is known no taking claim has been advanced by the owners of tract 114, Marion D. and Lillian Vanada. There is no evidence defendant intended to take the tipple on June 25, 1965, or at any reasonable period of time thereafter and no act of the defendant has been cited or is present in this record from which one could Imply or reasonably infer such intent. Absent such an intent, there can be no taking. J. J. Henry Co. v. United States, 188 Ct. Cl. 39, 46, 411 F. 2d 1246, 1249 (1969) ; Biggs Rental Co. v. United States, 173 Ct. Cl. 789, 796, 353 F. 2d 1013, 1017 (1965), cert. denied, 384 U.S. 927 (1966). If this is so then plaintiff as a lessee may not be the proper party entitled to direct compensation. The lessor, not a party herein, may have greater rights under the circumstances. See e.g. The City of New York v. Cypress Ave. Holding Corp., 293 N.Y.S. 223 (1st Dept.), aff’d mem., 274 N.Y. 581, 10 N.E.2d 561 (1937). An item is generally regarded as a trade fixture if annexed to realty for the purpose of aiding one in possession thereof, especially a lessee, in the conduct of a business for profit. Bank of Shelbyville v. Hartford, 268 Ky. 135, 104 S.W. 2d 217, 218-19 (1937). Generally, whether a fixture is deemed realty or personalty turns on the circumstances of each case with certain criteria utilized by courts to assist them in reaching a determination. See 36A C.J.S. Fixtures, § 1, pp. 590-92 and § 38 — Trade Fixtures, pp. 691-94; see also Annot., 90 A.L.R. 159, (1934) (fixtures annexed by owner of realty), and Annot., 3 A.L.R. 2d 286 (1949) (fixtures annexed by lessee) relative to eminent domain proceedings." }, { "docid": "16437391", "title": "", "text": "term “undepreciated value” until the district court has been given an opportunity to pass on its significance. 2. Sushi Deli-SDH Lease Article 17 of the Sushi Deli-SDH lease provides, in pertinent part: All awards for the taking of any part of the premises or any payment made under the threat of the exercise of eminent domain shall be the property of both the Landlord and the Tenant in proportion to the respective possessory interests to the Premises.... The district court apparently accepted the argument posited by SDH, namely that, despite the lease provision, Sushi Deli would not be entitled to any portion of the condemnation settlement unless the settlement was structured so as to specify the precise amount to which Sushi Deli was entitled. That position fundamentally misunderstands the precedent in the field of eminent domain. It is well-established that when the government exercises its power of eminent domain, it compensates the people who have possessory interests in the seized land under the so called “undivided fee rule.” Victor P. Goldberg, Thomas W. Merrill, & Daniel Unumb, Bargaining in the Shadow of Eminent Domain: Valuing and Apportioning Condemnation Awards Betiveen Landlord and Tenant, 34 U.C.L.A. L. Rev. 1083, 1092-93 (April 1987). The “undivided fee rule” essentially operates by permitting the governmental authority to condemn property by providing just compensation, then allowing the respective interest holders to apportion the award among themselves, either by contract or judicial intervention. See, e.g., Burkhart v. United States, 227 F.2d 659, 662(9th Cir.1955) (“Usually, the courts treat the [eminent domain] proceeding for the division of proceeds as one of inter-pleader, where the government deposits the just compensation for the whole parcel and the landlord and tenant come in as claimants.”); Vivian v. Board of Trustees, 152 Colo. 556, 383 P.2d 801, 803 (Colo.1963) (“Once the reasonable market value of property subject to eminent domain proceedings has been established, the apportionment of that amount among persons claiming an interest therein is a matter of no concern to the condemnor.”). Once the government provides just compensation for the condemned property, its role is at an end, because" }, { "docid": "945516", "title": "", "text": "must be cognizant of recognizing contractual powers in the creditor that are, under traditional equity concepts, unconscionable. The power of eminent domain, however, does not require a balancing of interests, for the power has only two restrictions: that the condemnation be for a public purpose and that just compensation be paid. It is not necessary, therefore, to initiate an inquiry into the process whereby the power of appropriation originated. One further distinction involves the nature of the parties. Clearly the creditor seeking possession is an interested party having a selfish interest in the outcome of the litigation. In contrast, the State pursues condemnation on behalf of the general public and is a totally disinterested party to the proceedings. As to the purpose of the appropriation, the creditor seeks possession of the property in order to protect his economic investment and preserve the property from destruction, removal to another state, or concealment. Condemnation, however, is for the general public—a criteria easily tested in the district court before a loss of possession—and does not require a balancing of the relative interests of the parties. For these reasons, we believe the power of eminent domain to be unique and distinct from any alleged right of possession arising from debtor-creditor relationships and decline to apply the due process standard created by Sniadach and its progeny to this sovereign power. 3. Compensation. Plaintiffs’ third series of objections relate to the compensation standards in Texas, which are established by Tex.Rev.Civ. Stat.Ann. arts 3265 and 3266b. Basically, the compensation for land taken by eminent domain is measured by the market value of the land at the time of the taking. This is the date upon which the condemnor lawfully takes actual possession or . . . • takes constructively by a deposit of the special commissioners’ award. City of Fort Worth v. Corbin, 504 S.W.2d 828, 830 (Tex.1974). If only a portion of the tract is condemned, the Special Commissioners may take into consideration the increase or decrease in value of the remaining parcel by virtue of the condemnation. The- property owner is not entitled to compensation" }, { "docid": "8547267", "title": "", "text": "of being a grant of power is a limitation on its use, viz, that just compensation, be made. The amendment does not say when the compensation shall be made. Nor do the federal statutes invoked. In the absence of constitutional or statutory requirement the general rule is that pre-payment, of the price is not necessary before the taking or occupation, if due provision for payment and for the means by which the landowner may make his claim and receive compensation for damages is made.” United States v. A Certain Tract or Parcel of Land, D.C.Ga., 44 F.Supp. 712, 715. 40 United States Code Annotated § 258, in effect in 1938, only requires that eminent domain proceedings “shall conform, as near as may be” to the practice, pleadings in the courts of the State-within which the district court is held-And this requirement must give way whenever to adopt the State practice-would be inconsistent with the terms, defeat the purpose, or impair the effect, of any legislation of Congress. Chappell v. United States, 160 U.S. 499, 512, 16 S.Ct. 397. “There can be no question but that the condemnation proceeding, which was a proceeding in rem, gave title to the United States good against the world, as well as against the Bruton heirs who were parties- to the proceeding. ‘Such an exercise of eminent domain founds a new title and extinguishes all previous rights.’ ” Norman Lumber Co. v. United States, 4 Cir., 223 F.2d 868, 870. Under the federal law, “A condemnation proceeding is an action in rem. It is not the taking of rights of designated persons, but the taking of the property itself. Duckett & Co. v. United States, 266 U.S. 149, 151, 45 S.Ct. 38, 69 L.Ed. 216. When property is condemned the amount paid for it stands in the place of the property and represents all interest in the property acquired.” Eagle Lake Improvement Co. v. United States, 5 Cir., 160 F.2d 182, 184. The fact that the defendant Ivie was not a party to the proceeding, had no actual notice of same, and the further fact" }, { "docid": "855230", "title": "", "text": "Ohio 1967). However, appellee was permitted to maintain his claim that the City of Cleveland had abused the eminent domain proceedings and taken properties of Liberty Mortgage without just compensation. Fundamental to the decision is the reliance by the district court on appellee’s allegation that the City intended to appropriate these properties and, in fact, had already begun the condemnation procedures. These allegations presented questions concerning the abuse of the power of eminent domain which this Court in Foster v. Herley, 330 F.2d 87 (6th Cir. 1964), said was a sufficient basis for the exercise of federal jurisdiction. The following language of the district court is instructive as to its thinking: Under Foster v. Herley, supra, it is the law of this circuit that a municipality’s claimed abuse in its exercise of the power of eminent domain, with the claimed result of taking private property without just compensation, presents a question of federal jurisdiction under the fourteenth amend ment which a federal district court must hear and determine. Plaintiff’s amended complaint in charging the defendant City with conduct which tends to state an abuse in the exercise of the power of eminent domain presents a federal jurisdictional question under the fourteenth amendment as interpreted in Foster v. Herley, supra. 282 F.Supp. at 183. An examination of our opinion in Foster v. Herley, 330 F.2d 87 (6th Cir. 1964), and the district court’s opinion on remand, Foster v. City of Detroit, 254 F.Supp. 655 (E.D.Mich.1966), aff’d 405 F.2d 138 (6th Cir. 1968), is crucial to an understanding of the holding of the district court. Foster owned three tracts of land in the City of Detroit. In 1950 the City notified him that it intended to condemn his property and that in the meantime he should do nothing either to maintain or improve the property. A few months later the City instituted formal condemnation proceedings and placed a Us pendens against all property in the area. Additionally, the Detroit Common Council passed a resolution freezing the use and management of the property and prohibiting any new buildings or improvements without special permission" } ]

[ { "docid": "12184590", "title": "", "text": "1178 (concurring opinion). Thus, we generally will hear only cases of “ ‘clear right’ such as outright violation of a clear statutory provision ... or violation of basic rights established by a structural flaw, and not requiring in any way a consideration of the interrelated aspects of the merits____” Id. at 1180 (emphasis omitted). Claims of unreasonable agency delay clearly fall into that narrow class of interlocutory appeals from agency action over which we appropriately should exercise our jurisdiction. It is obvious that the benefits of agency expertise and creation of a record will not be realized if the agency never takes action. Agency delay claims also meet Judge Leventhal’s suggested criteria for our interlocutory intervention — not only is there an outright violation of 5 U.S.C. § 555(b)’s mandate that agencies decide matters in a reasonable time, there also is no need for the court to consider the merits of the issue before the agency. Finally and most significantly, Congress has instructed statutory review courts to compel agency action that has been unreasonably delayed. 5 U.S.C. § 706(1). In the context of a claim of unreasonable delay, the first stage of judicial inquiry is to consider whether the agency’s delay is so egregious as to warrant mandamus. Although this court has decided several cases involving claims of unreasonable delay, see, e.g., PCHRG v. FDA, 740 F.2d 21 (D.C.Cir.1984); Public Citizen Health Research Group v. Auchter, 702 F.2d 1150 (D.C.Cir.1983); PEPCO, 702 F.2d 1026 (D.C.Cir.1983); MCI Telecommunications Corp. v. FCC (“MCI”), 627 F.2d 322 (D.C. Cir.1980); Nader v. FCC, 520 F.2d 182 (D.C.Cir.1975), we have not articulated a single test for when the writ should issue. On reading these cases together, however, one can discern the hexagonal contours of a standard. Although the standard is hardly ironclad, and sometimes suffers from vagueness, it nevertheless provides useful guidance in assessing claims of agency delay: (1) the time agencies take to make decisions must be governed by a “rule of reason,” PEPCO, 702 F.2d at 1034; MCI, 627 F.2d at 340; (2) where Congress has provided a timetable or other indication of" } ]

[ { "docid": "23086984", "title": "", "text": "had both an absolute time period within which the Price Administrator must act and an additional requirement that the Administrator act \"within a reasonable time” within the absolute maximum time fixed for action. See Safeway Stores, 138 F.2d at 278-80. . The six factors the District of Columbia recognized in Telecommunications Research Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C.Cir.1984) [“TRAC ”], are as follows: (1) the time agencies take to make decisions must be governed by a \"rule of reason”; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not \"find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.’ ” . The FCC delay at issue in TRAC was not governed by any mandatory deadline. Instead, the only timing requirement Congress imposed on the FCC was the general APA mandate that agencies decide matters within a reasonable time. See id. at 79. Moreover, none of the cases on which TRAC relies involves mandatory agency deadlines. See Public Citizen Health Research Group v. FDA, 740 F.2d 21, 32 (D.C.Cir.1984) (relying on APA requirement that agency \"proceed to conclude a matter presented to it within a reasonable time” (quotation omitted)); Potomac Elec. Power Co. v. ICC, 702 F.2d 1026, 1034 (D.C.Cir.) (statute required ICC to \"act in a timely manner”), supplemented by, 705 F.2d 1343 (D.C.Cir.1983); Public Citizen Health Research Group v. Auchter, 702 F.2d 1150, 1158 (D.C.Cir.1983) (ordering agency action after a finding that rulemaking was \"unreasonably delayed” based in part on APA’s requirement that agency act \"within" }, { "docid": "21311585", "title": "", "text": "(quoting 47 U.S.C. § 251(d)(1)). The fact that the deadline Plaintiff seeks to enforce in this- case is set out in a regulation, not a statute, is immaterial; the Norton Court explained that an agency could be compelled to follow “agency regulations that have the force of law.” Id. at 65, 124 S.Ct. 2373. Defendants’ failure to respond to Plaintiff’s complaint is, therefore, the appropriate subject of a suit under Section 706(1). The question, then, is whether the Agency Defendants’ delay is “unreasonable” under the- APA. Although “[t]here- is no per se rule as to how-long is too long to wait for agency action,” In re American Rivers & Idaho Rivers United, 372 F.3d 413, 419 (D.C.Cir.2004) (internal quotation marks omitted), the Court of Appeals has, in a series of cases beginning with Telecommunications Research & Action Center v. FCC (“TRAC”), 750 F.2d 70, 79 (D.C.Cir.1984), outlined six' factors to guide courts in determining whether relief under Section 706(1) is warranted. “The first and most important factor is that ‘the time agencies take to make decisions must be governed by a rule of reason.’ ” In re Core Commc’ns, Inc., 531 F.3d 849, 855 (D.C.Cir.2008) (quoting TRAC, 750 F.2d at 80). The remaining five factors are: (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is “unreasonably delayed.” Id. (quoting In re United Mine Workers of Am. Int'l Union, 190 F.3d 545, 549 (D.C.Cir.1999)). Plaintiff argues that Defendants’ delay (now verging on" }, { "docid": "6713133", "title": "", "text": "the agency is under a duty not to delay unreasonably in making that choice.” Id. Agencies most often bear this duty of timeliness as a result of the APA’s broad prohibition against “unreasonable delay.” Id. (citing 5 U.S.C. §§ 555(b), 706(1)). In addition, as discussed in Section II, infra, the D.C. Circuit has established a meaningful standard by which to judge agency inaction in cases such as this one. See Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C.Cir.1984). Therefore, the Court does have jurisdiction over plaintiffs APA claim that defendants have unreasonably delayed adjudicating his application. See Thomas, 828 F.2d at 794; Nat’l Wildlife Fed’n v. Browner, 127 F.3d 1126, 1131 (D.C.Cir.1997) (stating that plaintiff could challenge the EPA’s unreasonable delay in making a discretionary decision under the APA). II. Merits of the APA Claim On the merits, defendants move to dismiss plaintiffs APA claim for failure to state a claim. Defendants summarily argue that plaintiffs factual allegations do not demonstrate an unreasonable delay, though they have not provided any specific explanations for why the delay for plaintiff to date has been reasonable. Plaintiff contends that he has stated a valid APA claim, and that on the undisputed facts, the Court should find the defendants’ delay unreasonable and grant his motion for summary judgment. The D.C. Circuit in Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C.Cir.1984) identified six factors (“TRAC” factors) relevant to determining whether agency delay is unreasonable: (1) the time agencies take to make decisions must be governed by a “rule of reason”; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the" }, { "docid": "21311587", "title": "", "text": "three years) is “pri-ma facie unreasonable” in light of the 180-day deadline. Dkt. 7 at 1. But the question is not that simple. As one commentator has observed, the cases that address agencies’ failure to comply with statutory deadlines “fall along the spectrum of judicial responses,” with some requiring strict compliance and others permitting dramatic deviation. 2 Richard J. Pierce, Administrative Law Treatise § 12.3 (5th ed. 2010). The Court of Appeals has both denied claims of undue delay under Section 706(1) when agencies have missed the mark by much more time than Defendants have here, see Grand Canyon Air Tour Coal. v. FAA, 154 F.3d 455, 476 (D.C.Cir.1998) (no remedy under Section 706(1) where Congress required agency to promulgate regulations within 120 days and regulations were not issued for ten years), and granted relief under Section 706(1) in cases of delay roughly analogous to the case before the Court, see MCI Telecomm. Corp. v. FCC, 627 F.2d 322, 340 (D.C.Cir.1980) (explaining that the Telecommunications Act “assumes that rates will be finally decided within a reasonable time encompassing months, occasionally a year or two, but not several years or a decade”). The key question, under the APA and TRAC, is whether the delay is “reasonable” in light of the evidence in the record. The problem before the Court is that there is no evidence in the record regarding the reasons behind the Agency Defendants’ failure to respond to Plaintiffs SFO complaint. In both their initial opposition to Plaintiffs motion for partial summary judgment, Dkt. 24, and in a supplemental opposition that the Court permitted them to file, Dkt. 60, the Agency Defendants do no more than reiterate their arguments as to why Plaintiff lacks a cause of action to compel them to respond to his complaint. As a result, the record is devoid of evidence or arguments that would justify Defendants’ failure to respond to Plaintiffs complaint. Although the question is not as simple as Plaintiff represents, the Court ultimately agrees that Defendants’ 2.75-year delay in responding to his SFO complaint is “unreasonable” under TRAC. As a basic matter, and" }, { "docid": "23086983", "title": "", "text": "38 U.S.C. § 7261(a)(2) to read: \"(a) In any action brought under this chapter, the Court of Veterans Appeals ... shall .. . compel action of the Secretary unlawfully withheld or unreasonably delayed.” Prior to the amendment, 38 U.S.C. § 7261(a)(2) only required the secretary to compel action \"unlawfully withheld.” The amendment added \"or unreasonably delayed” to the end of the existing law to bring it into accord with 5 U.S.C. § 706(1). See 135 Cong. Rec. 30,627 (1989) (Explanatory Statement on the Compromise Agreement on H.R. 901, as amended). . The judicial review provision of the APA which became 5 U.S.C. § 706(1) originally appeared as § 10(e)(A) of the APA in 1946. . The Safeway Stores case cited in the AG's Manual concluded that if the Administrator should unreasonably delay final action, a court may issue a writ of mandamus directing the Price Administrator to take action upon a pending request. That case appeared, without analysis, to conflate the concepts of \"unlawfully withheld” and \"unreasonably delayed,” perhaps because the statute it was interpreting had both an absolute time period within which the Price Administrator must act and an additional requirement that the Administrator act \"within a reasonable time” within the absolute maximum time fixed for action. See Safeway Stores, 138 F.2d at 278-80. . The six factors the District of Columbia recognized in Telecommunications Research Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C.Cir.1984) [“TRAC ”], are as follows: (1) the time agencies take to make decisions must be governed by a \"rule of reason”; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the" }, { "docid": "4113129", "title": "", "text": "the court in Fort Worth suggested that, in general, the “proper remedy” of a party seeking to enforce a statutory deadline is not to challenge the legitimacy of post-deadline agency actions, but “to apply for a court order compelling the [agency] to act.” 469 F.2d at 58. That, of course, is just what Barr is doing. The issue before us, then, is not whether the FDA’s sluggishness has violated a statutory mandate — it has — but whether we should exercise our equitable powers to enforce the deadline. Equitable relief, particularly mandamus, does not necessarily follow a finding of a violation: respect for the autonomy and comparative institutional advantage of the executive branch has traditionally made courts slow to assume command over an agency’s choice of priorities. See, e.g., In re Monroe Communications Corp., 840 F.2d 942, 946 (D.C.Cir.1988). Our leading case in this area, TRAC, identified six principles that have helped courts determine when mandamus is an appropriate remedy for agency delay: (1) the time agencies take to make decisions must be governed by a “rule of reason”; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’ ” 750 F.2d at 80 (citations and internal quotes omitted). Here we may assume that Congress’s 180-day deadline indeed supplies content for item one’s “rule of reason”, but a finding that delay is unreasonable does not, alone, justify judicial intervention. E.g., In re Center for Auto Safety, 793 F.2d 1346, 1354" }, { "docid": "6713134", "title": "", "text": "explanations for why the delay for plaintiff to date has been reasonable. Plaintiff contends that he has stated a valid APA claim, and that on the undisputed facts, the Court should find the defendants’ delay unreasonable and grant his motion for summary judgment. The D.C. Circuit in Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C.Cir.1984) identified six factors (“TRAC” factors) relevant to determining whether agency delay is unreasonable: (1) the time agencies take to make decisions must be governed by a “rule of reason”; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’ ” Id. at 80 (citations omitted). With regard to the first TRAC factor, plaintiffs application has been pending for over four years, which plaintiff argues exceeds the rule of reason. Defendants’ explanation for the delay is that the FBI name check has not been completed for plaintiff. The factual background provided by defendants with their motion generally describes the name check process, but fails to explain what the average or expected processing times are, or why plaintiffs particular name check has not been processed. Defendants had an opportunity to submit additional information or argument in their opposition to plaintiffs motion, but failed to do so. As defendants have described the name check process as one where data is primarily retrieved from an electronic database, and only occasionally from paper records, it does not seem reasonable to the Court that this process would take" }, { "docid": "21311586", "title": "", "text": "decisions must be governed by a rule of reason.’ ” In re Core Commc’ns, Inc., 531 F.3d 849, 855 (D.C.Cir.2008) (quoting TRAC, 750 F.2d at 80). The remaining five factors are: (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is “unreasonably delayed.” Id. (quoting In re United Mine Workers of Am. Int'l Union, 190 F.3d 545, 549 (D.C.Cir.1999)). Plaintiff argues that Defendants’ delay (now verging on three years) is “pri-ma facie unreasonable” in light of the 180-day deadline. Dkt. 7 at 1. But the question is not that simple. As one commentator has observed, the cases that address agencies’ failure to comply with statutory deadlines “fall along the spectrum of judicial responses,” with some requiring strict compliance and others permitting dramatic deviation. 2 Richard J. Pierce, Administrative Law Treatise § 12.3 (5th ed. 2010). The Court of Appeals has both denied claims of undue delay under Section 706(1) when agencies have missed the mark by much more time than Defendants have here, see Grand Canyon Air Tour Coal. v. FAA, 154 F.3d 455, 476 (D.C.Cir.1998) (no remedy under Section 706(1) where Congress required agency to promulgate regulations within 120 days and regulations were not issued for ten years), and granted relief under Section 706(1) in cases of delay roughly analogous to the case before the Court, see MCI Telecomm. Corp. v. FCC, 627 F.2d 322, 340 (D.C.Cir.1980) (explaining that the Telecommunications Act “assumes that rates will be finally decided within a" }, { "docid": "3772091", "title": "", "text": "to resolve disputes, a Circuit Court may resolve claims of unreasonable delay in order to protect its future jurisdiction. Id.; accord Air Line Pilots Association v. CAB, 750 F.2d 81 (D.C.Cir.1984). TRAC drew additional support from the Administrative Procedure Act (APA), which directs agencies to conclude matters presented to them “within a reasonable time,” 5 U.S.C. § 555(b) (1982), and specifies that the “reviewing court shall ... compel agency action unlawfully withheld or unreasonably delayed,” id. § 706(1). The TRAC panel was well aware that the APA “does not confer an independent grant of jurisdiction.” 750 F.2d at 76. That Act, however, does indicate a congressional view that agencies should act within reasonable time frames and that court[s] designated by statute to review agency actions may play an important role in compelling agency action that has been improperly withheld or unreasonably delayed. Id. at 77; see also Garland, Deregulation and Judicial Review, 98 Harv.L.Rev. 505, 567-68 (1985). Congress lodged authority to review a Mine Act mandatory health or safety standard, once promulgated, exclusively in courts of appeals. 30 U.S.C. § 811(d) (1982). TRAC, it would appear plain from the decision’s terms and logic, requires us to consider the merits of the unreasonable delay claim remaining in this case. But MSHA, supported by AMC, urges that Con gress ordered otherwise through two prescriptions. First, the agency and intervenor cite the final sentence of the Mine Act’s provision for judicial review of promulgated standards: “The procedures of this subsection shall be the exclusive means of challenging the validity of a mandatory health or safety standard.” Id. Second, MSHA and AMC call our attention to 30 U.S.C. § 956, which provides that the APA (5 U.S.C. §§ 551-559, 701-706) “shall not apply to the making of any order, notice, or decision made pursuant to this [Act], or to any proceeding for the review thereof.” We do not believe that either provision, sensibly read, renders MSHA’s prepromulgation rulemaking activity untouchable by judicial hands. The last sentence of 30 U.S.C. § 811(d) appears to us designed simply to make the unremarkable point that one who" }, { "docid": "17277390", "title": "", "text": "Dep’t of Interior, 538 U.S. 803, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003); Sokaogon Chippewa Cmty. v. Babbitt, 961 F.Supp. 1276, 1282-84 (W.D.Wis.1997) (distinct possibility of improper political influence shown). A showing of bad faith or improper behavior is by no means the only basis for inquiry beyond the administrative record. Thus, the court’s review of agency conduct is not limited to the record in an action to “compel agency action unlawfully withheld or unreasonably delayed.” Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir.2000); see also San Francisco BayKeeper v. Whitman, 297 F.3d 877, 886 (9th Cir.2002); Independence Mining Co. v. Babbitt, 105 F.3d 502, 511 (9th Cir.1997). In such cases, to determine the reasonableness of a delay the court is guided by the following considerations, known as the TRAC factors: (1) the time agencies take to make decisions must be governed by a “rule of reason”; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’ ” In re Barr Laboratories, Inc., 930 F.2d 72, 74-75 (D.C.Cir.1991) (quoting Telecommunications Research & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C.Cir.1984)). Of particular significance, given the issues in this case, is the observation made by the District of Columbia Circuit when examining an earlier claim of unreasonable delay by the FDA in a matter concerning over-the-counter drugs: The agency must justify its delay to the court’s satisfaction. If the court determines that the agency delays in" }, { "docid": "16546925", "title": "", "text": "(noting that mandamus is “an extraordinary remedy [that] generally will not issue unless” these requirements are met) (citing Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984)). Respondents move to dismiss for lack of subject matter jurisdiction or for failure to state a claim on the ground that petitioners have failed to establish the first element — a clear right to the relief sought — because there has been no unreasonable delay warranting mandamus. Respondents’ motion for summary judgment rests on the same ground. Petitioners seek summary judgment on the ground that the delay of several years on the pending applications and the adverse impact on petitioners demonstrate unreasonable delay clearly warranting relief. As a threshold matter, the Court will treat respondents’ motion as one for summary judgment. The Court clearly has jurisdiction to review a claim of unreasonable delay of agency action. The Administrative Procedure Act requires an agency to act “within a reasonable time,” 5 U.S.C. § 555(b), and authorizes a reviewing court to “compel agency action ... unreasonably delayed,” § 5 U.S.C. 706(1). Whether petitioners have, in fact, demonstrated unreasonable delay — and thus, a “clear right” to relief under the Mandamus Act — is intertwined with the merits inquiry, which the Court will thus consider through summary judgment based on the undisputed material facts, as discerned from the parties’ briefs and exhibits. The leading case on the issue of unreasonable delay, Telecommunications Res. and Action Ctr. v. FCC, 750 F.2d 70 (D.C.Cir.1984) (“TRAC”), identifies six principles relevant to determining whether agency delay is so unreasonable as to warrant mandamus: (1) the time agencies take to make decisions must be governed by a “rule of reason”; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect" }, { "docid": "378719", "title": "", "text": "the agency decisional process and to order expedition if the pace lags unreasonably. Section 555(b) of APA requires an agency to “proceed to conclude a matter presented to it” within “a reasonable time,” 5 U.S.C. § 555(b), and Section 706(1) explicitly authorizes a court to “compel agency action * * * unreasonably delayed.” Id. § 706(1). These provisions give courts authority to review ongoing agency proceedings to ensure that they resolve the questions in issue within a reasonable time. Public Citizen Health Research Group v. Auchter, 702 F.2d 1150, 1158 (D.C.Cir.1983); Potomac Electric Power Co. v. ICC, 702 F.2d 1026, 1034 (D.C.Cir.1983); MCI Telecommunications Corp. v. FCC, 627 F.2d 322, 340 (D.C.Cir.1980). As the Potomac Electric Power Co. court put it, “[Tjhere must be a ‘rule of reason' to gov-' ern the time limit to administrative proceedings. Quite simply, excessive delay saps the public confidence in an agency’s ability to discharge its responsibilities and creates uncertainty for the parties, who must incorporate the potential effect of possible agency decisionmaking into future plans.” 702 F.2d at 1034. See Nader v. FCC, 520 F.2d 182, 207 (D.C.Cir.1975). Public health concerns must enter the calculus under this rule of reason; “[djelays that might be altogether reasonable in the sphere of economic regulation are less tolerable when human lives are at stake.” Public Citizen Health Research Group v. Auchter, supra, 702 F.2d at 1157. In sum, the law does provide means by which the interests of regulatory beneficiaries can be protected from the adverse effects of delays in agency action. Applying these principles to the dispute before us, we conclude that ripeness and finality considerations prevent us from holding that FDA is bound to its position of June-September 1982 that aspirin products are misbranded and require Reye’s Syndrome warning labels. To accept HRG’s position we would have to find that the May 1982 conclusions of the FDA working group, the June 1982 statement of Secretary Schweiker calling for a labeling rule and an education campaign, and the September 20, 1982 decision of the Secretary to sign a proposed regulation requiring labeling, see Part I-C" }, { "docid": "11897182", "title": "", "text": "Our consideration of any mandamus petition “starts from the premise that issuance of the writ is an extraordinary remedy, reserved only for the most transparent violations of a clear duty to act.” In re Bluewater Network, 234 F.3d 1305, 1315 (D.C.Cir.2000). There is, of course, no doubt that the FCC has a “clear duty” to respond to our WorldCom remand. “In the case of agency inaction,” however, “we not only must satisfy ourselves that there indeed exists such a duty, but that the agency has ‘unreasonably delayed’ the contemplated action.” Id. (quoting 5 U.S.C. § 706(1)). The central question in evaluating “a claim of unreasonable delay” is “whether the agency’s delay is so egregious as to warrant mandamus.” Telecommunications Research & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 79 (D.C.Cir.1984). We consider that question below. A “There is no per se rule as to how long is too long to wait for agency action.” In re American Rivers & Idaho Rivers United, 372 F.3d 413, 419 (D.C.Cir.2004). In TRAC, we outlined six factors relevant to the analysis. We cautioned that those factors are not “ironclad,” but rather are intended to provide “useful guidance in assessing claims of agency delay.” TRAC, 750 F.2d at 80. The first and most important factor is that “the time agencies take to make decisions must be governed by a ‘rule of reason.’ ” Id. The remaining five are: (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency" }, { "docid": "12184582", "title": "", "text": "defeated by an agency that fails to resolve disputes, a Circuit Court may resolve claims of unreasonable delay in order to protect its future jurisdiction. Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 593 (D.C.Cir.1971); see also Dean Foods, 384 U.S. at 603, 86 S.Ct. at 1742 (quoting McClellan v. Carland, 217 U.S. 268, 280, 30 S.Ct. 501, 504, 54 L.Ed. 762 (1910) (“ ‘[w]e think it the true rule that where a case is within the appellate jurisdiction of a higher court a writ ... may issue in aid of the appellate jurisdiction which might otherwise be defeated....’”). The Administrative Procedure Act (“APA”) provides additional support for our jurisdiction here. That Act directs agencies to conclude matters presented to them “within a reasonable time,” 5 U.S.C. § 555(b) (1982), and stipulates that the “reviewing court shall ... compel agency action unlawfully withheld or unreasonably delayed ....” 5 U.S.C. § 706(1) (1982). While the APA unquestionably does not confer an independent grant of jurisdiction, Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 985, 51 L.Ed.2d 192 (1977), section 706(1) coupled with section 555(b) does indicate a congressional view that agencies should act within reasonable time frames and that court’s designated by statute to review agency actions may play an important role in compelling agency action that has been improperly withheld or unreasonably delayed. See, e.g., Public Citizen Research Group v. Commissioner, Food & Drug Administration (“PCHRG v. FDA”), 740 F.2d 21, 32 (D.C.Cir.1984). B. The Exclusivity of Our Jurisdiction We also conclude that our present jurisdiction over claims that affect our future statutory review authority is exclusive. It is well settled that even where Congress has not expressly stated that statutory jurisdiction is “exclusive,” as it has here with regard to final FCC actions, a statute which vests jurisdiction in a particular court cuts off original jurisdiction in other courts in all cases covered by that statute. Compensation Department of District Five, United Mine Workers v. Marshall, 667 F.2d 336, 340 (3rd Cir.1981); Assure Competitive Transportation, Inc. v. United States, 629 F.2d 467, 471 (7th Cir.1980), cert." }, { "docid": "18972894", "title": "", "text": "evaluation of alternatives and risks is all that is required. It is a breakdown in procedure, rather than disagreement with the decision reached, which forms the basis of a NEPA claim. See Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 737, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998); see also Grand Council of Crees v. F.E.R.C., 198 F.3d 950, 959 (D.C.Cir.2000) (NEPA “ ‘does not impose substantive duties mandating particular results, but simply prescribes the necessary process for preventing uninformed — rather than unwise— agency action.’ ”) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 333, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). Accordingly, the Court finds that the agency’s analysis of health risks to susceptible populations does not render it in violation of NEPA. C. The 1999 Rulemaking Petition Finally, the Fund plaintiffs argue that defendants’ failure to respond to Bluewater Network’s 1999 Rulemaking Petition seeking regulations prohibiting snowmobiling and trail grooming throughout the entire National Park System amounts to unreasonably delayed agency action in violation of 5 U.S.C. §§ 555(b) and 706(1). Pursuant to the APA, an agency must “conclude” a matter presented to it “within a reasonable time.” 5 U.S.C. § 555(b) (2003). If agency action is “unlawfully withheld or unreasonably delayed,” a reviewing court is authorized to compel agency action. 5 U.S.C. § 706(1); see also Mashpee Wampanoag Tribal Council v. Norton, 336 F.3d 1094, 1099-1100 (D.C.Cir.2003). In determining whether an agency has unreasonably delayed action, this Circuit looks to the following criteria for guidance: (1) the time agencies take to make decisions must be governed by a “rule of reason”; (2) ... [the] statutory scheme may supply content for this rule of reason; (3) delays ... are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; (6) the court need not find any impropriety lurking behind agency lassitude in order to hold" }, { "docid": "16546926", "title": "", "text": "unreasonably delayed,” § 5 U.S.C. 706(1). Whether petitioners have, in fact, demonstrated unreasonable delay — and thus, a “clear right” to relief under the Mandamus Act — is intertwined with the merits inquiry, which the Court will thus consider through summary judgment based on the undisputed material facts, as discerned from the parties’ briefs and exhibits. The leading case on the issue of unreasonable delay, Telecommunications Res. and Action Ctr. v. FCC, 750 F.2d 70 (D.C.Cir.1984) (“TRAC”), identifies six principles relevant to determining whether agency delay is so unreasonable as to warrant mandamus: (1) the time agencies take to make decisions must be governed by a “rule of reason”; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’ ” Id. at 80 (citations omitted); see also In re Barr Lab., 930 F.2d 72, 74-75 (D.C.Cir.1991). The parties agree that this case is effectively controlled by application of these principles from TRAC. Under the first and second TRAC factors, the parties focus on the length of the delay in relation to the time for action contemplated by the statute. Both parties agree that there is no statutory timetable governing the agency action at issue. At the same time, there is no dispute that the delays at issue here are substantial, ranging from two to four years. Petitioners contend that the case law establishes that a delay in this range simply does not fit within the rule of reason. See MCI" }, { "docid": "17479855", "title": "", "text": "520, 549 (D.C.Cir.1997) (“An agency does not have to ‘make progress on every front before it can make progress on any front.’ ”) (quoting Personal Watercraft Indus. Ass’n v. Department of Commerce, 48 F.3d 540, 544 (D.C.Cir.1995)). Because the UMWA does not complain about what the agency has done but rather about what the agency has yet to do, we reject the suggestion that its petition is untimely and move to a consideration of the merits. Ill The UMWA seeks a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651(a), to “compel agency action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1) (Administrative Procedure Act). Although we plainly have jurisdiction over such requests, “[mjandamus is an extraordinary remedy [and] we require similarly extraordinary circumstances to be present before we will'interfere with an ongoing agency process.” Community Nutrition Institute v. Young, 773 F.2d 1356, 1361 (D.C.Cir.1985). In exercising our equitable powers under the All Writs Act, we are guided by the factors outlined in Telecommunications Research & Action Center v. FCC (TRAC) for assessing claims of agency delay: (1) the time agencies take to make decisions must be governed by a “rule of reason”; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’ ” 750 F.2d 70, 80 (D.C.Cir.1984) (citations omitted). A Central to the UMWA’s petition is the second TRAC factor (which, as TRAC notes, gives content to the first). The union contends that MSHA" }, { "docid": "11448629", "title": "", "text": "is not the source of plaintiffs’ rights. Rather, it is designed to help rectify the government’s longstanding failure. Given the record before it, the district court reasonably concluded that absent court intervention, discharge of the government’s fiduciary obligations may yet be far off. Appellants note that the 1994 statute provides no deadlines for the reforms at issue. Failure to provide a statutory timetable may indicate that Congress sought to leave the timing of reform to agency discretion. But the lack of a timetable does not give government officials carte blanche to ignore their legal obligations. This is particularly true where, as here, the act of outlining specific steps toward reform was enacted against a background of agency-delay dating back many years. The district court noted that the consequences of further agency delay are potentially quite severe. Documents necessary for a proper accounting and reconciliation have been lost or destroyed, and the district court found little reason to believe that this would change in the near future. “The longer defendants delay in creating the plans necessary to render an accounting, the greater the chance that plaintiffs will never receive an actual accounting of their own trust money.” Cobell V, 91 F.Supp.2d at 47. Given that many plaintiffs rely upon their IIM trust accounts for their financial well-being, the injury from delay could cause irreparable harm to plaintiffs’ interests as IIM trust beneficia-riés. Thus it seems that “the interests at stake are not merely economic interests in [an administrative scheme], but personal interests in life and health.” Public Citizen Health Research Group v. Auchter, 702 F.2d 1150, 1156 (D.C.Cir.1983) (citation omitted). Concern for “administrative convenience” certainly counsels against interfering with the government’s reform priorities. See Grand Canyon Air Tour Coalition v. FAA, 154 F.3d 455, 476 (D.C.Cir.1998) (“Although the APA gives courts the authority to ‘compel agency action unlawfully withheld or unreasonably delayed,’ we are acutely aware of the limits of our institutional competence in the highly technical area at issue in this ease.”(eitations omitted)). Yet neither a lack of sufficient funds nor administrative complexity, in and of themselves, justify extensive delay," }, { "docid": "23086967", "title": "", "text": "any court has discretion. The agency must act by the deadline. If it withholds such timely action, a reviewing court must compel the action unlawfully withheld. To hold otherwise would be an affront to our tradition of legislative supremacy and constitutionally separated powers. In support of the contrary position, the Secretary argues that we should exercise our discretion and consider the context surrounding his legislative duty, as the District of Columbia Circuit did under similar circumstances in In re Barr Labs., Inc., 930 F.2d 72 (D.C.Cir.1991). In In re Bart', the court refused to order the Food and Drug Administration (“FDA”) to comply with a statutorily-imposed 180-day deadline for approving or disapproving generic drug applications. The court held that the “FDA’s sluggish pace violate[d] a statutory deadline,” but refused to issue the writ of mandamus sought by Barr Laboratories. See id. at 73. Without reference to § 706, the court explained that “[e]quitable relief, particularly mandamus, does not necessarily follow a finding of a violation.” Id. at 74. The court then stated that: “[o]ur leading case in this area, TRAC, identified six principles that have helped courts determine when mandamus is an appropriate remedy for agency delay. ...” Id. Dismissing the import of Congress’ deadline, the court concluded that “a finding that delay is unreasonable does not, alone, justify judicial intervention.” Id. at 75. In light of the clear command of § 706, we cannot agree. Section 706 requires that a reviewing court “shall compel agency action ... unreasonably delayed,” and despite the In re Barr court’s contrary conclusion, we believe that once a court deems agency delay unreasonable, it must compel agency action. Neither TRAC nor any of the cases it relied on to “discern the hexagonal contours of a standard” involved agency inaction in the face of a mandatory statutory deadline. TRAC, 750 F.2d at 80. However helpful the hexagonal standard of TRAC may be when considering a discretionary time schedule, we decline to apply it to the Secretary’s failure to designate the critical habitat for the silvery minnow where Congress has established a specific, non-discretionary time within" }, { "docid": "11691605", "title": "", "text": "original matter, we need not decide in which court relief from undue delay must be sought and whether APA or mandamus relief would be appropriate in such a case. The APA directs agencies to conclude matters presented to them “[w]ith due regard for the convenience and necessity of the parties ... and within a reasonable time.” 5 U.S.C. § 555(b) (1982). It further provides that a “person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant section, is entitled to judicial review thereof.” 5 U.S.C. § 702 (1982 and Supp. III 1985). Finally, the APA authorizes actions for a mandatory injunction to enforce compliance with its requirements, 5 U.S.C. § 703 (1982), and requires reviewing courts to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1) (1982). In light of the foregoing provisions of the APA, we believe that it authorizes actions in the district court to compel agency action unlawfully withheld or unreasonably delayed, at least in cases where judicial review of an agency’s final action would be in the district court in the first instance. United States v. Von Neumann, 474 U.S. 242, 106 S.Ct. 610, 617 and n. *, 88 L.Ed.2d 587 (1986) (Stevens, J., concurring in the judgment)(noting that defendants conceded aggrieved party can bring APA suit to compel resolution of petition for remission or mitigation in unreasonably delayed forfeiture proceedings); International Association of Machinists and Aerospace Workers v. National Mediation Board, 425 F.2d 527, 534-37 (D.C.Cir.1970); Local 1928, American Federation of Government Employees v. Federal Labor Relations Authority, 630 F.Supp. 947, 950 (D.D.C.1986). The fact that the agency action challenged is not “final” does not alter our analysis here. The APA “give[s] courts authority to review ongoing agency proceedings to ensure that they resolve the questions in issue within a reasonable time.” Public Citizen Health Research Group v. Commissioner, Food and Drug Administration, 740 F.2d 21, 32 (D.C.Cir.1984). The enactment of a statutory remedy for unreasonable administrative delay creates, in our view, a special form of administrative finality. Any" } ]

[ { "docid": "9423963", "title": "", "text": "a debt are available under non-bankruptcy law, then they are available here. See Wegmans Food Markets, Inc. v. Lutgen (In re Lutgen), No. 98-CV-0764E (SC), 1999 WL 222605, at 2-3 (W.D.N.Y. April 5, 1999). Thus, as explained in In re Reid, this Court is of the view that it must award attorney’s fees incurred here, as part of the judgment of nondischargeability, if the Plaintiff would be entitled to them under non-bankruptcy law. See F.C.C. National Bank v. Reid (In re Reid), 237 B.R. 577, (Bankr.W.D.N.Y.1999). Here, obviously, there is no contract provision for such fees as there was in Lutgen. Nor is there a statutory entitlement as in Cohen v. De La Cruz. See 523 U.S. 213, 118 S.Ct. 1212, 140 L.Ed.2d 341. Nor is there cause in this Court for a finding of vexatious litigation, etc. that would abrogate the American Rule for the Debtor’s defending this action here. The Debtor’s defense has not been frivolous in substance or in presentation. Indeed, both counsel are to be commended for their zealous yet civil presentation of an issue that otherwise might have been devastatingly charged with emotion. However, this Court has often held in a different context (the alimony, maintenance and support context) that a debtor’s forcing the holder of a nondis-chargeable claim to come here to prove that the claim is nondischargeable, may add to the nondischargeable claim the cost of so proving. The principle is that the purpose of awarding support is undermined if the debtor may force the depen-dant party to hire a lawyer to prove that it was indeed support. (This is qualitatively different from this writer’s repeated, but now-reversed view that when the holder of a contract claim comes here to prove-up § 523(a)(2) fraud, the contract provision for fees has been discharged, even though the fraud has not been discharged. See Lutgen, 1999 WL 222605, at *2-3.) Analogizing from the matrimonial content, I find that the very same considerations that entitle an injured party to attorney’s fees when it proves a willful violation of a federal court order,- warrant an award of attorney’s" } ]

[ { "docid": "10323923", "title": "", "text": "was on the contract and that California law applied in awarding attorney’s fees. Id. Specifically, the Baroff court recognized that “[u]nder California law, a tort action for fraud arising out of a contract is not an action on a contract within the meaning of [CCC] Section 1717.” Id. at 443 (citation omitted). However, the Baroff court held that an action to rescind a fraudulently induced agreement is an “action on a contract” within the meaning of CCC § 1717. Therefore, the Baroff court held that the debtor was entitled to attorney’s fees pertaining to the fraudulent inducement count. On the other hand, the fiduciary capacity count was a tort action and did not entitle the debtor to recover attorney’s fees. Id. Similarly, in American Express Travel Related Servs. Co. Inc. v. Hashemi (In re Hashemi), 104 F.3d 1122 (9th Cir.1996), the Ninth Circuit held that if the bankruptcy court did not need to determine whether the contract was enforceable, then the dischargeability claim is not an action on the contract within the meaning of CCC § 1717. Id. at 1126. Subsequent to Baroff and Hashemi, the California Supreme Court held in Santisas v. Goodin, 17 Cal.4th 599, 71 Cal.Rptr.2d 830, 951 P.2d 399 (1998), that CCC § 1717 applies only to attorney’s fees incurred in actions involving a contract claim. Id. at 615, 71 Cal.Rptr.2d 830, 951 P.2d 399. In Santisas, the buyers brought an action against the seller’s broker for breach of contract and negligent misrepresentation. Based on an attorney’s fees provision in a purchase agreement between the parties, the buyers sought attorney’s fees in their complaint. The buyers voluntarily dismissed their case prior to trial. The sellers then moved to recover their attorney’s fees as costs under CCP §§ 1021, 1032, 1033.5 and the attorney’s fees provision in the purchase agreement. The buyers opposed, arguing that recovery of attorney’s fees after a voluntary dismissal is barred under CCC § 1717. The superior court awarded the sellers their attorney’s fees, and the Court of Appeal affirmed. See Santisas, 17 Cal.4th at 603-04, 71 Cal.Rptr.2d 830, 951 P.2d 399. On" }, { "docid": "16121320", "title": "", "text": "determine the merits of the dispute. In Klingman the bankruptcy court held that a creditor who prevailed under section 523(a)(4) could recover prepetition attorney’s fees awarded in state court. Klingman v. Levinson (In re Levinson), 58 B.R. 831, 837 (Bankr.N.D.Ill.1986), aff'd, 66 B.R. 548 (N.D.Ill.1986), aff'd, 831 F.2d 1292 (1987); cf. Galpin v. Galpin (In re Galpin), 66 B.R. 127, 132 (N.D.Ga.1985) (holding that the “bankruptcy court should not ... award attorney’s fees for work on proceedings in state court that have not been awarded by the relevant state court.”). When a bankruptcy court determines that the underlying debt is nondischargeable, then “attorney’s fees awarded by a state court based on state statutory or contractual grounds are [also] nondischargeable.” Levinson, 58 B.R. at 837 n. 7 (citations omitted). The Levinson court reasoned that the “attorney’s fees are part of the state court judgment.” Id.; see Texas Venture Partners v. Christian (In re Christian), 111 B.R. 118, 122 (Bankr.W.D.Tex.1989) (holding that attorney’s fees awarded to creditors in a state court final judgment were nondischargeable under § 523(a)(2)(A) (citations omitted). We have not found, nor have the creditors directed our attention to, any cases holding that prepetition attorney’s fees are nondis-chargeable under section 523(a) absent a state court judgment awarding attorney’s fees to the creditors. The state courts did not award attorney’s fees to FELC or WCC. FELC did not even proceed against the Luces or the Luce Partnership in state court. The state court did not enter a final judgment in the case brought by WCC to recover the unpaid balances on its equipment leases. We agree with the district court’s affirmance of the bankruptcy court’s denial of prepetition attorney’s fees to FELC and WCC. 2. Postpetition Attorney’s Fees. FELC and WCC also seek postpetition attorney’s fees incurred by them in litigating this adversary proceeding. After the bankruptcy court and district court entered judgments in this adversary proceeding, this Court decided Jordan v. Southeast Nat’l Bank (In re Jordan), 927 F.2d 221 (5th Cir.1991). In Jordan this Court first confronted the issue of whether post-petition attorney’s fees incurred by prevailing creditors" }, { "docid": "6592019", "title": "", "text": "a party to recover attorney’s fees incurred in the litigation of a contract claim. See In re Davi-son, 289 B.R. at 726 (citing Santisas v. Goodin, 17 Cal.4th 599, 615, 71 Cal.Rptr.2d 830, 951 P.2d 399 (1998)). Section 1021 permits recovery of attorney’s fees by agreement between the parties, and does not limit recovery of attorney’s fees to actions on the contract. Id. at 724. Attorney’s fees for fraud claims may be recovered if the contract so provides. Appellant argues that the bankruptcy court misapplied California law. First, appellant contends that the bank ruptcy court misapplied Davison, the Ninth Circuit BAP’s leading authority on the issue of attorney’s fees recoverable under Section 1021. Appellant specifically claims that the bankruptcy court misconstrued Davison as adopting a per se rule that the provision “to enforce the terms of the contract” never includes fraud claims. The bankruptcy court, however, made no such broad-sweeping assertion. Rather, the bankruptcy court properly interpreted Davison as holding that the creditor’s action in that case must have been brought to enforce its rights under the agreement. The Ninth Circuit BAP denied attorney’s fees because the finding that the debtor had not committed fraud did not depend on the enforcement or interpretation of the terms of that agreement. Furthermore, the bankruptcy court committed no error in applying the holding of Davison to the instant matter. To determine whether a prevailing party may recover attorney’s fees for non-contractual claims under Section 1021, a court must look to the language of the agreement. 3250 Wilshire Blvd. Bldg. v. W.R. Grace & Co., 990 F.2d 487, 489 (9th Cir.1993). Section 14.6.5 of the contract provided: “In the event it becomes necessary for the Contractor to engage legal counsel to collect payments due and unpaid under the Contract Documents, the prevailing party shall be entitled to all costs of collection including reasonable attorney’s fees.” The bankruptcy court did not abuse its discretion when it determined that the language of Section 14.6.5 was narrower than in Davison. The bankruptcy court concluded that the phrase, to “collect payments due and unpaid under the Contract,” was" }, { "docid": "20682683", "title": "", "text": "n. 2). See also Vierra, 173 B.R. at 418 (extending Levy, and finding no basis for attorney’s fee award as part of underlying judgment to be nondischargeable under § 523(a)(2)). More recent Ninth Circuit cases have held that attorney’s fees and costs that are “ancillary obligations” may attach to the primary debt if they have “a direct and apparent genesis in the original claim,” and if they “are directly consequent to the setting of damages by the courts in the form of final judgments, and the costs of securing performance thereof.” In re Florida, 164 B.R. 636, 639 (9th Cir.BAP1994). One court’s rationale is as follows: [T]o rule that the debtor need not pay attorney’s fees on the basic fraud action because he forced the litigation into the bankruptcy court before it could take place in a state forum is to reward someone who has been found by this court to be a defrauder. In re Klause, 181 B.R. 487, 498 (Bankr.C.D.Cal.1995). Other circuit courts agree. “[I]f the actual damages are non-dischargeable under ... § 523(a)(2)(A) ... the attorney’s fees will also be non-dischargeable.” Levinson, 831 F.2d at 1296 (citing In re Hunter, 771 F.2d 1126, 1131 (8th Cir.1985)). Furthermore, the Ninth Circuit Court of Appeals clearly has held that prevailing creditors in nondischargeability proceedings are entitled to their contractual attorney’s fees under state law if the bankruptcy court adjudicates a contract action in connection with the bankruptcy court proceeding. Hashemi, 104 F.3d at 1126-27; In re Baroff, 105 F.3d 439, 442 (9th Cir.1997) (prevailing creditor can recover partial attorney’s fees in nondischargeability action for litigation of contract enforcement question determined by the bankruptcy court). Where the state court already awarded attorney’s fees pursuant to state law, the foregoing Ninth Circuit precedent would allow those fees to be excepted from discharge as part of the total state court judgment. It was evident from the default judgment that the state court awarded damages which flowed from Debtors’ “intentional misrepresentation.” Even though the complaint sought attorney’s fees in the breach of contract count, the judgment specifically awarded them as part of the" }, { "docid": "17550918", "title": "", "text": "are not bound by our unpublished cases like Levitt, we find it particularly persuasive. See Fed. R.App. P. 32.1; 9th Cir. BAP Rule 8013-1. See also Charlie Y., Inc. v. Carey (In re Carey), 446 B.R. 384, 390 (9th Cir. BAP 2011) (supporting this principle). In Cohen, the Supreme Court held that the discharge exception under section 523(a)(2)(A) applies to all liability arising on account of a debtor’s fraudulent conduct. 523 U.S. at 223, 118 S.Ct. 1212. To reach this determination, the Court interpreted the statutory language of “debt for” and concluded that the phrase “debt for” as used in section 523 means “debt as a result of,” “debt with respect to,” or “debt by reason of,” and includes as nondis-chargeable any treble damages, attorney’s fees, costs, and “other relief that may exceed the value obtained by the debtor.” Id. Because the creditors in Cohen were entitled to treble damages and attorney’s fees and costs under state law for the debtor’s fraudulent conduct, the entire debt was nondischargeable, including the attorney’s fees and costs. Therefore, under Cohen, the determinative question for awarding attorney’s fees is whether the creditor would be able to recover the fee outside of bankruptcy under state or federal law. Levitt, BAP No. AZ-07-1166, 2008 WL 8448069; Bertola, 317 B.R. at 99-100 (if creditor could recover attorney’s fees in a nonbankruptcy court those fees will be recoverable); Kilborn v. Haun (In re Haun), 396 B.R. 522, 528 (Bankr.D.Idaho 2008) (determining Cohen applies to attorney’s fees awards in nondischargeability actions and holding that inquiry for recovery of fees is whether creditor would be entitled to fees in state court for “establishing those elements of the claim which the bankruptcy court finds support a conclusion of nondischargeability”). The Supreme Court did not limit its holding in Cohen to cases only under section 523(a)(2)(A). The Court also cited sections 523(a)(1)(B), (a)(4), (a)(6), and (a)(9) as clear examples of instances in which damages, including attorney’s fees, that exceed actual damages would be non-dischargeable. 523 U.S. at 219-20, 118 S.Ct. 1212. Notably, Cohen did not cite section 523(a)(14) specifically, presumably because it" }, { "docid": "9614044", "title": "", "text": "II Mr. Draper contends that the bankruptcy court properly refused to grant Ms. Renfrow her attorney’s fees and that the district court erred in reversing the bankruptcy court’s ruling. Ms. Renfrow maintains that she is entitled to recover the attorney’s fees incurred during the bankruptcy proceeding because she was required to demonstrate the validity of the provisions of the state court’s divorce decree under Washington law that Mr. Draper pay certain debts and hold her harmless from any collection action in order to prevail on her claim that the debts were non-dischargeable under § 523(a)(15)(A)-(B). A district court’s decision on appeal from a bankruptcy court order is reviewed de novo, applying the same standard of review to the bankruptcy court’s findings as did the district court. See Kord Enterprises II v. California Commerce Bank (In re Kord Enterprises II), 139 F.3d 684, 686 (9th Cir.1998); Heritage Ford v. Baroff (In re Baroff), 105 F.3d 439, 441 (9th Cir.1997). We will not disturb the bankruptcy court’s refusal to award attorney’s fees to Ms. Renfrow unless the court erroneously applied the law or abused its discretion. See Cedic Dev. Co. v. Warnicke (In re Cedic Dev. Co.), 219 F.3d 1115, 1116 (9th Cir.2000). There is no general right to recover attorney’s fees under the Bankruptcy Code. See In re Kord Enterprises II, 139 F.3d at 687 (stating the rule and one of its statutory exceptions pursuant to 11 U.S.C. § 506(b)); In re Baroff, 105 F.3d at 441. Debts incurred in a divorce proceeding are generally nondischargeable in bankruptcy. See 11 U.S.C. § 523(a)(15). Section 523(a)(15) grants exclusive jurisdiction to the bankruptcy courts to determine dischargeability. We have recently discussed the issue of attorney’s fees in nondischargeability proceedings in In re Baroff, 105 F.3d 439 (9th Cir.1997), and American Express Travel Related Services Co. v. Hashemi (In re Hashemi), 104 F.3d 1122 (9th Cir.1996). In re Baroff involved a dispute over a car dealership that ended in bankruptcy. Creditors filed a nondischargeability action against the debtor pursuant to § 523, alleging that the debtor had fraudulently induced them to enter into a" }, { "docid": "10323919", "title": "", "text": "including treble damages, attorney’s fees, and other relief that may exceed the value obtained by the debtor. Cohen, 523 U.S. at 223, 118 S.Ct. 1212 (emphasis added). In other words, “[o]nce it is established that specific money or property has been obtained by fraud, ... ‘any debt’ arising therefrom is excepted from discharge.” Id. at 218, 118 S.Ct. 1212. Because the attorney’s fees awarded to the tenants were allowed under the New Jersey law, they were “debts” arising from the fraud and therefore nondischargeable. Id. at 223, 118 S.Ct. 1212. Later, in Pham, the creditor filed a complaint to determine certain credit card debts nondisehargeable under § 523(a)(2)(A) and requested attorney’s fees under its cardmember agreements and CCC § 1717. The complaint alleged that the debtor obtained credit by actual fraud. The bankruptcy court granted a default judgment for the credit card debt, but denied the creditor’s request for attorney’s fees. See Pham, 250 B.R. at 94-95. On appeal, we noted that after Cohen, attorney’s fees are nondisehargeable under § 523(a)(2) if they are recoverable “in a non-bankruptcy court.” Id. at 99. If so, the attorney’s fees are nondisehargeable. We therefore remanded for the bankruptcy court to determine if the cardmember agreements supported an award of attorney’s fees in a fraud action under California law. Id. at 99. 1. California Civil Code § 1717 Under California law, CCC § 1717 authorizes attorney’s fees: [i]n any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs. Cal. Civil Code § 1717(a). Therefore, CCC § 1717 provides for attorney’s fees in an “action on a contract.” Id. The Ninth Circuit, in Baroff, held that “California courts liberally construe ‘on a contract’ to extend to any action ‘[a]s long" }, { "docid": "6911430", "title": "", "text": "Prejudgment interest is appropriate when the plaintiff has been wrongfully deprived of its money. It is presumptively available in cases governed by federal law, including cases under Section 523 of the Bankruptcy Code. In re Glatstian, 215 B.R. 495, 497 (Bankr.D.N.J.1997). The rate of prejudgment interest in nondischargeability actions is calculated pursuant to 28 U.S.C. § 1961. In re Senese, 245 B.R. 565, 578 (Bankr.N.D.Ill.2000). The interest accrues from the date that the wrongful deprivation began. Glatstian, 215 B.R. at 498. There was no evidence adduced at trial as to when the DEBTOR’S obligation to repay the GROUP for her personal phone charges and personal charges on the GROUP’S credit card accrued. The latest possible date is the date of the DEBTOR’S separation from employment, July 21, 1998, which is the date that this Court will use in the absence of any evidence establishing an earlier date. Under 28 U.S.C. § 1961, the applicable rate of interest as of that date is 5.375%. Interest at that rate from July 20, 1998 through the date of this judgment on the amount of $8,446.46 is $2,267.51. The GROUP is also entitled to an award of costs. The GROUP’S request for punitive damages and attorney fees, however, will not be allowed. Under the Supreme Court’s decision in Cohen v. de la Cruz, 523 U.S. 213, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998), an award of punitive damages on a fraud claim is nondischargeable. An award of punitive damages is only proper under Illinois law in cases of intentional and outrageous misconduct. Jannotta v. Subway Sandwich Shops, Inc., 125 F.3d 503 (7th Cir.1997). This is not such a case. No exceptional circumstances exist here which would justify an award of punitive damages. A prevailing creditor may not recover attorney fees in a dischargeability proceeding, absent a statutory or contractual basis for rendering such an award. In re Atchison, 255 B.R. 790 (Bankr.M.D.Fla.2000). Here, the GROUP is not relying on a state court award of attorney fees nor has it identified a contractual or statutory basis for an award of fees. Accordingly, its request for" }, { "docid": "16121319", "title": "", "text": "nondis-chargeable under section 523(a)(2)(A)? If so, is that fraud properly imputed to Billye Luce under the standards set forth in section 11(B) of this opinion, rendering Billye Luce’s debt on the first WCC lease nondis-chargeable under section 523(a)(2)(A)?; 2) Did WCC prove by a preponderance of the evidence that Billye Luce acted with reckless indifference with respect to the first WCC lease, rendering Billye Luce’s debt on the first WCC lease nondischargeable under section 523(a)(2)(A)? D. Attorney’s Fees The district court affirmed the bankruptcy court’s denial of all attorney’s fees to both FELC and WCC. On cross-appeal, both creditors seek prepetition attorney’s fees, or, alternatively, postpetition attorney’s fees. We review these questions of law de novo. 1. Prepetition Attorney’s Fees. Both FELC and WCC claim entitlement to attorney’s fees incurred before the Luces filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. WCC instituted suit to recover the unpaid balance on its equipment leases in state district court before the Luces filed under Chapter 7. The state court did not finally determine the merits of the dispute. In Klingman the bankruptcy court held that a creditor who prevailed under section 523(a)(4) could recover prepetition attorney’s fees awarded in state court. Klingman v. Levinson (In re Levinson), 58 B.R. 831, 837 (Bankr.N.D.Ill.1986), aff'd, 66 B.R. 548 (N.D.Ill.1986), aff'd, 831 F.2d 1292 (1987); cf. Galpin v. Galpin (In re Galpin), 66 B.R. 127, 132 (N.D.Ga.1985) (holding that the “bankruptcy court should not ... award attorney’s fees for work on proceedings in state court that have not been awarded by the relevant state court.”). When a bankruptcy court determines that the underlying debt is nondischargeable, then “attorney’s fees awarded by a state court based on state statutory or contractual grounds are [also] nondischargeable.” Levinson, 58 B.R. at 837 n. 7 (citations omitted). The Levinson court reasoned that the “attorney’s fees are part of the state court judgment.” Id.; see Texas Venture Partners v. Christian (In re Christian), 111 B.R. 118, 122 (Bankr.W.D.Tex.1989) (holding that attorney’s fees awarded to creditors in a state court final judgment were nondischargeable under §" }, { "docid": "6592018", "title": "", "text": "committed four errors. First, appellant argues that the bankruptcy court departed from California law in holding that the contract’s provision for attorney’s fees does not cover actions for fraud in the underlying agreement. Second, appellant contends that the bankruptcy court ignored significant extrinsic evidence that interpreted the attorney’s fees provision. Third, appellant argues that the bankruptcy court mischaracterized the suit as having little to do with the contract because it failed to look at the nature of the plaintiffs claim and its conduct in litigating them. Fourth, appellant contends that the bankruptcy court erred in focusing its discussion on Section 1717 rather than Section 1021. 1. California Law. There is no independent right to attorney’s fees in an adversary bankruptcy proceeding. In re Baroff 105 F.3d 439, 441 (9th Cir.1997). A prevailing party may be awarded attorney’s fees, however, if attorney’s fees would have been awarded under substantive state law. Ibid, (citing In re Johnson, 756 F.2d 738, 741 (9th Cir.1985)). California law permits recovery for attorney’s fees under two separate provisions. Section 1717 allows a party to recover attorney’s fees incurred in the litigation of a contract claim. See In re Davi-son, 289 B.R. at 726 (citing Santisas v. Goodin, 17 Cal.4th 599, 615, 71 Cal.Rptr.2d 830, 951 P.2d 399 (1998)). Section 1021 permits recovery of attorney’s fees by agreement between the parties, and does not limit recovery of attorney’s fees to actions on the contract. Id. at 724. Attorney’s fees for fraud claims may be recovered if the contract so provides. Appellant argues that the bankruptcy court misapplied California law. First, appellant contends that the bank ruptcy court misapplied Davison, the Ninth Circuit BAP’s leading authority on the issue of attorney’s fees recoverable under Section 1021. Appellant specifically claims that the bankruptcy court misconstrued Davison as adopting a per se rule that the provision “to enforce the terms of the contract” never includes fraud claims. The bankruptcy court, however, made no such broad-sweeping assertion. Rather, the bankruptcy court properly interpreted Davison as holding that the creditor’s action in that case must have been brought to enforce its rights" }, { "docid": "10538342", "title": "", "text": "B.R. 366, 376-77 (Bankr.W.D.Mich.1998) (noting in a § 523(a)(6) proceeding for conversion in which debt was found nondischargeable that Cohen allows no attorney fees absent a statute or contract providing for them); Wegmans Food Markets, Inc. v. Lutgen (In re Lutgen), 225 B.R. 37, 40-41 (Bankr.W.D.N.Y.1998) (to extrapolate from Cohen a rule that a creditor is always entitled to attorneys’ fees incurred where creditor succeeds in establishing a nondischargeable debt would be to incorrectly hold that the American Rule never applies when a creditor prevails in a § 523(a)(2) fraud claim); Kress v. Kusmierek (In re Kusmierek), 224 B.R. 651, 658 (Bankr. N.D.Ill.1998) (Cohen, which awarded attorneys’ fee under New Jersey Consumer Fraud Act, was not support for allowance of fees incurred in bankruptcy court based upon § 523(a)(4)). Therefore, the American Rule requiring either a statutory or contractual basis for an award of attorney fees still controls allowance of attorney fees in this proceeding. There is no statutory basis for an award of attorney fees. Nothing in § 523(a)(6) indicates that Congress intended the prevailing party to be awarded fees. Further, Congress expressly allowed the debtor to recover fees under certain circumstances, inapplicable here, as detailed in § 523(d). Had Congress intended to allow creditors attorney fees in § 523(a)(6) actions it would have so indicated. Iaquinta, 98 B.R. at 926-67 (remedy created by § 523(a)(6) conversion action does not give creditor a statutory right to attorney fees). There is no contract that controls the allowance of attorney fees claims in this proceeding. While there is an underlying contract between the parties, this is not a proceeding based upon the Co-Maker and Security Agreement. As previously stated, a breach of contract is insufficient to bar discharge of the debt under § 523(a)(6). Rather, this is a proceeding based upon willful and malicious injury to America First sounding in tort. Therefore, any attorney fee provision in the Co-Maker and Security Agreement is not controlling. Lutgen, 225 B.R. at 40-41 (in an action for tortious conduct, no contractual provision warrants departure from the American Rule); Iaquinta, 98 B.R. at 927 (§" }, { "docid": "10323927", "title": "", "text": "under CCC § 1717. Therefore, it held that “California law permits recovery of attorney’s fees by agreement, for tort as well as contract actions.” Id; Accord, Santisas, 17 Cal.4th at 622, 71 Cal.Rptr.2d 830, 951 P.2d 399. If there is an attorney’s fees provision in an agreement between the parties, we look to the language of the agreement to determine whether an award of attorney’s fees is warranted in a tort action. See 3250 Wilshire Boulevard Bldg., 990 F.2d at 489; Klause v. Thompson (In re Klause), 181 B.R. 487, 500 (Bankr.C.D.Cal.1995). Here, both the Agreement and the Note contained an attorney’s fees provision. Therefore, we will discuss both. a. The Agreement Paragraph 19 of the Agreement provided the parties with attorney’s fees: If any action at law or in equity, or any arbitration, is necessary to enforce or to interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs, and the necessary disbursements in addition to any other relief to which he may be entitled. Agreement (Mar.1988), at 3. In Klause, the buyers of an apartment building brought a §§ 523(a)(2) and (a)(6) action against the seller after discovering that the seller had misrepresented the condition of the building. After obtaining a judgment, the buyers sought attorney’s fees. The purchase agreement provided that “ ‘[i]f a lawsuit or other proceeding is instituted to enforce the rights under this Agreement ... the prevailing party shall be entitled to recover court costs and reasonable attorney’s fees.’ ” Klause, 181 B.R. at 500. The bankruptcy court rejected attorney’s fees under CCC § 1717 because the claim did not involve a contract action. Turning to CCP § 1021 and referring to the purchase agreement, the court noted that “fees will be awarded if the suit is instituted to enforce the rights under the agreement.” Id. at 501 (emphasis in original). According to the Klause court, the words “to enforce” have a limited meaning. In other words, the § 523(a)(2) action brought by the buyers must be used to “enforce” their rights under the agreement. Because one" }, { "docid": "20682684", "title": "", "text": "523(a)(2)(A) ... the attorney’s fees will also be non-dischargeable.” Levinson, 831 F.2d at 1296 (citing In re Hunter, 771 F.2d 1126, 1131 (8th Cir.1985)). Furthermore, the Ninth Circuit Court of Appeals clearly has held that prevailing creditors in nondischargeability proceedings are entitled to their contractual attorney’s fees under state law if the bankruptcy court adjudicates a contract action in connection with the bankruptcy court proceeding. Hashemi, 104 F.3d at 1126-27; In re Baroff, 105 F.3d 439, 442 (9th Cir.1997) (prevailing creditor can recover partial attorney’s fees in nondischargeability action for litigation of contract enforcement question determined by the bankruptcy court). Where the state court already awarded attorney’s fees pursuant to state law, the foregoing Ninth Circuit precedent would allow those fees to be excepted from discharge as part of the total state court judgment. It was evident from the default judgment that the state court awarded damages which flowed from Debtors’ “intentional misrepresentation.” Even though the complaint sought attorney’s fees in the breach of contract count, the judgment specifically awarded them as part of the damages for fraud. Therefore, the bankruptcy court did not err by determining that the entire judgment debt for fraud, including attorney’s fees was nondischargeable. CONCLUSION The bankruptcy court properly applied collateral estoppel to the default judgment. The factual issues necessary to establish fraud and misrepresentation under § 523(a)(2)(A) were adjudicated in state court, and Debtors did not raise a genuine issue of material fact which would prevent summary judgment in Gonya’s favor. The attorney’s fee award was part of the underlying fraud judgment and was properly deter mined to be nondischargeable. The bankruptcy court’s order is AFFIRMED. . Unless otherwise indicated, references to \"Chapter,\" \"Section/S” or \"Code\" are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330; references to \"Fed.R.Bankr.P.” are to the Federal Rules of Bankruptcy Procedure, which make applicable certain Federal Rules of Civil Procedure (\"Fed.R.Civ.P.”). . Gonya refers to this objection as Exhibit 1 in Appellee’s Excerpts of Record. These excerpts were not filed nor served upon Debtors. Nevertheless, Debtors have conceded, in their Reply Brief, that there was an objection based on" }, { "docid": "10323924", "title": "", "text": "§ 1717. Id. at 1126. Subsequent to Baroff and Hashemi, the California Supreme Court held in Santisas v. Goodin, 17 Cal.4th 599, 71 Cal.Rptr.2d 830, 951 P.2d 399 (1998), that CCC § 1717 applies only to attorney’s fees incurred in actions involving a contract claim. Id. at 615, 71 Cal.Rptr.2d 830, 951 P.2d 399. In Santisas, the buyers brought an action against the seller’s broker for breach of contract and negligent misrepresentation. Based on an attorney’s fees provision in a purchase agreement between the parties, the buyers sought attorney’s fees in their complaint. The buyers voluntarily dismissed their case prior to trial. The sellers then moved to recover their attorney’s fees as costs under CCP §§ 1021, 1032, 1033.5 and the attorney’s fees provision in the purchase agreement. The buyers opposed, arguing that recovery of attorney’s fees after a voluntary dismissal is barred under CCC § 1717. The superior court awarded the sellers their attorney’s fees, and the Court of Appeal affirmed. See Santisas, 17 Cal.4th at 603-04, 71 Cal.Rptr.2d 830, 951 P.2d 399. On appeal, the California Supreme Court adopted a narrow view of CCC § 1717 and held that “[CCC] section 1717 applies only to actions that contain at least one contract claim. If an action asserts both contract and tort or other noncon-tract claims, [CCC] section 1717 applies only to attorney fees incurred to litigate the contract claims.” Santisas, 17 Cal.4th at 615, 71 Cal.Rptr.2d 830, 951 P.2d 399 (citations omitted). In other words, only a contract claim is an “action on a contract” within the meaning of CCC § 1717. Id. After concluding that the buyers’ complaint included a claim for breach of contract, the Santisas court denied the sellers their request for attorney’s fees incurred in their defense of the breach of contract claim because they were not “prevailing parties” within the meaning of CCC § 1717. Id. at 617, 71 Cal.Rptr.2d 830, 951 P.2d 399. Because Santisas was decided after Baroff, we will follow its holding and narrowly apply CCC § 1717 and approve attorney’s fees only if the action involves a contract claim." }, { "docid": "9614045", "title": "", "text": "court erroneously applied the law or abused its discretion. See Cedic Dev. Co. v. Warnicke (In re Cedic Dev. Co.), 219 F.3d 1115, 1116 (9th Cir.2000). There is no general right to recover attorney’s fees under the Bankruptcy Code. See In re Kord Enterprises II, 139 F.3d at 687 (stating the rule and one of its statutory exceptions pursuant to 11 U.S.C. § 506(b)); In re Baroff, 105 F.3d at 441. Debts incurred in a divorce proceeding are generally nondischargeable in bankruptcy. See 11 U.S.C. § 523(a)(15). Section 523(a)(15) grants exclusive jurisdiction to the bankruptcy courts to determine dischargeability. We have recently discussed the issue of attorney’s fees in nondischargeability proceedings in In re Baroff, 105 F.3d 439 (9th Cir.1997), and American Express Travel Related Services Co. v. Hashemi (In re Hashemi), 104 F.3d 1122 (9th Cir.1996). In re Baroff involved a dispute over a car dealership that ended in bankruptcy. Creditors filed a nondischargeability action against the debtor pursuant to § 523, alleging that the debtor had fraudulently induced them to enter into a settlement agreement. The creditors asserted state and federal claims. See 105 F.3d at 440. The bankruptcy court granted summary judgment to the debtor after determining that the California statute of frauds barred the introduction of evidence necessary for the creditors to establish their claims. See id. at 441. The bankruptcy court denied the debtor’s request for attorney’s fees. The district court affirmed. See id. We reversed the district court’s judgment. See id. at 443. We acknowledged in In re Baroff that “[n]o general right to attorney[’s] fees exists under the Bankruptcy Code.” Id. at 441. We also held, however, that “[ble-cause state law necessarily controls an action on a contract, a party to such an action is entitled to an award of fees if the contract provides for an award and state law authorizes fee shifting agreements.” Id. (emphasis added). We reasoned that because the bankruptcy court was required to determine whether the California statute of frauds applied to the creditors’s fraudulent inducement claim before ruling on the question of dischargeability, “the document containing the" }, { "docid": "12221667", "title": "", "text": "§ 523 itself provided that fees for prosecuting an Adversary case would become additional debt, the situation might be otherwise. However, it is clear that, without an award of attorneys’ fees under non-bankruptcy law, the fees incurred by Plaintiffs attorneys cannot even be awarded herein, let alone made nondis-chargeable. It is true that the Seventh Circuit stated that “ancillary obligations such as attorneys’ fees and interest may attach to the primary debt; consequently, their status depends on that of the primary debt.” Klingman v. Levinson, 831 F.2d 1292, 1296 (7th Cir.1987) (quoting In re Hunter, 771 F.2d 1126, 1131 (8th Cir.1985)). However, even in Kling-man, the court was referring to an award of attorneys’ fees which was stipulated to in a consent judgment, not a separate award of attorneys’ fees made by the bankruptcy court which heard the dischargeability action. See also In re Pawlinski 170 B.R. 380, 381 (Bankr.N.D.Ill.1994) (finding award of attorneys’ fees nondischargeable where attorneys’ fees were awarded in underlying state court action). Thus, Plaintiffs complaint will be denied to the extent it seeks adjudication here of the non-dischargeability of attorneys’ fees incurred prosecuting this action. While those fees might be charged by the probate court, whether such fees can be allowed under Pennsylvania law for prosecuting the Adversary is up to that court. However, the Klingman authority would support nondis-chargeability for any fees found by the Pennsylvania court to be due as a result of Defendant’s defalcation, as well as costs and post-judgment interest. CONCLUSION For reasons set forth above and pursuant to order separately entered, the debt owed by Debtor James A. Kusmierek to Plaintiff as representative of the probate estate of Freda Kusmierek will be declared non-dis-chargeable to the extent of $20,624.38 heretofore adjudicated in the Pennsylvania court, plus post-judgment interest and costs allowed under Pennsylvania law, plus any additional amounts that the same court may adjudicate under Pennsylvania law for additional damages or recovery resulting from Defendants’ defalcation, including fees and litigation expenses if thereby allowed. However, Plaintiffs request to this Court to find award attorneys’ fees and expenses to be allowed and" }, { "docid": "10538341", "title": "", "text": "the amount representing the harm that it sustained. Restatement (1977) § 903. e. Attorney Fees America First also seeks attorney fees and costs based upon the contractual provision contained in the Co-Maker and Security Agreement. Both the American Rule and the Restatement (1977) § 914, provide that damages in a tort action do not ordinarily include attorney fees. The American Rule applies in bankruptcy cases and therefore attorney fees are not allowable unless there is some statutory basis for their award or an enforceable contract providing for such fees. In re Nichols, 221 B.R. 275, 278 (Bankr.N.D.Okla.1998). Recently, the Supreme Court explored the extent of the debt encompassed by a nondis-chargeability judgment based upon a state statute in Cohen v. De La Cruz, 523 U.S. 213, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998) (any debt, including punitive damages and attorney fees, based upon a statute that arises from fraudulently obtaining money or property may not be discharged). However, Cohen does not abrogate the American Rule. Clark & Gregory, Inc. v. Hanson (In re Hanson), 225 B.R. 366, 376-77 (Bankr.W.D.Mich.1998) (noting in a § 523(a)(6) proceeding for conversion in which debt was found nondischargeable that Cohen allows no attorney fees absent a statute or contract providing for them); Wegmans Food Markets, Inc. v. Lutgen (In re Lutgen), 225 B.R. 37, 40-41 (Bankr.W.D.N.Y.1998) (to extrapolate from Cohen a rule that a creditor is always entitled to attorneys’ fees incurred where creditor succeeds in establishing a nondischargeable debt would be to incorrectly hold that the American Rule never applies when a creditor prevails in a § 523(a)(2) fraud claim); Kress v. Kusmierek (In re Kusmierek), 224 B.R. 651, 658 (Bankr. N.D.Ill.1998) (Cohen, which awarded attorneys’ fee under New Jersey Consumer Fraud Act, was not support for allowance of fees incurred in bankruptcy court based upon § 523(a)(4)). Therefore, the American Rule requiring either a statutory or contractual basis for an award of attorney fees still controls allowance of attorney fees in this proceeding. There is no statutory basis for an award of attorney fees. Nothing in § 523(a)(6) indicates that Congress intended the" }, { "docid": "18786472", "title": "", "text": "”[v]irtually every court of appeals has concluded that collateral estoppel is applicable in discharge exception proceedings”). . In determining whether a particular debtor was acting in a fiduciary capacity for purposes of section 523(a)(4), the Court must look to both state and federal law. The scope of the concept of fiduciary duty under 11 U.S.C. § 523(a)(4) is a question of federal law; however, state law is important in determining whether a trust obligation exists. In re Bennett, 989 F.2d 779, 784 (5th Cir.1993) (citing In re Angelle, 610 F.2d 1335, 1339 (5th Cir.1980)). . Plaquemines Parish Commission Counsel v. Delta Development Company, Inc., 502 So.2d 1034, 1040-41 (La.1987) (holding the attorney-client relationship superinduces a trust status of the highest order and imposes upon the attorney the imperative of dealing with his client on the basis of the strictest fidelity and honor); Federal Savings & Loan Ins. Corp. v. Mmahat, 97 B.R. 293, 296 (E.D.La.1988). . A defalcation has been defined by the Fifth Circuit as a willful neglect of duty, even if not accompanied by fraud or embezzlement. In re Bennett, 989 F.2d 779, 790 (5th Cir.1993) (citing Moreno v. Ashworth, 892 F.2d 417, 421 (5th Cir.1990)). . In re Luce, 960 F.2d 1277, 1285 (5th Cir.1992). . Klingman v. Levinson, 58 B.R. 831, 837 (Bankr.N.D.Ill.1986), aff'd, 831 F.2d 1292 (7th Cir.1987). In Klingman the bankruptcy court held that a creditor who prevailed under section 523(a)(4) could recover prepetition attorney’s fees awarded in state court stating that when a bankruptcy court determines that the underlying debt is nondischargeable, then attorney’s fees awarded by a state court based on state statutory or contractual grounds are also non-dischargeable. The Klingman court explained that the attorney’s fees are part of the state court judgment, to wit: \" ‘Ancillary obligations such as attorneys’ fees and interest may attach to the primary debt; consequently, their status depends on that of the primary debt.' ” Id. at 1296." }, { "docid": "10323916", "title": "", "text": "awarding attorney’s fees under California law. It also found that the attorney’s fees and costs were reasonable and that no allocation was necessary based on federal and state issues because “contractual liability for the underlying debt was conceded from the outset, 100 percent of the litigation effort is allocated to the defense of the § 523(a)(2)(A) count.” Memorandum on Defendant’s Motion for Award of Attorney’s Fees and Costs (Jun. 13, 2002), at 1. Redwood then timely appealed. II.ISSUE Whether the bankruptcy court abused its discretion in awarding attorney’s fees. III.STANDARD OF REVIEW We review the bankruptcy court’s award of attorney’s fees for an abuse of discretion or an erroneous application of the law. See Pham, 250 B.R. at 96 (citing Ford v. Baroff (In re Baroff), 105 F.3d 439, 441 (9th Cir.1997)). We review the bankruptcy court’s decision to apply § 523(a)(2)(A) to an award of attorney’s fees de novo. See Pham, 250 B.R. at 96 (citing Younie v. Gonya (In re Younie), 211 B.R. 367, 372 (9th Cir. BAP 1997)). IV.DISCUSSION The Bankruptcy Court Abused its Discretion in Awarding Attorney’s Fees. The bankruptcy court relied on Pham and granted the Motion because the attorney’s fee provisions in the Agreement and the Note were broad enough to encompass a § 523(a)(2) action. On appeal, Redwood contends that the bankruptcy court erred because Pham involved a limited issue of a creditor’s right to attorney’s fees under § 523(a)(2). Alternatively, Redwood contends that Pham inappropriately extended the holding in Cohen v. de la Cruz, 523 U.S. 213, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998). In Cohen, the Supreme Court upheld the bankruptcy court’s award of attorney’s fees in a § 523(a)(2) proceeding where the award was based on a state statute. See Cohen, 523 U.S. at 223, 118 S.Ct. 1212. There, the debtor-landlord charged his tenants rents in excess of a local ordinance. As a result, the local rent control administrator ordered the debtor to refund the rent overcharges. The debtor did not comply with the order and filed for a chapter 7. The tenants filed a complaint to determine the rent" }, { "docid": "13666318", "title": "", "text": "her expenditure of the funds, as required by the Power of Attorney. Additionally, the Power of Attorney specifically provided that the Debtor was entitled to be repaid for all reasonable costs incurred. See Exhibit A to Creditor’s Brief in Support of its Complaint at p. 11. Moreover, the subject amount was not paid to the Debtor as payment or compensation for her services as attorney-in-fact. Rather, the sum was for payment of her time and expense rendering the cleaning services. Therefore, the Court finds that the Debtor’s act of paying herself the sum of $18,000.00 for services rendered to sell the Robin Walk Property, in lieu of hiring another creditor to do the work, did not constitute defalcation for purposes of § 523(a)(4). C. Request for Attorney’s Fees Finally, the Court addresses the Creditor’s request for unspecified attorney’s fees and costs incurred in prosecuting this adversary proceeding. The Creditor failed to cite to any statutory or case authority that entitles it to such an award. Section 523 of the Bankruptcy Code does not provide the Creditor a basis for an award of attorney’s fees and costs for prosecution of this matter. Section 523(d) only provides for taxation of costs and fees in favor of a debtor who successfully defends against a § 523(a)(2) dischargeability determination. Accordingly, without an award of attorney’s fees under non-bankruptcy law, the fees incurred by the Creditor’s attorney cannot be awarded herein, let alone made non-dischargeable. See Kress v. Kusmierek (In re Kusmierek), 224 B.R. 651, 658 (Bankr.N.D.Ill.1998) (absent a state court award of attorney’s fees or the existence of a statute authorizing the same, court refused to determine that requested fees would be nondischargeable). Hence, the Court denies the Creditor’s request for attorney’s fees and costs. IV. CONCLUSION For the foregoing reasons, the Court finds that the debt owed by the Debtor to the Creditor is dischargeable. This Opinion constitutes the Court’s findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. A separate order shall be entered pursuant to Federal Rule of Bankruptcy Procedure 9021." } ]

[ { "docid": "12955973", "title": "", "text": "a crime of this magnitude. ‘When a reviewing court concludes that a district court based a departure on both valid and invalid factors, a remand is required unless it determines the district court would have imposed the same sentence absent reliance on the invalid factors.” Koon, 518 U.S. at 113, 116 S.Ct. 2035. The district court’s reasoning was insufficient to justify a departure that resulted in no sentence at all for a serious crime of violence. Accordingly, we vacate the sentence. III. We exercise our supervisory powers under 28 U.S.C. § 2106 and reassign this case to a different district court judge for re-sentencing. Absent allegations of bias, the factors this court considers in deciding whether “unusual circumstances” exist and remand to a different judge is appropriate are: (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. See Smith v. Mulvaney, 827 F.2d 558, 562-63 (9th Cir.1987). The first two factors are of equal importance, and a finding of “either one would support remand to a different judge.” State of California v. Montrose Chemical Corp. of California, 104 F.3d 1507, 1521 (9th Cir.1997). After a review of the record, we conclude that the district court would have substantial difficulty disregarding the view that a one-day sentence was sufficient for the assault with intent to commit first degree murder in this case. The district court has twice sentenced Working to one day for the assault with intent to commit first degree murder. We do not doubt that the district court judge did what he thought was right. However, statements made by the district court at the resen-tencing hearing have heightened our concern that the district court is unlikely to disregard improper factors when fashioning a sentence for Working. The" } ]

[ { "docid": "22150544", "title": "", "text": "amount due. The court awarded Davis prejudgment interest on an aggregate principal of $543,097.96. See C.R. 791. This amount represented the gross amount due ($796,301.27), less credits ($253,203.31). See C.R. 621 at 22. The court also awarded Davis & Cox prejudgment interest on an aggregate principal of $151,715.09. See C.R. 791. This amount represented the gross amount due ($699,-027.30), less credits for amounts received ($216,235.62) and for amounts used in defense of Davis in certain litigation for which Davis was reimbursed ($331,076.59). See C.R. 621 at 19-20. The district court erred in awarding 18% prejudgment and postjudgment interest, but correctly calculated the gross amounts subject to interest. G. Remand to a Different Judge. Summa argues that we should remand the case to a different judge. In the absence of proof of personal bias, we may remand to a new district court judge only under “unusual circumstances.” United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir.1979) (quoting United States v. Robin, 553 F.2d 8, 10 (2d Cir.1977) (en banc)). In making this determination, we may consider (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. United States v. Arnett, 628 F.2d at 1165 (quoting United States v. Robin, 553 F.2d at 10). The first two of these factors are of equal importance, and a finding of one of them could support a remand to a different judge. See United States v. Alverson, 666 F.2d 341, 349 (9th Cir.1982). Summa has not demonstrated personal bias or “unusual circumstances” to warrant our remand to another judge. We cannot reasonably expect Judge Real to have substantial difficulty in ridding himself of previously expressed views or findings determined to be erroneous. Summa argues that Judge Real was adamant in making erroneous rulings." }, { "docid": "22578670", "title": "", "text": "consider (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. Arnett, 628 F.2d at 1165 (quoting United States v. Robin, 553 F.2d at 10). The first two of these factors are of equal importance, and a finding of one of them would support a remand to a different judge. See United States v. Alverson, 666 F.2d 341, 349 (9th Cir.1982). A district judge’s adamance in making erroneous rulings may justify remand to a different judge. See United States v. Doe, 655 F.2d 920, 929 (9th Cir.1981). See also United States v. Larios, 640 F.2d 938, 943 (9th Cir.1981) (remand for resentencing before different judge where original judge had unreasonably refused to wait for transcript of former proceedings before sentencing and was adamant in his belief as to defendant’s culpability; he therefore could not reasonably be expected to ignore his conclusions and the appearance of fairness required reassignment); United States v. Ferguson, 624 F.2d 81 (9th Cir.1980) (remand to new judge where original judge created error by refusing to consider mitigating factors before sentencing, where refusal to consider those factors was inconsistent with the need to preserve the appearance of justice and where reassignment would mean little duplication of efforts); United States v. Arnett, 628 F.2d at 1165 (declining to remand to a new judge where no injustice was threatened and reassignment would have caused considerable waste of time and duplication of effort). There is no suggestion in any of the case law that the district court as an institution must first be given the opportunity to consider whether to reassign a case. If the request for reassignment after remand were made of the district judge by a party on bias grounds, the judge’s refusal would be directly reviewable" }, { "docid": "4539180", "title": "", "text": "care to follow required safety precautions. Restatement (Second) of Torts § 416. The district court’s finding that the Navy acted “reasonably” was clearly erroneous and is reversed. This matter must be remanded for phases two and three of the bench trial, “actual and proximate causation” and “damages,” respectively. C. Reassignment On Remand In the event that she obtains a reversal, Myers asserts that this matter should be remanded for further proceedings before a different judge, pursuant to 28 U.S.C. § 2106. The Navy did not address this issue in its briefing. We decline the invitation to reassign the case to a different judge on remand. The factors that we consider to determine whether reassignment is appropriate are the following: (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously [] expressed views or findings determined to be erroneous based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. Mendez v. Cnty. of San Bernardino, 540 F.3d 1109, 1133 (9th Cir.2008) (quoting United States v. Sears, Roebuck & Co. Inc., 785 F.2d 777, 779 (9th Cir.1986)). We may direct reassignment of the case, even if we do not question the impartiality of the judge, in light of unusual factors indicating that a reassignment is advisable to preserve the appearance of justice. Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 373 (9th Cir.2005) Here, there is no real reason to question the impartiality of the trial judge, notwithstanding what we have found were numerous errors in his disposition of the case. Nor are we convinced that the errors we find are such that the trial judge would have substantial difficulty in putting out of his mind his previous findings. We are troubled by the undue — and unexplained— three-year delay between the conclusion of the first phase of the bench trial and the issuance" }, { "docid": "22327230", "title": "", "text": "811, 817 (9th Cir.1991), superseded in part on other grounds, 18 U.S.C. § 3663, as recognized in United States v. Jackson, 982 F.2d 1279, 1282 n. 1 (9th Cir.1992). When there are no allegations of bias, we consider the following factors in deciding whether “unusual circumstances” exist such that remand to a different judge is appropriate: (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. The first two factors are of equal importance, and a finding of either one would support remand to a different judge. United States v. Working, 287 F.3d 801, 809 (9th Cir.2002) (citations and internal quotation marks omitted). The district court’s procedural errors in other cases do not demonstrate that in this particular case it will have “substantial difficulty in putting out of [its] ... mind previously-expressed views or findings determined [by us] to be erroneous.” See id. at 809-10. Moreover, Waknine’s contention that attorneys “cower” before Judge Real is not supported by the record in this case. We note that neither Waknine’s attorney nor the government’s attorney faltered in the least bit in their arguments or retreated from their positions at the sentencing and restitution hearings. We are confident that in future proceedings counsel will not hesitate to advocate before the district court. We reject Waknine’s request for a change of judge, and remand this case for further consideration and proceedings consistent with this opinion. CONVICTION AFFIRMED; SENTENCE VACATED; RESTITUTION ORDER VACATED; REMANDED. . The government could only estimate that the total amount loaned to Hadad fell somewhere between $250,000 and $595,000. . At the sentencing hearing, Waknine did not claim that the government breached the plea agreement. Thus, Waknine did not preserve this issue for appeal and we review the claim for" }, { "docid": "22327229", "title": "", "text": "Wak-nine, we cannot determine whether the district court abused its discretion in awarding restitution based on those costs under § 3663A. On remand, the district court may only award restitution of travel expenses and investigation costs, including attorneys’ fees, if the government provides sufficiently detailed evidence to demonstrate by a preponderance of the evidence that these costs were incurred by Hadad and Keuylian in aid of Waknine’s investigation or prosecution, and that such expenses and costs were reasonably necessary. IV Finally, complaining about the sentencing errors, Waknine requests that his case be remanded to a different judge. Waknine further alleges that “[t]here is a generalized pattern of cowering by attorneys who appear” before Judge Real and a general pattern of parties afraid to advocate in Judge Real’s courtroom. By contrast, Waknine does not allege that Judge Real exhibited any bias for or against either of the parties in this case. We stand by our general rule: “Absent unusual circumstances, resentencing is to be done by the original sentencing judge.” United States v. Sharp, 941 F.2d 811, 817 (9th Cir.1991), superseded in part on other grounds, 18 U.S.C. § 3663, as recognized in United States v. Jackson, 982 F.2d 1279, 1282 n. 1 (9th Cir.1992). When there are no allegations of bias, we consider the following factors in deciding whether “unusual circumstances” exist such that remand to a different judge is appropriate: (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. The first two factors are of equal importance, and a finding of either one would support remand to a different judge. United States v. Working, 287 F.3d 801, 809 (9th Cir.2002) (citations and internal quotation marks omitted). The district court’s procedural errors in other cases do not demonstrate" }, { "docid": "22891384", "title": "", "text": "the district court should exercise jurisdiction “if this course is more efficient; otherwise, not.” Id. Avon had ample opportunity to demonstrate the necessity of, or even any factor weighing in favor of, deferring the action. Instead, it has urged upon this court borderline frivolous arguments about Rule 408 and jurisdiction. Under the circumstances, we see no reason not to order the district court to entertain this action. 2. Remand to Different Judge DermaNew has requested that, upon remand, the case be assigned to a different judge. See 28 U.S.C. § 2106. We grant that request. [14] Under § 2106, remand to a different district is appropriate if there is a demonstration of personal bias or unusual circumstances. In determining whether unusual circumstances exist the court considers: (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. The first two factors are considered to be of equal importance; moreover, a finding of either one would support remand to a different judge. United Nat’l Ins. Co. v. R & D Latex Corp., 141 F.3d 916, 920 (9th Cir.1998) (quoting California v. Montrose Chem. Corp., 104 F.3d 1507, 1521 (9th Cir.1997)). We are persuaded by our review of the record that the assigned district court judge “cannot reasonably be expected upon remand to disregard his previously expressed views in this matter.” Id. at 919-20. In this case, the district judge granted Avon’s motion to dismiss without allowing DermaNew’s counsel the opportunity to respond, even briefly, to Avon’s Rule 408 argument. The judge reasoned that the complaint was “brought for an improper motive” and that “it should be back where it belongs.” As we have explained, we have carefully reviewed the record and can find no evidence of any such “improper motive”" }, { "docid": "23350351", "title": "", "text": "the Supreme Court has cau tioned that “[bjecause inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion.” Roadway Express, 447 U.S. at 764,100 S.Ct. 2455. “Sanctions not only may have a severe effect on the individual attorney sanctioned,” potentially damaging the attorney’s career, reputation and livelihood, but they “also may deter future parties from pursuing colorable claims.” Primus, 115 F.3d at 650. Because the district court did not make a bad faith finding before imposing sanctions, and the record does not support such a finding, we must reverse and vacate the sanction order. VI. Request for Reassignment on Remand Lastly, Mendez asks that we reassign this case to a different judge on remand, a remedy she concedes is warranted only under “unusual circumstances.” United States v. Sears, Roebuck, & Co., Inc., 785 F.2d 777, 780 (9th Cir.1986) (per curiam). We have authority to reassign as an exercise of our inherent authority and authority under statute, and may reassign even in the absence of any “actual bias on the part of the judge” who first heard the case. See id. at 779-80. The factors we consider in reassigning a case are (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously[] expressed views or findings determined to be erroneous based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. Id. at 779 (internal quotation marks omitted). None of these factors justifies reassignment here. As is indicated by these three consolidated cases, Mendez disagreed with a number of the district court’s rulings, but this is hardly uncommon over the course of lengthy litigation and trial. Because there are no unusual circumstances warranting reassignment, we see no reason to remand to a different judge. CONCLUSION Mendez’s appeal from final. judgment, case number 07-56029,- is' AFFIRMED. Mendez’s appeal from the order denying her attorney’s" }, { "docid": "22150545", "title": "", "text": "consider (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. United States v. Arnett, 628 F.2d at 1165 (quoting United States v. Robin, 553 F.2d at 10). The first two of these factors are of equal importance, and a finding of one of them could support a remand to a different judge. See United States v. Alverson, 666 F.2d 341, 349 (9th Cir.1982). Summa has not demonstrated personal bias or “unusual circumstances” to warrant our remand to another judge. We cannot reasonably expect Judge Real to have substantial difficulty in ridding himself of previously expressed views or findings determined to be erroneous. Summa argues that Judge Real was adamant in making erroneous rulings. A district court judge’s adamance in making an erroneous ruling may justify remanding the case to a different judge. See United States v. Larios, 640 F.2d 938, 943 (9th Cir.1981); United States v. Doe, 655 F.2d 920, 929 (9th Cir.1980); United States v. Ferguson, 624 F.2d 81, 83 (9th Cir.1980). Summa, however, has not shown that Judge Real’s erroneous rulings would affect his ability to conform to this panel’s decision or that his rulings stemmed from a personal bias against Summa. It has not shown that Judge Real made those rulings knowing that they were erroneous. The bare fact that Judge Real has committed errors does not support our deviation from the “usual remedy” of remanding the case to the original trial judge. See United States v. Arnett, 628 F.2d at 1165. The appearance of justice will not be severely impaired if we do not remand to another judge. Judge Real’s erroneous rulings did not evidence a steadfast refusal to consider Summa’s interests. In fact, the Davis Parties were on the losing end of many" }, { "docid": "13324829", "title": "", "text": "grounds for departure under the Guidelines, and then sentenced Atondo-Santos to the same sentence of 66 months, ignoring our reminder that “Koon ... ‘did not purport to create a new basis for departure,’ but merely ‘clarified that courts are not limited in the factors that may be considered for sentencing purposes.’ ” Atondo-Santos, 71 FedAppx. at 744 (quoting United States v. Malley, 307 F.3d 1032, 1035 (9th Cir.2002)). The United States urges us to apply de novo, and not abuse of discretion, review of the re-sentencing decision because of the Prosecutorial Remedies and Other Tools To End the Exploitation of Children Today Act of 2003 (“PROTECT Act”). As we stated in Atondo-Santos, 71 FedAppx. at 743 n. 1, “the record is deficient as it currently stands” under either the more deferential abuse of discretion standard or under de novo review. Because the district court abused its discretion by failing to justify its downward departures, we need not reach the issue of whether the PROTECT Act applies to this case. See United States v. Guerrero, 333 F.3d 1078, 1080 n. 2 (9th Cir.2003). The United States argues that, if this Court should decide to remand for a third time, we should remand to a different district court judge pursuant to our supervisory powers under 28 U.S.C. § 2106. We agree. As we explained in United States v. Working: Absent allegations of bias, the factors this court considers in deciding whether “unusual circumstances” exist and remand to a different judge is appropriate are: (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. 287 F.3d 801, 809 (9th Cir.2002). Because factors one and two are of equal importance, a finding of either factor supports remand to a different district court judge." }, { "docid": "12761500", "title": "", "text": "Sixth Amendment violation “should be appropriate to the violation.” Id. at 50, 104 S.Ct. 2210. In this case, the appropriate remedy is clear: On remand, the district court should protect Rivera’s Sixth Amendment rights by allowing his family members to attend the new sentencing proceedings. See id. at 50, 104 S.Ct. 2210 (remanding for “a new, public suppression hearing”). “Although we generally remand for resentencing to the original district judge, we remand to a different judge if there are unusual circumstances.” United States v. Quach, 302 F.3d 1096, 1103 (9th Cir.2002) (citation and internal quotation marks omitted). To determine whether reassignment is appropriate, we consider: (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving appearance of fairness. Id. (citation omitted). “The first two of these factors are of equal importance, and a finding of one of them would support a remand to a different judge.” Id. (citation and internal quotation marks omitted). We have no reason to question the district judge’s ability to proceed impartially. Nonetheless, we conclude that reassignment is advisable to preserve the appearance of justice. The district judge in this case expressed strong views about Rivera’s alleged “manipulative” use of his family members during proceedings. Indeed, the judge continued the August 24 proceedings precisely because he was concerned that he might take his frustrations out on Rivera. In view of the district judge’s comments, the interest in preserving the appearance of justice outweighs any duplication of effort. See United States v. Reyes, 313 F.3d 1152, 1160 (9th Cir.2002). We accordingly direct that the case be reassigned to a different judge for re-sentencing. Ill For the foregoing reasons, we VACATE Rivera’s sentence and REMAND for new sentencing proceedings in accordance with this opinion. . We have recognized an \"illegal" }, { "docid": "23408677", "title": "", "text": "ex parte and in camera submission of the declaration leaves the appearance that it might have had an impact on the sentence, and because its disclosure would reveal sensitive material, we hold that on remand, the declaration should not be part of the record unless it is served on the defense. That leads us to the question of whether it is necessary to order resentencing before a different district judge, who has not reviewed the declaration. D. Remand to a different district judge Although resentencing would normally be performed by the same district judge who originally sentenced the defendant, in “unusual circumstances” resentencing before a different judge may be necessary. ... [W]e [have] articulated three factors to consider in deciding whether resentencing by a new judge is appropriate: (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. Alverson, 666 F.2d at 349 (citations and quotations omitted); United States v. Chatlin, 51 F.3d 869, 875 (9th Cir.1995). “The first two of these factors are of equal importance, and a finding of one of them would support a remand to a different judge.” United States v. Hanna, 49 F.3d 572, 578 (9th Cir.1995) (quotations omitted). The factors are to be considered in the absence of personal bias. United States v. Huckins, 53 F.3d 276, 280 (9th Cir.1995). The circumstances in this case are unusual. The judge has reviewed in camera documents which may be relevant to sentencing arguments. Ex parte communications with a bearing on the sentence are on the whole improper. Alverson, 666 F.2d at 348-49. Although the government has offered to disclose the debriefing report to Mikaelian on remand, subject to a protective order, it adamantly opposes disclosure of the paralegal declaration, preferring reassignment. We choose to" }, { "docid": "8226364", "title": "", "text": "conclusion “that this case does not fall within the ‘heartland’ of cases to which the guidelines are most applicable.” Paul, 239 Fed. App’x at 354. We also grant the request to remand this matter to a different district judge. Remand to a new judge is reserved for “unusual circumstances.” United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir.1979). To determine whether “unusual circumstances” exist, the court considers: (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. Smith v. Mulvaney, 827 F.2d 558, 562-63 (9th Cir.1987). In this situation, we believe that the appearance of justice will be best preserved by remanding to a different judge. While the district judge on remand explained some of the reasoning behind his resentencing of Paul, he clearly did not put out of his mind his previously expressed view that the Appellant’s abuse of trust trumped all other mitigating factors combined, as shown by the fact that he again sentenced Paul to a prison sentence at the top of the Guidelines range. We have little faith that Judge Haddon would be able to do so on remand this time either. We conclude that reassignment will best preserve the appearance of justice in this case. We do not believe that resentencing by another judge would entail waste and duplication out of proportion to the gain achieved in preserving an appearance of fairness, as a new sentencing hearing will be required whether the case is reassigned or remains with Judge Haddon. The sentence is vacated, and the case is remanded to the district court for resentencing by a new judge. SENTENCE VACATED; REMANDED FOR RESENTENCING BY A NEW JUDGE. . If the United States had believed, as it claimed in its argument to" }, { "docid": "23144590", "title": "", "text": "their opening brief, Plaintiffs do not raise the issue that the district court erroneously dismissed Plaintiffs’ spoliation claims, and only briefly assail the district court’s ruling in its reply brief. As such, Plaintiffs have waived this claim. VII Plaintiffs request that this court exercise its supervisory power under 28 U.S.C. § 2106 to reassign this case to a different district court judge on remand. In the ordinary course, Absent allegations of bias, the factors this court considers in deciding whether “unusual circumstances” exist and remand to a different judge is appropriate are: (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. United States v. Atondo-Santos, 385 F.3d 1199, 1201 (9th Cir.2004) (quoting United States v. Working, 287 F.3d 801, 809 (9th Cir.2002)). A finding of either the first or second factor supports remanding to a different district court judge. Id. Although we do.not question the impartiality of the visiting district judge, there are some unusual factors that indicate to us that a reassignment is advisable to preserve the appearance of justice. The visiting district judge adopted the 64 page proposed summary judgment order tendered by DuPont with only a few minor changes. Those changes consisted of additional language complaining about the volume of material involved. The judge then directed that the ghostwritten order be published. Although adopting findings or an order drafted by the parties is not prohibited, we have criticized district courts that “engaged in the ‘regrettable practice’ of adopting the findings drafted by the prevailing party wholesale.” Maljack Productions, Inc. v. Good-Times Home Video Corp., 81 F.3d 881, 890 (9th Cir.1996) (quoting Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378, 1385 n. 3 (9th Cir.1984)). In addition, the visiting district judge took the highly unusual" }, { "docid": "13324830", "title": "", "text": "F.3d 1078, 1080 n. 2 (9th Cir.2003). The United States argues that, if this Court should decide to remand for a third time, we should remand to a different district court judge pursuant to our supervisory powers under 28 U.S.C. § 2106. We agree. As we explained in United States v. Working: Absent allegations of bias, the factors this court considers in deciding whether “unusual circumstances” exist and remand to a different judge is appropriate are: (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. 287 F.3d 801, 809 (9th Cir.2002). Because factors one and two are of equal importance, a finding of either factor supports remand to a different district court judge. See id.; State of California v. Montrose Chemical Corp. of California, 104 F.3d 1507, 1521 (9th Cir.1997). In light of the history of this case and our previous remands, it is clear that the district court would have substantial difficulty in putting out of its mind its repeated, previously-expressed views that a 66 month sentence is appropriate in this case. REVERSED and REMANDED with direction that the case be reassigned to a different district court judge. . For example, the district court cited Aton-do-Santos's lack of a prior criminal record. Although the defendant-appellee argues that his lack of a criminal record places him out side the heartland of the offense under Koon, that same case clearly states that a downward departure based on status as a first-time offender is not warranted because the Guidelines already take this factor into account. See Koon, 518 U.S. at 111, 116 S.Ct. 2035. Similarly, drug and alcohol dependence cannot be a basis for departure under U.S.S.G. § 5H1.4, yet the district court repeatedly cited Atondo-Santos’s addiction as a basis" }, { "docid": "6282194", "title": "", "text": "personal bias of the judge is not alleged, Robin directs us to consider the following factors: (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. Id. at 10. Reassignment will not usually be warranted merely because “a sentencing judge has been shown to have held erroneous views,” United States v. Bradley, 812 F.2d 774, 782 n. 9 (2d Cir.1987). Moreover, a “misapprehension of the law is not the sort of previously-expressed view that one would have difficulty putting out of one’s mind, once it was corrected.” United States v. Gonzalez, 192 F.3d 350, 356 (2d Cir.1999) (per curiam) (internal quotation marks and alteration omitted). Remand to a different judge is not warranted here. Appellant has not alleged or shown that Judge Owen was biased against him but, rather, argues that the Robin factors militate in favor of reassignment. They do not. The only error made by the district court was a legal one in determining appellant’s original CHC, which after all was suggested in the plea agreement; this type of previously expressed view is not difficult to put out of one’s mind. Appellant argues that the appearance of fairness requires reassignment because Judge Owen committed errors in the case and because some of Judge Owen’s orders in the SEC Action were reversed, thus making him appear partial. Appellant also claims that since Judge Owen filed the criminal contempt charge and presided over it, his impartiality is in question. Both arguments are entirely meritless. Given the twenty year length of this proceeding, our occasional disagreement with some of Judge Owens’ rulings is absolutely no basis for remand to a different judge. Moreover, the United States Code itself contemplates that a Judge will preside over a criminal contempt case in" }, { "docid": "23334554", "title": "", "text": "v. Sears, Roebuck & Co., 785 F.2d 777, 779-80 (9th Cir.1986)). Nothing in the record reflects such personal bias. Second, in the absence of a showing of personal bias, we look to whether “unusual circumstances” warrant reassignment. Id. (citing Sears, Roebuck, 785 F.2d at 780). This inquiry focuses on three factors: “(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.” Id. at 1118-19. Only one of the first two factors must be present to support reassignment. See United States v. Mikaelian, 168 F.3d 380, 388 (9th Cir.1999). The district judge has read the presentenee report and has expressed strong views on its contents. Whether or not he would reasonably be expected to put out of his mind the information previously disclosed or the conclusions previously drawn, and without ourselves reaching any determination as to his ability to proceed impartially, to preserve the appearance of justice, and consistent with the purposes of Rule 32, we conclude reassignment is appropriate. See Gregg v. United States, 394 U.S. 489, 492, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969) (noting that to allow submission of a presentence report “to the judge who will ... preside over a jury trial would seriously contravene ... [Rule 32’s] purpose of preventing possible prejudice from premature submission of the presen-tence report”). Given the preliminary nature of the plea proceedings, the minimal potential for waste or duplication of judicial resources is outweighed by the need to proceed in a manner that preserves the appearance of justice. Therefore, on remand, the case shall be reassigned to a different district judge within the Western District of Washington. V. Conclusion. We GRANT the petition for mandamus and REMAND to the Chief Judge of the Western District of Washington for further" }, { "docid": "23398669", "title": "", "text": "enhancement for abuse of Peyton’s position of trust. VI. Reassignment Peyton requests that this case be reassigned upon remand. A remand to a different district judge is appropriate if there is “a demonstration of personal bias or in unusual circumstances.” Smith v. Mulvaney, 827 F.2d 558, 562 (9th Cir.1987) (internal quotations and citations omitted). To determine whether unusual circumstances are present, we consider the following factors: (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. Id. at 562-63 (citation omitted). A finding of either one of the first two factors supports remanding the resentencing to a different judge. California v. Montrose Chem. Corp. of California, 104 F.3d 1507, 1521 (9th Cir.1997). The finding of vindictiveness does not, in itself, require us to remand to a different judge where there is no evidence of personal bias or a showing that the judge “would not be able to put out of his mind his previously expressed views or that he would ignore the mandate of this court on remand.” United States v. Rapal, 146 F.3d 661, 666 (9th Cir.1998) (citation omitted) (holding that a judge acted vindictively by imposing a harsher sentence, but finding no evidence in the record of any bias towards the defendant). Because we find no such indication here, we decline to reassign this case to a different district judge. We are confident he will conscientiously discharge his sentencing duties in conformance with our mandate. VII. Conclusion We affirm the district court’s computation of the accountable loss under relevant conduct and its application of the two-level enhancement for abuse of a position of trust. We reverse the enhancement for obstruction of justice and vacate only that part of the sentence imposed. Accordingly, we remand for resentencing consistent" }, { "docid": "23375528", "title": "", "text": "disinterested.” Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980). Thus, for instance, “[h]e may analyze and dissect the evidence, but he may not either distort it or add to it.” Quercia, 289 U.S. at 470, 53 S.Ct. 698. Alfaro fails to show that Judge Thompson was partial or interested. The judge allowed cross examination of all witnesses. Although Alfaro decries the judge for fínd- ing the witnesses credible, he does not challenge their credibility himself. Nor does Alfaro allege that the judge distorted or added to the evidence. Importantly, Alfaro does not challenge the conversion ratios set forth by the DEA chemist or any other substantive aspect of the witnesses’ testimony. In short, Alfaro does not demonstrate that the judge abandoned the “requirement of neutrality in adjudicative proceedings.” Marshall, 446 U.S. at 242, 100 S.Ct. 1610. C. Remand to Judge Thompson Is Appropriate. We decline to assign this case to a different judge for resentencing as Alfaro requests. When, as here, there are no allegations of bias, we consider: (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. The first two factors are of equal importance, and a finding of either one would support remand to a different judge. Working, 287 F.3d at 809 (internal quotation marks and citations omitted). The record does not indicate that Judge Thompson would have “substantial difficulty” in resentencing Alfaro consistent with this opinion. That Judge Thompson called and examined witnesses at the sentencing hearing provides no reason by itself to believe that he “is unlikely to disregard improper factors when fashioning a sentence for [Alfaro]” on remand. Id. at 810. Nor is reassignment necessary “to preserve the appearance of justice.” The judge did not act," }, { "docid": "22327231", "title": "", "text": "that in this particular case it will have “substantial difficulty in putting out of [its] ... mind previously-expressed views or findings determined [by us] to be erroneous.” See id. at 809-10. Moreover, Waknine’s contention that attorneys “cower” before Judge Real is not supported by the record in this case. We note that neither Waknine’s attorney nor the government’s attorney faltered in the least bit in their arguments or retreated from their positions at the sentencing and restitution hearings. We are confident that in future proceedings counsel will not hesitate to advocate before the district court. We reject Waknine’s request for a change of judge, and remand this case for further consideration and proceedings consistent with this opinion. CONVICTION AFFIRMED; SENTENCE VACATED; RESTITUTION ORDER VACATED; REMANDED. . The government could only estimate that the total amount loaned to Hadad fell somewhere between $250,000 and $595,000. . At the sentencing hearing, Waknine did not claim that the government breached the plea agreement. Thus, Waknine did not preserve this issue for appeal and we review the claim for plain error. United States v. Cannel, 517 F.3d 1172, 1175-76 (9th Cir.2008). . To the extent that Waknine is contending that the district court violated Rule 32(i)(3)(B) of the Federal Rules of Criminal Procedure, we conclude that the district court did not plainly err by resolving Waknine’s factual objection to his criminal history category after the imposition of sentence. Given that the district court resolved this factual dispute in Waknine's favor (by applying a criminal history category I instead of criminal history category II), any error did not affect Waknine’s substantial rights. See Ameline, 409 F.3d at 1078. . Under our precedent in United States v. Knows His Gun, 438 F.3d 913 (9th Cir.2006), cert. denied, 547 U.S. 1214, 126 S.Ct. 2913, 165 L.Ed.2d 931 (2006), where a defendant does not object at sentencing to the district court’s failure to sufficiently address and apply the § 3553(a) factors, we review such a claim on appeal for plain error. Id. at 918. . As we discussed in part III.A, the district court clearly erred in calculating" }, { "docid": "22109944", "title": "", "text": "Cir.1986). In determining whether reassignment is appropriate, we consider three factors: (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.. Id. at 780 (quoting United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir.1979)). In the present case, the plaintiffs have not shown a need for reassignment, as defined under the first two factors, that would justify the inconvenience of reassignment, as required under the third factor. First, the plaintiffs argue that the district court on remand may have “substantial difficulty in putting out of his or her mind” the erroneous finding of judge-shopping and the erroneous view that plaintiffs’ counsel could be disciplined if he attempted further judge-shopping in the future. We have already determined that the district court’s finding of judge-shopping is not clearly erroneous. Moreover, the district court was correct in asserting that judge-shopping may be grounds for attorney discipline. See Standing Committee on Discipline v. Yagman, 55 F.3d 1430, 1443 (9th Cir.1995) (“Judge-shopping doubtless disrupts the proper functioning of the judicial system and may be disciplined.”). Accordingly, the first factor does not support reassignment. Second, the plaintiffs argue that the manner in which the district court dismissed the plaintiffs’ actions necessitates reassignment “to preserve the appearance of justice.” According to the plaintiffs, the brevity of the October 30 hearing shows that the dismissals were effected with undue haste. But the length of the hearing is not dispositive. Despite the swiftness of the ruling itself, nothing in the record suggests that the district court failed to review carefully the record of both actions prior to the hearing. Thus, the second factor does not support reassignment. Third, because the Hernandez action was dismissed at an early stage in the proceedings, reassignment to a different judge on" } ]

[ { "docid": "23323848", "title": "", "text": "indicates that the AU took the next necessary step of requiring the Secretary to show Simonson has the residual functional capacity (RFC) to do light or sedentary jobs. To the contrary, the ALJ clearly placed the burden on Simonson to show he could not do these lighter categories of work. To meet this burden, the Secretary must show there are jobs available that realistically suit Simonson’s qualifications and mental and physical capabilities. Cole v. Harris, 641 F.2d 613, 614 (8th Cir.1981). An initial step toward meeting this burden is proving Simonson’s current physical capacity for work, or his RFC. See McCoy v. Schweiker, 683 F.2d 1138, 1146 (8th Cir. 1982). “Adequate proof cannot be based on mere theoretical ability to perform some kind of work.” Cole v. Harris, supra, 641 F.2d at 614 (citation omitted). Thus, the Secretary must offer substantial evidence of Simonson’s actual ability to work before job availability in the economy becomes relevant. The Medical-Vocational Guidelines can provide a framework to help determine whether Simonson has the RFC to perform certain types of work. The ALJ should not, however, apply these criteria mechanically, but should keep in mind that Simon-son must be able to “perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.” McCoy v. Schweiker, supra, 683 F.2d at 1147 (citation omitted). At oral argument, counsel for the Secretary urged us to find substantial evidence in the record to support the ALJ’s finding that Simonson has the RFC to perform light and sedentary work even though the ALJ did not explicitly shift the burden to the Secretary to prove this fact. In reviewing the evidence, we must take into account whatever in the record fairly detracts from its weight. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). We find the evidence insufficient to support the ALJ’s decision in this case primarily because the ALJ improperly disregarded Simonson’s subjective reports of pain in assessing his disability. Our cases clearly hold that" } ]

[ { "docid": "23034046", "title": "", "text": "Moreover, every physician involved with his case has diagnosed neuralgia. Thus, Jelinek’s complaints of pain cannot be dismissed as incredible. The issue remains, however, whether Jelinek can perform any substantial gainful activity notwithstanding his pain. Here, we conclude that there is substantial evidence to support the Secretary’s decision that Jelinek’s pain does not prohibit him from engaging in light work. While Dr. Martins’ report would support a finding that Jelinek’s pain is disabling, the reports of Doctors Bergom and Anderson clearly support the Secretary’s view. Given this conflict in the evidence, it was permissible for the Secretary to find that Jelinek’s pain does not prohibit him from performing light work — notwithstanding other factors such as his work history and efforts to seek medical treatment for his pain. Once Jelinek’s capabilities were established, it remained for the Secretary to demonstrate that there are jobs available in the national economy that realistically suit Jelinek’s qualifications and capabilities. O’Leary v. Schweiker, 710 F.2d 1334, 1338 (8th Cir.1983). In certain cases, the Secretary may meet this burden through use of the Medical-Vocational Guidelines, or “grid,” in the Appendix, 20 C.F.R. Part 404, Subpart P, Appendix 2 (1984). Jelinek argues that the Secretary erred by utilizing the Medical-Vocational Guidelines in this case, and in failing to call a vocational expert to address whether there is work in the national economy which Jelinek can perform. Our Court has consistently held that if a claimant has a nonexertional impairment such as pain, “the Guidelines and grid are not controlling and cannot be used to direct a conclusion of disabled without regard to other evidence, such as vocational testimony.” McCoy v. Schweiker, 683 F.2d 1138, 1148 (8th Cir.1982). Accord: Parsons v. Heckler, 739 F.2d 1334, 1339 (8th Cir.1984); O’Leary v. Schweiker, 710 F.2d at 1339; Nicks v. Schweiker, 696 F.2d 633, 636 (8th Cir.1983). See also 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.-00(e)(1). When claimants suffer a nonexer-tional impairment, their characteristics do not identically match those set forth in the guidelines and vocational expert testimony is required for the Secretary to determine whether there" }, { "docid": "6278392", "title": "", "text": "a residual functional capacity for other work and that other work exists. The Court also agreed that this rule must be recognized and used “explicitly”. Jelinek, 764 F.2d at 509. Jelinek contended that there was not substantial evidence to support the finding he had the residual functional capacity to do light work. Id. Jelinek argued the Secretary had failed to give adequate consideration to his complaints of pain vis-avis amendments to the Social Security Act found at 42 U.S.C. § 423(d)(5) and Polaski v. Heckler, 739 F.2d 1320 (8th Cir.1984). The Court found that the ALJ’s residual functional capacity finding was supported by the medical evidence. Jelinek, 764 F.2d at 511. The case was remanded, however, because the Secretary had failed to meet the second prong of the burden of proof—the duty to establish the existence of jobs in the national economy. Id. In Holland v. Heckler, 768 F.2d 277, 280 (8th Cir.1985), the Court wrote: A. Burden of Proof. The evidence is clear that Holland could not return to her previous work, and thus, the ALJ’s conclusion to this effect was correct. Consequently, the burden of proof shifted to the Secretary to show there is other work in the national economy that Holland could perform. Nunn v. Heckler, 732 F.2d 645, 649 (8th Cir.1984); Jackson v. Schweiker, 696 F.2d 630, 631 n. 1 (8th Cir.1983); Gilliam v. Califano, 620 F.2d 691, 693 (8th Cir.1980). The Secretary has the burden of establishing a claimant’s residual functional capacity by substantial evidence. McDonald v. Schweiker, 698 F.2d 361, 364 (8th Cir. 1983). The Secretary failed to show that Holland was capable of performing sedentary work as defined in 20 C.F.R. § 404.1567(a). [FN1] The Secretary, in fact, offered no evidence of Holland’s abilities, nor was a vocational expert called to testify.[FN2] Because the ALJ failed to shift the burden to the Secretary, we find this to be reversible error. FN1. Sedentary work is defined at 20 C.F.R. § 404.1567(a) as: (a) Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like" }, { "docid": "7246676", "title": "", "text": "509. In our prior opinion we found that there was “substantial evidence to support the Secretary’s decision that Jelinek’s pain does not prohibit him from engaging in light work.” Jelinek v. Heckler, 764 F.2d at 511. However, we found Jelinek suffered from non-exertional impairment and therefore the Secretary erred in using the vocational guidelines to determine whether Jelinek could perform work in the national economy. Id. We held that under such circumstances it was incumbent upon the Secretary to call a vocational expert to address whether Jeli-nek could perform work in the national economy. Id. On remand, the AU reasoned that it was the law of the case that the claimant could do light work despite his pain. On this basis, the AU held the only remaining issue was what jobs Jelinek could perform notwithstanding his pain. Therefore the AU rejected the claimant’s limitations and impairment, and the tests that the claimant’s vocational expert relied upon. The AU clearly misconstrued our determination, as pointed out by both the district court and the magistrate. As the district court found: “It would be nonsensical for the Eighth Circuit to make an absolute finding that the [claimant] was capable of doing light sedentary work,” Jelinek v. Bowen, No. 6-82CIV 998, slip op. at 2 (D.Minn. Jan. 20, 1988) (order granting summary judgment), and then remand the case to see if he could do light work. As the district court makes clear “[t]he vocational expert must [still] be able to find the [claimant’s] pain totally disabling, if the pain is indeed disabling.” Id. Our prior acknowledgement that claimant may do light work does not rule out a finding that claimant is disabled to the extent that he cannot undertake substantial gainful activity. The issue on remand for the vocational expert to determine in light of the claimant’s pain was whether he was so impaired that he could not perform jobs in the national economy. For a vocational expert to make such a determination, the factual disability cannot be ignored; the claimant’s vocational tests and his various functional limitations must be evaluated. Gavin v. Heckler," }, { "docid": "7246678", "title": "", "text": "811 F.2d at 1198 n. 3; Tucker v. Heckler, 776 F.2d 793, 795-96 (8th Cir.1985). The basic purpose of vocational expert testimony is to determine whether jobs exist for someone with claimant’s precise disabilities. Zachary v. Bowen, No. 88-1164, slip op. at 3 (8th Cir. Jan. 26, 1989). [873 F.2d 1446 (table)] If this were not true, there would have been no necessity for the remand. If we accept the fact of our earlier holding that the claimant could do light, sedentary work as determinative of the case, then the grid would be conclusive as well. However, because the claimant’s RFC is impaired by pain, the grid is not determinative and the vocational expert must determine based on the factual record of the pain-impaired RFC whether claimant can carry on substantial gainful activity. See Gavin v. Heckler, 811 F.2d at 1198 (8th Cir.1987). As this court stated “[t]he issue remains, however, whether Jelinek can perform any substantial gainful activity notwithstanding his pain.” Jelinek v. Heckler, 764 F.2d at 511. Thus, it is clear the AU, as the district court ruled, misconstrued our prior opinion. Nevertheless, the district court found the AU’s legal error was not fatally defective. The district court then ruled, based on substantial evidence on the record as a whole, there was still sufficient proof to uphold the AU’s finding. This over looks several factors in the AU’s analysis and handling of the case. First, the ALJ committed legal error by totally ignoring the claimant’s vocational expert’s findings and analysis. Second, although the government vocational consultant’s opinion is to be weighed, the government consultant’s testimony when considering the record as a whole demonstrates evidentiary deficiency. Third, the AU injected his own hypothetical question which failed to accurately reflect the factual record. Analysis of this record does not simply provide a conflict of opinion between two vocational experts. If it did, we would uphold the ALJ’s finding. Our discussion begins with the comparative background and familiarity with the claimant of the two vocational experts. Claimant’s expert witness was a vocational expert from the Sister Kenney Institute in Minnesota. Her" }, { "docid": "23034049", "title": "", "text": "and use this rule of the burden of proof, and that failure to do so will result in the presumption that the ALJ has incorrectly placed the burden on the claimant. See, e.g., Wolfe v. Heckler, 741 F.2d 1084, 1085 (8th Cir.1984); Parsons v. Heckler, 739 F.2d 1334, 1339-40 (8th Cir.1984); Simonson v. Schweiker, 699 F.2d 426, 428 (8th Cir. 1983). In this case, however, Jelinek did not raise this issue in his brief, nor did he raise it below, and consequently failed to present the issue properly for review under Fed.R.App.P. 28(a). Because we find a remand necessary on other grounds, however, the Secretary shall instruct the ALJ to recognize and use the rule explicitly. . Although Dr. Anderson also \"wonderfed] about a psychological disability,\" Jelinek has not raised this issue, and we do not address it. FAGG, Circuit Judge, dissenting. I agree with the court that the record contains substantial evidence to support the ALJ’s determination that Jelinek has the capacity to engage in light work. However, I dissent from the court’s order of remand because I believe the AU also properly found that Jelinek’s complaints of disabling pain are not fully credible and that his ability to perform light work is unimpaired by pain. Accordingly, the AU committed no error by applying the grid and finding Jelinek not disabled. The AU gave specific reasons for rejecting Jelinek’s subjective complaints. First, the AU considered the objective medical evidence, some of which indicated that Jeli-nek’s physical condition could not reasonably be expected to produce the degree of pain claimed by Jelinek. Second, the AU considered Jelinek’s extensive range of dai ly activities: among other things, he drives an automobile without much difficulty; he can walk a mile, carry groceries, tend a garden, and move bales of hay for his sheep; he operates a tractor for mowing and snow removal on his ten acre homestead — all of which demonstrate physical strength, endurance, and tolerance for the demands of light work. The backdrop of other evidence also supports the ALJ’s determination. Jelinek confided to one rehabilitation specialist that he has" }, { "docid": "11646067", "title": "", "text": "substantial evidence. The appropriate test to determine whether a claimant who has a severe mental impairment but not a listed impairment is disabled by the mental impairment is “ ‘whether the mental impairment is of such severity that plaintiff cannot, or could not on his last eligibility date, engage in any substantial gainful employment.’ ” Gavin v. Heckler, 811 F.2d at 1198 (quoting Dunlap v. Harris, 649 F.2d at 638-39). Although the ALJ concluded that Wheeler could perform her past relevant work as a housekeeper, we believe that that conclusion is not supported by substantial evidence on the record as a whole. See Gavin, 811 F.2d at 1199. To the contrary, we conclude that Wheeler has satisfied her burden of showing an inability to return to her past relevant work. The burden therefore shifts to the Secretary to show other jobs in the national economy that Wheeler is capable of performing. See Parsons v. Heckler, 739 F.2d 1334, 1339 (8th Cir.1984). Because here the AU terminated his analysis without requiring the Secretary to make such a showing, it is necessary that we remand this case for further administrative proceedings. Since Wheeler suffers from a severe mental impairment, the Secretary must use vocational expert testimony or other similar evidence in order to meet his burden of showing the existence of jobs in the national economy that the claimant is capable of performing. See Gavin, 811 F.2d at 1198 n. 3; Parsons, 739 F.2d at 1339. Cf. Thompson v. Bowen, 850 F.2d 346, 349-50 (8th Cir.1988) (where the non-exertional impairment is pain, AU may use Guidelines if the pain “does not diminish the claimant’s residual functional capacity to perform the full range of activities listed in the Guidelines.”). We reject the Secretary’s suggestion that the use of the Guidelines approved in Thompson is appropriate in the case of a claimant with a severe mental impairment. Thompson involved a claimant who allegedly suffered from disabling pain. Our decision in that case reflects the fact that a claimant with a sound mind can work despite pain (millions of people do every day), unless the" }, { "docid": "6278391", "title": "", "text": "that failure to shift the burden of proof is reversible error and that where the Secretary does not explicitly recognize that the burden has shifted, the court will not assume that the burden was in fact shifted. The court went on: “Further, the Secretary must show not only that a claimant has the residual functional capacity to do other work, but that there are also jobs available in the national economy which realistically suit claimant’s qualifications and capabilities.” Fazio, 760 F.2d at 189. In Bogard v. Heckler, 763 F.2d 361, 363 (8th Cir.1985), the Court held that the Secretary’s failure to prove Bogard was capable of performing light work required reversal. The Court wrote: “Neither the ALJ nor the district court substantiated the conclusion that Bogard has the residual ability to do ‘light work’ as defined in 20 C.F.R. § 404.1567.” In Jelinek v. Heckler, 764 F.2d 507 (8th Cir.1985), the Court agreed with Jelinek that, having found him incapable of doing his past relevant work, the Secretary bore the burden of proving he had a residual functional capacity for other work and that other work exists. The Court also agreed that this rule must be recognized and used “explicitly”. Jelinek, 764 F.2d at 509. Jelinek contended that there was not substantial evidence to support the finding he had the residual functional capacity to do light work. Id. Jelinek argued the Secretary had failed to give adequate consideration to his complaints of pain vis-avis amendments to the Social Security Act found at 42 U.S.C. § 423(d)(5) and Polaski v. Heckler, 739 F.2d 1320 (8th Cir.1984). The Court found that the ALJ’s residual functional capacity finding was supported by the medical evidence. Jelinek, 764 F.2d at 511. The case was remanded, however, because the Secretary had failed to meet the second prong of the burden of proof—the duty to establish the existence of jobs in the national economy. Id. In Holland v. Heckler, 768 F.2d 277, 280 (8th Cir.1985), the Court wrote: A. Burden of Proof. The evidence is clear that Holland could not return to her previous work, and thus," }, { "docid": "6278395", "title": "", "text": "had the burden of proof. This Court has consistently held that if the claimant is not able to return to his former job, the burden of proof shifts to the Secretary to establish that there is other work in the national economy that he can perform. See e.g., Holland v. Heckler, 768 F.2d 277, 280 (8th Cir.1985); McDonald v. Schweiker, 698 F.2d 361, 364 (8th Cir.1983). Additionally, if the ALJ fails to expressly recognize this shift in the administrative decision, we must assume that the burden of proof was improperly allocated. E.g., Fazio v. Heckler, 760 F.2d 187, 188 (8th Cir.1985) (per curiam); Allred v. Heckler, 729 F.2d 529, 531 (8th Cir.1984) (Court unwilling to assume implicit recognition of shift in burden of proof). Here, the ALJ failed to recognize that the burden of proof shifted to the Secretary. Since this is not a case where we can say for certain that the claimant either would have won or lost irrespective of who shouldered the burden of proof, we must remand. See e.g., Douglas v. Schweiker, 734 F.2d 399, 400 (8th Cir.1984) (evidence not strong enough to hold as a matter of law that claimant able to perform light or sedentary work); Allred, 729 F.2d at 531 (evidence not so strong that proper application of burden of proof would be irrelevant). Lanning, 777 F.2d at 1317. In a case filed the same day, Florer v. Heckler, 111 F.2d 1321 (8th Cir.1985), the Court again held that it was error for the ALJ, having found that Florer was unable to do his past relevant work, not “to indicate who bore the burden of proving whether the claimant was able to perform any substantial gainful activity.” (Emphasis added). Lanning was cited by the court of appeals in Benson v. Heckler, 780 F.2d 16, 18 (8th Cir.1985), wherein the Court stated Benson had satisfied her burden of demonstrating her impairments prevented her from performing past relevant work. The court remanded the case for development of the functional restrictions resulting from her impairments. On remand we remind the ALJ that “[t]his court has consistently" }, { "docid": "23034048", "title": "", "text": "are jobs available that a person with the claimant’s particular characteristics can perform. Id. Here, although there was substantial evidence supporting the Secretary’s decision that Jeli-nek had the capability to perform light work, Jelinek’s ability to perform such work is clearly impaired by his pain. The Secretary thus erred in using the guidelines and failing to call a vocational expert. We therefore have no alternative but to remand the case for the Secretary either to award Jelinek benefits or to conduct another hearing and call a vocational expert. For the foregoing reasons, the judgment of the district court is reversed and the case is remanded to the district court with directions to it to remand to the Secretary for action consistent with this opinion. . Jelinek contended at oral argument that the Secretary failed to acknowledge that the burden shifted to the Secretary to prove that Jelinek could engage in substantial gainful activity once the ALJ found he could not perform his former work as an electrician. We have repeatedly emphasized that ALJs must recognize and use this rule of the burden of proof, and that failure to do so will result in the presumption that the ALJ has incorrectly placed the burden on the claimant. See, e.g., Wolfe v. Heckler, 741 F.2d 1084, 1085 (8th Cir.1984); Parsons v. Heckler, 739 F.2d 1334, 1339-40 (8th Cir.1984); Simonson v. Schweiker, 699 F.2d 426, 428 (8th Cir. 1983). In this case, however, Jelinek did not raise this issue in his brief, nor did he raise it below, and consequently failed to present the issue properly for review under Fed.R.App.P. 28(a). Because we find a remand necessary on other grounds, however, the Secretary shall instruct the ALJ to recognize and use the rule explicitly. . Although Dr. Anderson also \"wonderfed] about a psychological disability,\" Jelinek has not raised this issue, and we do not address it. FAGG, Circuit Judge, dissenting. I agree with the court that the record contains substantial evidence to support the ALJ’s determination that Jelinek has the capacity to engage in light work. However, I dissent from the court’s order" }, { "docid": "6278394", "title": "", "text": "docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. FN2. We note that the ALJ applied the grid and found Holland to be disabled. However, as we note in Section 3 of this opinion, application of the grid was error. In Banning v. Heckler, 777 F.2d 1316 (8th Cir.1985), the Court remanded the case because the ALJ had not properly indicated who had the burden of proving whether Lanning was able to perform any substantial gainful activity. The court wrote: It is conceded by the Secretary and the ALJ that Lanning is unable to perform his past relevant work as police officer, detective and security guard. The question, thus, is whether Lanning can perform other work. The ALJ found that he could perform sedentary work. In making this decision, the ALJ did not properly indicate who had the burden of proof. This Court has consistently held that if the claimant is not able to return to his former job, the burden of proof shifts to the Secretary to establish that there is other work in the national economy that he can perform. See e.g., Holland v. Heckler, 768 F.2d 277, 280 (8th Cir.1985); McDonald v. Schweiker, 698 F.2d 361, 364 (8th Cir.1983). Additionally, if the ALJ fails to expressly recognize this shift in the administrative decision, we must assume that the burden of proof was improperly allocated. E.g., Fazio v. Heckler, 760 F.2d 187, 188 (8th Cir.1985) (per curiam); Allred v. Heckler, 729 F.2d 529, 531 (8th Cir.1984) (Court unwilling to assume implicit recognition of shift in burden of proof). Here, the ALJ failed to recognize that the burden of proof shifted to the Secretary. Since this is not a case where we can say for certain that the claimant either would have won or lost irrespective of who shouldered the burden of proof, we must remand. See e.g., Douglas v." }, { "docid": "7246675", "title": "", "text": "determination to be based on a complete misunderstanding of the law of this case; we find as well the AU’s assessment of the evidence to be totally deficient ignoring the stated record and arbitrarily rejecting the claimant’s vocational expert’s reasoned opinion. The AU’s finding is not based on the choices of conflicting opinion, but focuses primarily on his own injection into the record of a distorted hypothetical question to a government-retained vocational consultant, who at least on this record, presented questionable experience and background to provide an expert analysis. In short, we find the opinion of the AU based on the record totally lacking in a reasoned analysis. The record reveals that every doctor involved in Jelinek’s case has diagnosed that he suffers from postthoracotomy neuralgia, or intercostal neuritis. There is no doubt that Jelinek experiences pain. However, Jelinek’s physicians disagree as to the degree and the disabling nature of his pain. The Secretary had the burden of establishing that Jelinek could perform substantial gainful activity despite his pain. Jelinek v. Heckler, 764 F.2d at 509. In our prior opinion we found that there was “substantial evidence to support the Secretary’s decision that Jelinek’s pain does not prohibit him from engaging in light work.” Jelinek v. Heckler, 764 F.2d at 511. However, we found Jelinek suffered from non-exertional impairment and therefore the Secretary erred in using the vocational guidelines to determine whether Jelinek could perform work in the national economy. Id. We held that under such circumstances it was incumbent upon the Secretary to call a vocational expert to address whether Jeli-nek could perform work in the national economy. Id. On remand, the AU reasoned that it was the law of the case that the claimant could do light work despite his pain. On this basis, the AU held the only remaining issue was what jobs Jelinek could perform notwithstanding his pain. Therefore the AU rejected the claimant’s limitations and impairment, and the tests that the claimant’s vocational expert relied upon. The AU clearly misconstrued our determination, as pointed out by both the district court and the magistrate. As the" }, { "docid": "23034038", "title": "", "text": "would justify reopening his claim. Thus, the AU concluded that this prior determination could not be reopened. The AU went on to find that Jelinek was not disabled under the Social Security Act, because although he could not return to his former job as an electrician, he retained the residual functional capacity to perform light work. The AU also found that his complaints of pain were “not persuasive in light of the medical evidence of record and claimant’s activities,” and that the alleged pain was not sufficiently severe to prevent Jelinek from engaging in substantial gainful activity. The Appeals Council denied his request for review thereby making the AU’s decision the final decision of the Secretary. Jelinek then filed suit in federal district court for the District of Minnesota on July 26, 1982, seeking review of the Secretary’s decision. Upon the recommendation of a magistrate, the district court granted summary judgment to the Secretary on May 14, 1984. Jelinek then brought this appeal. The Secretary argues that the AU’s prior dismissal of Jelinek’s earlier application remains final and that the decision not to reopen the claim is not reviewable under Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Where a claim has been nevertheless reconsidered on the merits, however, it is properly treated as having been reopened as a matter of administrative discretion. McGowen v. Harris, 666 F.2d 60, 65-66 (4th Cir.1981). Consequently, the final decision of the Secretary denying such a claim is also subject to judicial review to the extent it has been reopened. Id.; see also Taylor v. Heckler, 738 F.2d 1112, 1114-15 (10th Cir.1984); Tucker v. Schweiker, 689 F.2d 777, 779 n. 1 (8th Cir.1982). In this case, the AU proceeded to reconsider Jelinek’s case on the merits immediately after concluding Jelinek’s earlier application could not be reopened. Re view of the Secretary’s final decision on Jelinek’s claim is therefore proper. Our task on review is to determine whether the Secretary’s decision denying disability is supported by substantial evidence. 42 U.S.C. § 405(g). Persons are considered disabled under the Social Security" }, { "docid": "23034047", "title": "", "text": "use of the Medical-Vocational Guidelines, or “grid,” in the Appendix, 20 C.F.R. Part 404, Subpart P, Appendix 2 (1984). Jelinek argues that the Secretary erred by utilizing the Medical-Vocational Guidelines in this case, and in failing to call a vocational expert to address whether there is work in the national economy which Jelinek can perform. Our Court has consistently held that if a claimant has a nonexertional impairment such as pain, “the Guidelines and grid are not controlling and cannot be used to direct a conclusion of disabled without regard to other evidence, such as vocational testimony.” McCoy v. Schweiker, 683 F.2d 1138, 1148 (8th Cir.1982). Accord: Parsons v. Heckler, 739 F.2d 1334, 1339 (8th Cir.1984); O’Leary v. Schweiker, 710 F.2d at 1339; Nicks v. Schweiker, 696 F.2d 633, 636 (8th Cir.1983). See also 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.-00(e)(1). When claimants suffer a nonexer-tional impairment, their characteristics do not identically match those set forth in the guidelines and vocational expert testimony is required for the Secretary to determine whether there are jobs available that a person with the claimant’s particular characteristics can perform. Id. Here, although there was substantial evidence supporting the Secretary’s decision that Jeli-nek had the capability to perform light work, Jelinek’s ability to perform such work is clearly impaired by his pain. The Secretary thus erred in using the guidelines and failing to call a vocational expert. We therefore have no alternative but to remand the case for the Secretary either to award Jelinek benefits or to conduct another hearing and call a vocational expert. For the foregoing reasons, the judgment of the district court is reversed and the case is remanded to the district court with directions to it to remand to the Secretary for action consistent with this opinion. . Jelinek contended at oral argument that the Secretary failed to acknowledge that the burden shifted to the Secretary to prove that Jelinek could engage in substantial gainful activity once the ALJ found he could not perform his former work as an electrician. We have repeatedly emphasized that ALJs must recognize" }, { "docid": "6278387", "title": "", "text": "777, 779 (8th Cir. 1982); McCoy v. Schweiker, 683 F.2d 1138, 1146-1147 (8th Cir.1982) (en banc); Camp v. Schweiker, 643 F.2d 1325, 1332 (8th Cir.1981). The Secretary has not appealed from our decision on this point in any of the cited cases or in any other cases in which we have so held. Thus, this view is the law of the Circuit and must be followed in all cases in this Circuit. Administrative law judges must recognize and apply this law in their decisions. Hillhouse v. Harris, 715 F.2d 428, 430 (8th Cir.1983). In Smith v. Schweiker, 728 F.2d 1158, 1163 (8th Cir.1984), Judge Bowman wrote: Because Smith established the inability to return to her former job as a meat packer, the ALJ should have shifted the burden of proof to the Secretary to come forward with evidence that Smith has the requisite residual functional capacity and vocational qualification to do other jobs which exist in the national economy. See, e.g., Baugus v. Secretary of HHS, 717 F.2d 443 (8th Cir. 1983); O’Leary v. Schweiker, 710 F.2d 1334 (8th Cir.1983). The requirement that the shift in the burden of proof be acknowledged by the ALJ was noted again in Marshall v. Heckler, 731 F.2d 555, 556 (8th Cir.1984). In Nunn v. Heckler, 732 F.2d 645, 649 (8th Cir.1984), the Court cited O’Leary, 710 F.2d at 1337, stating: “When a claimant has demonstrated an inability to return to her former work, the burden shifts to the Secretary to establish the presence of other jobs in the economy that a claimant can perform.” (Emphasis added). In Ledoux v. Schweiker, 732 F.2d 1385, 1388 (8th Cir.1984) the Court, having noted the Secretary had found Ledoux’s impairments were sufficiently severe to preclude past relevant work, wrote: “The burden then shifted to the Secretary to prove Ledoux had the requisite residual functional capacity and vocational qualifications to do other jobs which exist in the national economy.” In Parsons v. Heckler, 739 F.2d 1334, 1339-1340 (8th Cir.1984), the Court stated that after finding Parsons incapable of returning to his past relevant work, “the ALJ should have" }, { "docid": "12592807", "title": "", "text": "allegations of pain in his back, left arm, and left leg, the AU applied the Medical-Vocational Guidelines set forth in 20 C.F.R. Part 404, Sub-part P, Appendix 2, and made a finding that Talbott was not disabled. The appeals council denied Talbott’s request for reconsideration. On appeal, the district court affirmed the decision of the Secretary noting that although the AU did err in failing to expressly shift the burden of proving Talbott’s disability to the Secretary, once it was established that he was unable to return to his past relevant work, and in using the Medical-Vocational Guidelines in spite of Talbott’s non-exertional limitations, the AU’s errors had no effect on the outcome of Talbott’s claim. Talbott appeals. Discussion Under the Social Security Act, Talbott will be considered disabled if he is found to be unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be * * * expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A) (1982); see Jelinek v. Heckler, 764 F.2d 507, 509 (8th Cir.1985). If the AU finds that the claimant cannot return to his past relevant work, the burden of proof shifts to the Secretary, who then has the duty to establish that the claimant is not disabled within the meaning of the Act. Lewis v. Heckler, 808 F.2d 1293, 1297 (8th Cir.1987); Tucker v. Heckler, 776 F.2d 793, 795 (8th Cir.1985). This court requires that the AU expressly recognize this shift in his written decision and when he fails to do so, we will assume that the burden improperly remained on the claimant to prove he was disabled. Lewis, 808 F.2d at 1297; Lanning v. Heckler, 777 F.2d 1316, 1317 (8th Cir.1985). Unless the case is one in which the outcome should be clear regardless of who bears the burden of proof, see, e.g., Chitwood v. Bowen, 788 F.2d 1376, 1378 (8th Cir.1986) (per curiam), we will remand for further proceedings, e.g., Lewis, 808 F.2d at 1297, or, in cases where a hearing would simply" }, { "docid": "12592808", "title": "", "text": "423(d)(1)(A) (1982); see Jelinek v. Heckler, 764 F.2d 507, 509 (8th Cir.1985). If the AU finds that the claimant cannot return to his past relevant work, the burden of proof shifts to the Secretary, who then has the duty to establish that the claimant is not disabled within the meaning of the Act. Lewis v. Heckler, 808 F.2d 1293, 1297 (8th Cir.1987); Tucker v. Heckler, 776 F.2d 793, 795 (8th Cir.1985). This court requires that the AU expressly recognize this shift in his written decision and when he fails to do so, we will assume that the burden improperly remained on the claimant to prove he was disabled. Lewis, 808 F.2d at 1297; Lanning v. Heckler, 777 F.2d 1316, 1317 (8th Cir.1985). Unless the case is one in which the outcome should be clear regardless of who bears the burden of proof, see, e.g., Chitwood v. Bowen, 788 F.2d 1376, 1378 (8th Cir.1986) (per curiam), we will remand for further proceedings, e.g., Lewis, 808 F.2d at 1297, or, in cases where a hearing would simply delay receipt of benefits, we will reverse and award benefits outright. See Cook v. Bowen, 797 F.2d 687, 691 (8th Cir.1986). The district court was fully cognizant of these rulings and determined that although the AU had made errors in his consideration of this case, those errors were not prejudicial. The trial court observed that the AU applied the grid in this case to make a finding of not disabled even though nonexertional limitations do not allow the claimant to perform the full range of light work. The court nevertheless found that the record supported the AU’s determination that testimony of a vocational expert was not necessary. The court further found that notwithstanding the AU’s failure to acknowledge that the burden of proof had shifted to the Secretary, the denial of benefits should be affirmed since “there is substantial evidence in the record to support the AU’s decision that the claimant is not disabled within the meaning of the Social Security Act.” We respectfully disagree with these findings. In presenting evidence that a claimant is" }, { "docid": "4100947", "title": "", "text": "is based entirely upon the failure of the ALJ to specifically “state ... and make clear that the burden of proof shifted to the government after he decided that the Plaintiff could no longer do her previous work.” (Brief at 5). As acknowledged by the Secretary in his brief, a review of the ALJ’s decision shows that the AU did not, in fact, specifically acknowledge the shift in burdens of proof at Step 5. The question, then, is whether this case should be remanded accordingly to ensure that the proper burden of proof is applied. This is a pure question of law that has not been addressed by the Seventh Circuit. Several other courts have reached the issue, however, and have concluded that the failure to acknowledge the Step 5 burden of proof requires remand in most situations. The Eighth Circuit, which is apparently the only court of appeals to address the question, has consistently held that it “will not assume that the Secretary implicitly recognized the shift” in the burden of proof at Step 5. Butler v. Secretary of Health and Human Services, 850 F.2d 425, 426 (8th Cir.1988). The Eighth Circuit has reaffirmed its position on this issue on a number of occasions, see, e.g., Bradshaw v. Heckler, 810 F.2d 786, 789 (8th Cir.1987); Banning v. Heckler, 777 F.2d 1316, 1317 (8th Cir.1985); Jackson v. Schweiker, 696 F.2d 630, 631 n. 1 (8th Cir.1983), although one judge of that court consistently dissents, reasoning that such an automatic rule is not required when the reviewing court is “able to ascertain whether the appropriate rule was in fact recognized and applied.” Butler, 850 F.2d at 429 (Fagg, J. dissenting). The Eighth Circuit makes an exception to its rule in “those rare instances where the outcome would be clear regardless of who shoulders the burden of proof.” Bradshaw, 810 F.2d at 789; Lanning, 111 F.2d at 1317. Thus, in eases where the record shows that there is clearly no way the claimant could win at Step 5, the Eighth Circuit would not require a remand that would obviously be futile. Other" }, { "docid": "23034039", "title": "", "text": "remains final and that the decision not to reopen the claim is not reviewable under Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Where a claim has been nevertheless reconsidered on the merits, however, it is properly treated as having been reopened as a matter of administrative discretion. McGowen v. Harris, 666 F.2d 60, 65-66 (4th Cir.1981). Consequently, the final decision of the Secretary denying such a claim is also subject to judicial review to the extent it has been reopened. Id.; see also Taylor v. Heckler, 738 F.2d 1112, 1114-15 (10th Cir.1984); Tucker v. Schweiker, 689 F.2d 777, 779 n. 1 (8th Cir.1982). In this case, the AU proceeded to reconsider Jelinek’s case on the merits immediately after concluding Jelinek’s earlier application could not be reopened. Re view of the Secretary’s final decision on Jelinek’s claim is therefore proper. Our task on review is to determine whether the Secretary’s decision denying disability is supported by substantial evidence. 42 U.S.C. § 405(g). Persons are considered disabled under the Social Security Act if they have an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A). Once claimants show their inability to perform their former job due to their disability, the burden then shifts to the Secretary to prove that they can perform some other kind of substantial gainful activity. Jackson v. Schweiker, 696 F.2d 630, 631 n. 1 (8th Cir.1983); Tucker v. Schweiker, 689 F.2d at 779. Jelinek contends that there is not substantial evidence to support the Secretary’s finding that he could perform light work. First, he argues that the Secretary failed to give adequate consideration to his complaints of pain. Under the Social Security Act as recently amended by Congress, [a]n individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there" }, { "docid": "6278390", "title": "", "text": "to the ALJ to show that there is other work in the national economy that he could perform. See, e.g., Baugus v. Secretary of Health and Human Services, 717 F.2d 443, 445-46 (8th Cir.1983); Nettles v. Schweiker, 714 F.2d 833, 835-36 (8th Cir. 1983); O’Leary v. Schweiker, 710 F.2d 1334, 1337 (8th Cir.1983). The evidence is clear that Hunt was unable to perform the lifting and standing required at his former job. Therefore, the burden was on the ALJ to establish with substantial evidence that Hunt has the capacity to do other kinds of work and that, considering his qualifications and capabilities, there is some work in the national economy that he can perform. McCoy v. Schweiker, 683 F.2d 1138, 1146-47 (8th Cir.1982) (en banc). In Fazio v. Heckler, 760 F.2d 187, 188 (8th Cir.1985), the court wrote that a finding that Fazio could not do his past relevant work required that the burden of proof be shifted to the Secretary to prove that he could perform some other substantial gainful activity. The Court wrote that failure to shift the burden of proof is reversible error and that where the Secretary does not explicitly recognize that the burden has shifted, the court will not assume that the burden was in fact shifted. The court went on: “Further, the Secretary must show not only that a claimant has the residual functional capacity to do other work, but that there are also jobs available in the national economy which realistically suit claimant’s qualifications and capabilities.” Fazio, 760 F.2d at 189. In Bogard v. Heckler, 763 F.2d 361, 363 (8th Cir.1985), the Court held that the Secretary’s failure to prove Bogard was capable of performing light work required reversal. The Court wrote: “Neither the ALJ nor the district court substantiated the conclusion that Bogard has the residual ability to do ‘light work’ as defined in 20 C.F.R. § 404.1567.” In Jelinek v. Heckler, 764 F.2d 507 (8th Cir.1985), the Court agreed with Jelinek that, having found him incapable of doing his past relevant work, the Secretary bore the burden of proving he had" }, { "docid": "3258777", "title": "", "text": "res judicata effect. The ALJ reconsidered the merits of the prior decisions with regard to Wolfe’s educational level. When we determine that an ALJ has reopened a prior decision, we have jurisdiction to review the prior decision to the extent that it has been reopened. See Robertson v. Sullivan, 979 F.2d 623, 625 (8th Cir.1992) (per curiam). On review, our task is to determine if the Secretary’s denial of disability is supported by substantial evidence. 42 U.S.C. § 405(g) (Supp.1995). We have the “power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing.” Id. If we determine that the errors in a prior decision would entitle the claimant to benefits that he has been denied, then we should remand the case for a reexamination of the prior closed application. See Jelinek v. Heckler, 764 F.2d 507, 509-11 (8th Cir. 1985). In this case, we are limited in our review of the prior applications to the miseharaeterization of Wolfe’s educational level as “limited” when the evidence indicates that the appropriate description, at the most, should have been “marginal.” As discussed above, however, there is insufficient evidence in the record to support the third ALJ’s finding that Wolfe possessed a marginal education. Therefore, the fact that the third ALJ’s reconsideration of the merits of the prior applications constituted a de facto reopening of those decisions requires that on remand the Secretary must determine whether Wolfe’s correct educational level, once established by sufficient evidence, would entitle him to benefits during the periods covered by the 1984 and 1986 decisions. Because we find that the third ALJ in fact reopened the prior decisions, we do not address Wolfe’s alternative arguments that his due process rights were violated or that there were errors on the faces of the prior decisions that require a reopening. III. CONCLUSION Wolfe appeals the district court’s judgment affirming the decision of the Secretary. We conclude that the district court erred in its determination that the third ALJ had not" } ]

[ { "docid": "12912259", "title": "", "text": "we conclude that appellee’s patent is invalid for lack of invention. The streamlined effect and the elements adapted and combined to produce it were known to the prior art; there was no such advance as constituted patentable invention. See Austin, The Patentable Invention, 84 Univ. of Pa. Law Rev. 943. Nothing we said in Applied Arts Corp. v. Grand Rapids Metalcraft Corp., 6 Cir., 67 F.2d 428, is inconsistent with this conclusion. We there discussed degree of similarity in connection with the issue of infringement, while here the question is whether, the prior art considered, the patentee achieved such a difference of ap pearance as rises to the dignity of invention. Cf. Knapp v. Will & Baumer Co., 2 Cir., 273 F. 380; King Ventilating Co. v. St. James Ventilating Co., 8 Cir., 26 F.2d 357; Berlinger v. Busch Jewelry Co., 2 Cir., 48 F.2d 812. Appellee claims, and the District Court stated, that appellant had failed to overcome the presumption of validity arising from the grant of appellee’s patent. We disagree. It is true that “the grant of letters patent is prima facie evidence that the patentee is the first inventor of the device described in the letters patent, and of its novelty.” Cantrell v. Wallick, 117 U.S. 689, 695, 6 S.Ct. 970, 974, 29 L.Ed. 1017. It has been said that the issue of a patent is enough to show, until the contrary appears, that all statutory conditions have been met; that the burden of proving anticipation is upon him who alleges it; and that every reasonable doubt is to be resolved against the defense. Coffin v. Ogden, 18 Wall. 120, 21 L.Ed. 821; Barbed Wire Patent (Washburn & Moen Mfg. Co. v. Beat ’Em All Barbed Wire Co.), 143 U.S. 275, 12 S.Ct. 443, 36 L.Ed. 154; Adamson v. Gilliland, 242 U.S. 350, 37 S.Ct. 169, 61 L.Ed. 356; Mumm v. Jaćob E. Decker & Sons, 301 U.S. 168, 57 S.Ct. 675, 81 L.Ed. 983, citing Cantrell v. Wallick, supra; Radio Corporation v. Radio Laboratories, 293 U.S. 1, 8, 55 S.Ct. 928, 79 L.Ed. 163. The doctrine" } ]

[ { "docid": "5428732", "title": "", "text": "Sidewinder argues strenuously that the trial court committed error in that (1) it failed to give the patent in suit the proper presumption of validity in light of the prior art considered by the Patent Office and of the determination of validity by the District Court in California in Sidewinder Marine, Inc. v. Burns, supra ; (2) it measured obviousness of the design from the perspective of a designer of ordinary skill rather than from the viewpoint of the ordinary intelligent person; (3) it failed to make proper findings on the scope and content of the prior art, the differences between the prior art and the patent in suit, and the level of ordinary skill in the art; and (4) its findings that the design was obvious and unoriginal were clearly erroneous. II The presumption of validity and the determination of validity in the Burns case Plaintiff Sidewinder initially argues that the trial court failed to give its design patent the proper presumption of validity and that defendant Starbuck failed in its attempt to overcome that presumption. Plaintiff cites 35 U.S.C. § 282 which provides that a patent once issued “shall be presumed valid,” and that “[t]he burden of establishing invalidity . . . shall rest on the party asserting such invalidity.” It is true that the burden on an alleged infringer to rebut the presumption of validity is heavy. The defendant must introduce “clear and convincing” evidence in this regard, e. g., Moore v. Shultz, 491 F.2d 294, 298 (10th Cir.), and “every reasonable doubt should be resolved against him,” Mumm v. Jacob E. Decker & Sons, 301 U.S. 168, 171, 57 S.Ct. 675, 676, 81 L.Ed. 983. See also Radio Corp. of America v. Radio Engineering Laboratories, Inc., 293 U.S. 1, 7-8, 55 S.Ct. 928, 79 L.Ed. 163; Eimco Corp. v. Peterson Filters and Engineering Co., 406 F.2d 431, 434 (10th Cir.), cert. denied, 395 U.S. 963, 89 S.Ct. 2105, 23 L.Ed.2d 749; King-Seely Thermos Co. v. Refrigerated Dispensers, Inc., 354 F.2d 533 (10th Cir.). The rationale for this strong presumption is the expertise of the Patent Office" }, { "docid": "11184522", "title": "", "text": "Glass Co., D.C., 109 F.Supp. 228, 232, and authorities cited. The plaintiff’s patent is presumed to be valid. 35 U.S.C. § 282. However, this presumption of validity is rebuttable, and it may be noted that the defendant cites certain prior art patents and prior public use of the Logan conveyer system, which were not cited and apparently not considered by the examiner. There is no presumption of validity over this prior art which the examiner did not consider. O’Leary v. Liggett Drug Co., 6 Cir., 150 F.2d 656, certiorari denied 326 U.S. 773, 66 S.Ct. 232, 90 L.Ed. 467. Furthermore the fact that the examiner did not mention certain prior art does not raise a presumption that he was aware of it and did not consider it applicable. Himmel Bros. Co. v. Serrick Corporation, 7 Cir., 122 F.2d 740, 745; H. Schindler & Co., Inc., v. C. Saladino & Sons, Inc., 1 Cir., 81 F.2d 649, 651; Robinson Aviation, Inc., v. Barry Corp., D.C., 106 F.Supp. 514, 519. The scope of the patent in suit is limited to the invention described in the claims when read in the light of the specifications and drawings, but the claims limit the boundaries of the patent and may not be enlarged by the specifications. In other words, the specifications may explain, but may not expand or enlarge, the patent claims. Schriber-Schroth Co. v. Cleveland Trust Co., 311 U.S. 211, 312 U.S. 654, 61 S.Ct. 235, 85 L.Ed. 132; Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 37 S.Ct. 416, 61 L.Ed. 871; Hutzler Bros. Co. v. Sales Affiliates, Inc., 4 Cir., 164 F.2d 260. Furthermore, DeBurgh, the patentee, is presumed to have known and is chargeable with knowledge of everything disclosed by the prior art in the field of conveyer systems and of all devices in that field which have been in prior public use. Zephyr American Corporation v. Bates Mfg. Co., 3 Cir., 128 F.2d 380; Cutler Mail Chute Co. v. Capitol Mail Chute Corporation, 2 Cir., 118 F.2d 63; Detroit Stoker Co. v. Brownell Co., 6 Cir.," }, { "docid": "1933726", "title": "", "text": "for the letters patent citing Smith v. Goodyear Dental Vulcanite Co., 93 U.S. 486, 501, 23 L.Ed. 952; Godfrey v. Eames, 1 Wall. 317, 68 U.S. 317, 17 L.Ed. 684; Chapman v. Wintroath, 252 U.S. 126, 40 S.Ct. 234, 64 L.Ed. 491; Victor Talking Mach. Co. v. American Graphophone Co., 2 Cir., 145 F. 350; Hayes-Young Tie Plate Co. v. St. Louis Transit Co., 8 Cir., 137 F. 80; Timken-Detroit Axel Co. v. Eaton Axle & Spring Co., D.C., 56 F.2d 651. The presumption of validity which attends a duly issued patent carries with it the necessarily implied presumption that it was not anticipated by prior knowledge and use. See Radio Corp. of America v. Radio Laboratories, 293 U.S. 1, 55 S.Ct. 928, 79 L.Ed. 163. The courts have expressed many views as to the force of this presumption and the degree of proof necessary to overcome it, when the validity of the patent is in issue. But, throughout all the cases runs the concept that the proof must be more than a dubious preponderance — it must be strong, clear and convincing. See Radio Corp. v. Radio Laboratories, supra; Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523; Zachos v. Sherwin-Williams Co., 5 Cir., 166 F.2d 79; Rokap Corp. v. Lamm, D.C., 10 F.Supp. 219, affirmed 4 Cir., 85 F.2d 873; United Kingdom Optical Co. v. American Optical Co., 1 Cir., 68 F.2d 637. Our question is whether the facts in these cases meet that test, or otherwise stated, are the findings and judgment of the trial court clearly erroneous ? There was proof to the effect that in 1930 M. J. Campbell of Denver, Colorado, under the name of Insul Fluf Corporation started manufacturing insulation material by grinding waste paper with a hammer mill and impregnating the same with sulphate ammonia for the purposes of vermin proofing and fire resistance; at that time he was using screens on the hammer mill from %th to %th or %th inches, and numerous sales and installations were made during 1932 and the" }, { "docid": "6728347", "title": "", "text": "‘[T]he burden of proof to make good the defense’ is ‘upon the party setting it up’ and ‘every reasonable doubt should be resolved against him’.” Radio Corporation of America v. Radio Engineering Laboratories, Inc., 293 U.S. 1, 7, 55 S.Ct. 928, 79 L.Ed. 163. The presumption is strengthened where the prior art relied upon to invalidate the patent was considered and rejected by the patent office, but this is not conclusive. Lewyt Corporation v. Health-Mor, Inc., 7 Cir., 181 F.2d 855, 857. It is, therefore, plain that the burden of establishing the invalidity of the plaintiff’s patent is upon the defendant. On the other hand the burden of proving infringement by a preponderance of the evidence is upon the plaintiff. Harries v. Air King Products Co., Inc., 2 Cir., 183 F.2d 158; Kalo Inoculant Co. v. Funk Bros. Seed Co., 7 Cir., 161 F.2d 981, reversed on other grounds 333 U.S. 127, 68 S.Ct. 440, 92 L.Ed. 588; 69 C.J.S., Patents, § 326, p. 1001. The first question with which this court is confronted, is priority of patent rights. This must be determined as a matter of fact. Sarnes v. Morley, D.C., 56 F.Supp. 735; Kislyn Corporation v. Eastman Kodak Co., D.C., 43 F.Supp. 552. It requires consideration of (1) the dates of the patents, \"(2) the dates of the applications, (3) the dates of actual reduction to practice, and (4) the dates of conception. Automatic Weighing Mach. Co. v. Pneumatic Scale Corp., 1 Cir., 166 F. 288; Corley v. Robinson, D.C., 3 F.Supp. 176; 69 C.J.S., Patents, § 87, page 383. The dates of the patents are: Henschel February 20, 1951; Wach February 20, 1951; and Kesel December 16, 1952. The dates of application, as shown on the patents are: Henschel February 27, 1947, Wach October 1, 1948, and Kesel July 7, 1952. However, Wach and Kesel both stem from the original application of Kesel, Joseph F. O’Donnell, Ernest R. Kirch, and Wach filed January 9, 1947. -It was agreed between this group as shown by the file wrapper, that Wach was the sole inventor of a dentifrice using" }, { "docid": "1931781", "title": "", "text": "Lewis Blind-Stitch Mach. Co. v. Arbetter Felling Mach. Co., D.C.N.D.Ill.1913, 208 F. 992, affirmed 7 Cir., 1914, 219 F. 557; Monitor Stove Co. v. Williamson Heater Co., 6 Cir., 1924, 299 F. 1; Sarazin v. Wright Aeronautical Corporation, D.C.S.D.N.Y. 1944, 54 F.Supp. 244. 3. Failure of the Patent Office to consider the most pertinent prior art upsets the presumption of validity of the patent in suit. France Mfg. Co. v. Jefferson Electric Co., 6 Cir., 1949, 106 F.2d 605, certiorari denied 1940, 309 U.S. 657, 60 S.Ct. 471, 84 L.Ed. 1006; Lempco Products, Inc., v. Timken-Detroit Axle Co., 6 Cir., 1940, 110 F.2d 307, certiorari denied 1940, 311 U.S. 675, 61 S.Ct. 42, 85 L.Ed. 434; Cutler Mail Chute Co. v. Capitol Mail Chute Corporation, 2 Cir., 1941, 118 F.2d 63, certiorari denied 1941, 313 U.S. 580, 61 S.Ct. 1096, 85 L.Ed. 1537. A Claim 1 of the patent in suit is invalid for want of invention because. it merely involves the selection and substitution of flat expanded metal for other metallic surfaces having openings therein, both flat expanded metal and said metallic surfaces having been known to the public prior to the filing date of the patent in suit. Manufacturers of flat expanded metal, in publications made prior to the filing of the patent, suggested the use and substitution of flat expanded metal for other known metallic surfaces having openings therein. The substitution of flat expanded metal by John in the patent in suit for other ventilated metal surfaces in ironing boards was, therefore, a logical step for a skilled man designing an ironing table and involved only engineering or mechanical skill. Great Atlantic and Pacific Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162; Dow Chemical Co. v. Halliburton Oil Well Cementing Co., 1945, 324 U.S. 320, 65 S.Ct. 647, 89 L.Ed. 973; Sinclair & Carroll Co. v. Interchemical Corp., 1944, 325 U.S. 327, 65 S.Ct. 1143, 89 L.Ed. 1644; Hotchkiss v. M. Greenwood, 1850, 11 How. 248, 52 U.S. 248, 13 L.Ed. 683; General Motors Corp. v. Estate Stove Co.," }, { "docid": "7383714", "title": "", "text": "In the experiment this machine did clean cotton but it had two drawbacks: excessive throw-off of fiber and insufficient capacity for use with a gin. The excessive throw-off apparently was a result of using only one cleaning bar, thus allowing cotton to flare out from the saw cylinder before it reached the doffing means. Its lack of capacity was attributable to its size. The Garner commercial regin also called for the delivery of the cotton to the feed rolls of the cleaner in a continuous bat. Thus the Garner commercial regin includes every element of Brooks operating in the same way as Brooks. Validity. The presumption of validity attends the grant of a patent and the burden of persuasion of invalidity is on the putative infringer. Radio Corporation of America v. Radio Engineering Laboratories, Inc., 293 U.S. 1, 55 S.Ct. 928, 79 L.Ed. 163; 35 U.S.C. § 282. The presumption is strengthened when it appears that the Patent Office has considered and distinguished the prior art relied on as anticipation. Southern States Equip. Corp. v. USCO Power Equip. Corp., 5 Cir., 209 F.2d 111. But where, as here, the Patent Office has failed to consider pertinent art, the statutory presumption of validity is greatly weakened. To be patentable, it is not necessary that the machine be broadly or generically new. It is sufficient if its novelty is but an improvement on a prior patent, in which event patent rights thereunder are strictly limited to its precise form and elements. Diamond Rubber Co. of New York v. Consolidated Rubber Tire Co., 220 U.S. 428, 31 S.Ct. 444, 55 L.Ed. 527; 35 U.S.C. § 101. A machine composed of elements of the prior art is patentable if the combination produces a new and useful result. Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U.S. 301, 29 S.Ct. 495, 53 L.Ed. 805; Jeoffroy Mfg. v. Graham, 5 Cir., 219 F.2d 511. But a mere aggregation of old elements performing no new functions and achieving no new result is not patentable. Lincoln Engineering Co. of Illinois v. Stewart-Warner Corp., 303 U. S." }, { "docid": "2399135", "title": "", "text": "to the stage of practical commercial use. Seymour v. Osborne, 1870, 11 Wall. 516, 533, 20 L.Ed. 33. Cf. United States v. United Shoe Machinery Corp., 1922, 258 U.S. 451, 463, 42 S.Ct. 363, 66 L.Ed. 708; Kendall v. Winsor, 1858, 21 How. 322, 327, 328, 16 L.Ed. 165; Bloomer v. MeQuewan, 1852, 14 How. 539, 549, 14 L.Ed. 532, cited with approval in United States v. Univis Lens Co., Inc., May 11, 1942, 62 S.Ct 1088, 86 L.Ed. —; Meyers and Lewis, The Patent “Franchise” and The Antitrust Laws, 30 Georgetown L.Rev. (1941) 117, 123. As to the public interest, see Morton Salt v. G. S. Suppiger Co., 314 U.S. 488, 489, 62 S.Ct. 402, 86 L.Ed. 363; United States v. Univis Lens Co., supra; United States v. Masonite Corp., May 11, 1942, 62 S.Ct. 1070, 86 L.Ed. —; Dens-more v. Scofield, 102 U.S. 375, 378, 26 L.Ed. 214; Kendall v. Winsor, 62 U.S. 322, 328, 329, 21 How. 322, 16 L.Ed. 165; Picard v. United Aircraft Corp., supra. It may be suggested that the issue of infringement is primary because the plaintiff must show that his rights have been invaded. But, unless he has a valid patent, he has no rights in the device which an infringement can invade. In a suit for trespass to land, the plaintiff must show both ,(a) 'that he has title to the land and (b) that the defendant has trespassed on that land; there is no rule that the court must first consider the defendant’s conduct; indeed, if either issue were to be regarded as primary, it might well be that of plaintiff's title. This is true because, often, the Patent Office was not thoroughly acquainted with the prior art. Cf. Western Auto Supply Co. v. American-National Co., 6 Cir., 114 F.2d 711, 713; Cutler Mail Chute Co. v. Capital Mail Chute Corp., 2 Cir., 118 F.2d 63, 64; Lempco Products v. Timken-Detroit Axle Co., 6 Cir., 110 F.2d 307, 310. The doctrine that quasi-judicial administrative determinations of fact are entitled to great weight has and should have little bearing on the" }, { "docid": "11923356", "title": "", "text": "an improper test of invention. (2) That even if validity of the patent is sustained, appellants’ accused devices do not, within the rule or doctrine of equivalents, infringe Patent No. 798. If appellants’ position as to contention (1) is sound, i. e., if the Graham patent is invalid for want of invention, there can be no infringement of its claims and we need not consider contention (2). Selmix Dispensers, Inc. v. Multiplex Faucet Co. (Inc.), 8 Cir., 277 F.2d 884, 886 (1960); Caldwell v. Kirk Manufacturing Company, 8 Cir., 269 F.2d 506, 507 (1959), cert. denied, 361 U.S. 915, 80 S.Ct. 260, 4 L.Ed.2d 185 (1959); Briggs & Stratton Corporation v. Clinton Machine Co., 8 Cir., 247 F.2d 397, 400, 401 (1957), cert. denied, 355 U.S. 914, 78 S.Ct. 344, 2 L.Ed.2d 274 (1958). Appellees urge and rely upon the uncontroverted rule, established by statute and consistently recognized by the courts, that a patent shall be presumed valid and that the burden of establishing invalidity of a patent shall rest on the party asserting it. 35 U.S.C. § 282; e. g., Radio Corporation of America v. Radio Engineering Laboratories, Inc., 293 U.S. 1, 7-8, 55 S.Ct. 928, 79 L.Ed. 163 (1934); Steffan v. Weber Heating and Sheet Metal Company, 8 Cir., 237 F.2d 601, 602 (1956). It is equally clear, however, that the presumption of validity is a rebut-table one, that when substantial evidence attacking the validity of a patent is introduced, the question whether the patent constitutes an invention is for the court, Steffan v. Weber Heating and Sheet Metal Company, supra, 237 F.2d at 602; Continental Farm Equipment Co. v. Love Tractor, 8 Cir., 199 F.2d 202, 204 (1952), cert. denied, 345 U.S. 909, 73 S.Ct. 649, 97 L.Ed. 1344 (1953), and that the presumption of validity is weakened if applicable prior art is not considered by the Patent Office. L. S. Donaldson Company v. La Maur, Inc., 8 Cir., 299 F.2d 412, 420 (1962), cert. denied, 371 U.S. 815, 83 S.Ct. 27, 9 L.Ed.2d 57 (1962); Day-Brite Lighting, Inc. v. Sandee Manufacturing Co., 7 Cir., 286 F.2d" }, { "docid": "2591552", "title": "", "text": "other grounds of defendant’s opposition stem largely from Ninth Circuit cases, one of which is Jacuzzi Bros. v. Berkeley Pump Co. (1951), 191 F.2d 632, 634; the quotation therefrom is as follows: “The presumption of validity of administrative grant has been in recent years almost reduced to nullity in patent cases.” The statement in that case is wholly and purely dicta. The case was tried on the merits [see D.C., 90 F.Supp. 238], and the patent found invalid, which was affirmed on appeal. Other cases in the Ninth Circuit have statements much to the same effect. These statements seem to me to be contrary to the pronouncements of the Supreme Court in Radio Corp. of America v. Radio Engineering Labs. (1934), 293 U.S. 1, 55 S.Ct. 928, 79 L.Ed. 163, and Mumm v. Jacob E. Decker & Sons (1937), 301 U.S. 168, 57 S.Ct. 675, 81 L.Ed. 983. In the Radio Corp. case the Supreme Court said as follows concerning the presumption of validity: “A patent regularly issued, and even more obviously a patent issued after a hearing of all the rival claimants, is presumed to be valid until the presumption has been overcome by convincing evidence of error. The force of that presumption has found varying expression in this and other courts. Sometimes it is said that in a suit for infringement, when the defense is a prior invention, ‘the burden of proof to make good this defense’ is ‘upon the party setting it up,’ and ‘every reasonable doubt should be resolved against him.’ Cantrell v. Wallick, 117 U.S. 689, 695, 696 [6 S.Ct. 970, 29 L.Ed. 1017]; Coffin v. Ogden, 18 Wall. 120, 124, [21 L.Ed. 821]; The Barbed Wire Patent, 143 U.S. 275, 285 [12 S.Ct. 443, 447, 36 L.Ed. 154]; Washburn v. Gould, [Fed.Cas.No. 17,-214] 3 Story 122, 142; H. J. Heinz Co. v. Cohn [9 Cir.] 207 F. 547, 554; Detroit Motor Appliance Co. v. Burke, [8 Cir.] 4 F.(2d) 118, 122; Wilson & Willard Mfg. Co. v. Bole, [9 Cir.] 227 F. 607, 609; Stoody Co. v. Mills Alloys, Inc., [9 Cir.] 67 F.(2d)" }, { "docid": "16996124", "title": "", "text": "of validity. Motor Improvements, Inc. v. General Motors Corp. 6 Cir., 49 F.2d 543.” (C) Whether or Not Claims 16, 17 and 19 are Indefinite and Ambiguous. Upon a consideration and study of these claims the Court is of the opinion that they are neither indefinite nor ambiguous. (D) Whether or Not Claims 12, 14 and 16 are Based upon New Matter in the Patent-in-suit. Upon the question here presented, the views of the Court are sufficiently expressed in its Finding No. 24. It is now axiomatic that a patent regularly issued is presumed to be valid. As stated by the Court in Merco Nordstrom Valve Co. v. W. M. Acker Organization, 6 Cir., 131 F.2d 277, 280, “Of course the patent itself was prima facie evidence of its validity,” and that presumption is strengthened where, as here, the patent issued after a hearing of rival claimants. Radio Corp. v. Radio Engineering Laboratories, 293 U.S. 1, 7, 55 S.Ct. 928, 79 L.Ed. 163. The burden of proving want of novelty is upon him, who avers it. Not only is the burden to make good this defense upon the party setting it up, but his burden is a heavy one, as it has been held that “ ‘every reasonable doubt should be resolved against him.’ * * * Cantrell v. Wallick, supra [117 U.S. 689, 6 S.Ct. 970, 29 L.Ed. 1017]; Coffin v. Ogden, 18 Wall. 120, 124, 21 L.Ed. 821; Barbed Wire Patent (Washburn & Moen Mfg. Co. v. Beat ’Em All-Barb-Wire Co.) 143 U.S. 275, 284, 285, 12 S.Ct. 443, 450, 36 L.Ed. 154, 161; Adamson v. Gilliland, 242 U.S. 350, 353, 37 S.Ct. 169, 61 L.Ed. 356.” Mumm v. Jacob E. Decker and Sons, 301 U.S. 168, 171, 57 S.Ct. 675, 676, 81 L.Ed. 983. One otherwise an infringer who assails the validity of a patent, fair upon its face, bears a heavy burden of persuasion and fails unless his evidence has more than a dubious preponderance. Williams Mfg. Co. v. United Shoe Machine Corp., 6 Cir., 121 F.2d 273, affirmed 316 U.S. 364, 62 S.Ct. 1179, 86" }, { "docid": "12172676", "title": "", "text": "the existence of prior art only by clear and convincing evidence. It contends that under Washburn & Moen Mfg. Co. v. Beat ’Em All Barbed Wire Co., 143 U.S. 275,12 S.Ct. 443, 36 L.Ed. 154 (1892), the prior use of a device by others was required to be proved beyond a reasonable doubt. Although the Supreme Court there stated that proof of “unpatented devices, claimed to be anticipations of [the patented device] ... shall be clear, satisfactory and beyond a reasonable doubt” (143 U.S. at 284, 12 S.Ct. at 447), more recent decisions have not required that standard of proof. The Supreme Court apparently has retreated from that standard. See, e.g., Radio Corporation of America v. Radio Engineering Laboratories, 293 U.S. 1, 55 S.Ct. 928, 78 L.Ed. 1453, 21 USPQ 353 (1934); Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 60, 43 S.Ct. 322, 327, 67 L.Ed. 523 (1923) (“[Evidence to prove prior discovery must be clear and satisfactory.”). See also 1 Chisum, Patents § 3.05[2][c] (1983). One of our predecessor courts stated that “[p]roof of [prior use of the patented invention by others] must be clear and convincing to overcome the presumption of validity.” Stevenson v. International Trade Commission, 612 F.2d 546, 550, 67 CCPA 109, 204 USPQ 276, 280 (1979). Similarly, we have held that a patent may be invalidated “by clear and convincing evidence or its equivalent, by whatever form of words it may be expressed.” American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1360, 220 USPQ 763, 770 (Fed.Cir.1984). The rule that we apply— that prior use of a device by others must be proved by clear and convincing evidence— is one that a majority of the regional circuits that have considered the question also have applied. E.g., E.I. DuPont de Nemours & Co. v. Berkley & Co., 620 F.2d 1247, 205 USPQ 1 (8th Cir.1980); Paeco, Inc. v. Applied Moldings, Inc., 562 F.2d 870, 194 USPQ 353 (3d Cir.1977); Julian v. Drying Systems Co., 346 F.2d 336, 145 USPQ 631 (7th Cir.1965); Anderson Co. v. Trico" }, { "docid": "2956457", "title": "", "text": "Ontario Paper Co., 261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523. The practical experience of both parties to the suit who are active competitors of the trade attests the value of the Neely structure in the business world. So far as we know the structures depicted in the Compin and Fryer patents were not manufactured while the Neely idea has been exploited with great success. The defendant urges that this success was due to the business acumen and sagacity of the plaintiff’s executive officials rather than the merits of its product and this may be true in a measure. Nevertheless, business commercial success may properly be weighed as one factor in considering the question of invention. Hutzler Bros. Co. v. Sales Affiliates, 4 Cir., 164 F.2d 260, 267; Florence-Mayo Nuway Co. v. Hardy, 4 Cir., 168 F.2d 778, 781; cf. B. F. Goodrich Company v. United States Rubber Company, 4 Cir., 244 F.2d 468. In the present instance particularly the value of the invention is shown by the action of the defendant itself who, guided by long and successful experience in the manufacture of furniture springs, incorporated the idea of the patent in suit in its own line of goods after the plaintiff had demonstrated its advantages to the purchasing public. The plaintiff is also entitled to the benefits of the statute, 35 U.S.C. § 282, which declares that a patent issued by the Patent Office shall be presumed valid and places the burden of establishing invalidity on the party asserting it. We do not think as the plaintiff contends that an infringer must prove invalidity beyond a reasonable doubt. The cases on which the plaintiff relies for this rule, to wit: Mumm v. Jacob E. Decker & Sons, 301 U.S. 168, 57 S.Ct. 675, 81 L.Ed. 983, and Radio Corporation of America v. Radio Engineering Laboratories, 293 U.S. 1, 54 S.Ct. 752, 78 L.Ed. 1453, were cases in which priority of discovery of the same invention was the issue rather than invalidity by reason of relevant disclosures of the prior art. Nevertheless, the presumption accorded by the statute" }, { "docid": "20790003", "title": "", "text": "an inequitable hardship, and if it is successful in this case will be content with money damages for past infringement, and an injunction only against new infringing installations. Defendant seeks an adjudication that the patent in suit is not infringed and is invalid and void. Defendant further seeks a decree that the patent is unenforceable because of plaintiff's alleged acts of misuse and violations of the Federal antitrust laws and that plaintiff is estopped from asserting the patent against the defendant. Both parties seek an assessment of costs and an award of reasonable attorneys fees. VALIDITY Statutory Provisions United States Code, Article 35, Section 282. “Presumption of Validity” “A patent shall be presumed to be valid. The burden of establishing invalidity of a patent shall rest on a party asserting it.” The burden is a heavy one. Copease Mfg. Co. v. American Photocopy Equipment Co., 298 F.2d 772, 777 (7 Cir. 1961); Diamond International Corporation v. Walterhoefer, 289 F.Supp. 550, 554 (D.Md.1968); Grinnell Corp. v. American Monorail Co., 285 F.Supp. 219 (D.S.C.1967). This presumption is strengthened where two of the three patents relied upon by defendant were made of record by the Examiner, and where the remaining art relied upon by defendant was long known and is less pertinent. Chesapeake & Ohio Railway Co. v. Kaltenbach, 95 F.2d 801, 804 (4 Cir. 1938); Bowser, Inc. v. Richmond Engineering Co., 166 F.Supp. 68, 75 (E. D.Va.1958), modified on other grounds, 264 F.2d 595 (4 Cir. 1959). Defendant’s contention that the patent “slipped through” the Patent Office “like a greased pig”, is picturesque but indecisive. Whether a tortuous process before the Examiner, who at last yields without explaining why, strengthens or weakens the presumption, has been ques tioned. Cook Engineering & Electronics, Inc. v. Hickory Foundry and Machine Co., 231 F.Supp. 271, 273 (W.D. N.C.1964); Aghnides v. F. W. Woolworth Company, 335 F.Supp. 370, 377 (D.Md.1971). The “easy course” certainly eliminates any problem of file wrapper estoppel in connection with infringement. Section 103: “Conditions for patentability; non-obvious subject matter” reads as follows: A patent may not be obtained though the invention is" }, { "docid": "1998490", "title": "", "text": "truly indebted to the efforts of the patentee.” In the recent case of Shaffer v. Armer, 10 Cir., 184 F.2d 303, the court said at page 307: “ ‘The design of the patent laws is to reward those who make some substantial discovery or invention, which adds to our knowledge and makes a step in advance in the useful arts.’ Atlantic Works v. Brady, 107 U.S. 192, 200, 2 S.Ct. 225, 231, 27 L.Ed. 438. The device must not only be ‘new and useful,’ it must also amount to ‘invention or discovery’. Thompson v. Boisselier, 114 U.S. 1, 11, 5 S.Ct. 1042, 1047, 29 L.Ed. 76; and ‘perfection of workmanship, however much it may increase the convenience, extend the use, or diminish expense, is not patentable.’ Reckendorfer v. Faber, 92 U.S. 347, 356-357, 23 L.Ed. 719; Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 91, 62 S.Ct. 37, 86 L.Ed. 58.” In considering the question as to the validity of each of the three patents here in suit, it should be kept in mind that the patentee in each instance is presumed to know and is chargeable with knowledge of everything disclosed by prior-art patents. Zephyr American Corporation v. Bates Mfg. Co., 3 Cir., 128 F.2d 380; Cutler Mail Chute Co. v. Capitol Mail Chute Corporation, 2 Cir., 118 F.2d 63; Detroit Stoker Co. v. Brownell Co., 6 Cir., 89 F.Zd 422. Plaintiff’s spring-assembly patent in suit, Karr 1,887,058, was issued to F. (Francis) Karr November 8, 1932, on application filed December 21, 1927, and by assignment became the property of the Charles Karr Company, predecessor of the plaintiff corporation. The defendants contend that this patent is invalid because lacking invention and because fully anticipated and disclosed in prior-art patents, particularly in Karr 1,744,389 issued to F. (Francis) Karr January 21, 1930, on application filed August 27, 1927. Defendants further contend that plaintiff’s claim of infringement of 1,887,-058 would render it invalid because of double patenting and illegal extension of the protection granted by 1,744,389. The first question presented is whether plaintiff’s patent 1,887,058 for a spring assembly" }, { "docid": "1931780", "title": "", "text": "This court has jurisdiction of the parties and subject matter of this action. 28 U.S. C. § 1338(a) and § 1338(b). 2. The patentee of the patent in suit acquiesced in the Patent Office ruling that the patent in suit is a mere “improvement” over his earlier filed patent application (Serial JSTo. 366,537) which matured into John patent No. 2,320,607, by changing the designation of the patent in suit from “continuation-in-part” to an “improvement” and, therefore, plaintiff is estopped to assert that the patent in suit is entitled to an earlier filing date than March 8, 1941 (filing date of patent in suit). Schriber-Schroth Co. v. Cleveland Trust Co., 1940, 311 U.S. 211, 61 S.Ct. 235, 85 L.Ed. 132. The patentee in the patent in suit admitted in his earlier filed application (Serial No. 366,537) that flat expanded metal and woven wire are equivalents for ironing boards and this admission against interest cannot be denied. Jungerson v. Baden, 2 Cir., 1948, 166 F.2d 807, affirmed 1948, 335 U.S. 560, 69 S.Ct. 269, 93 L.Ed. 235; Lewis Blind-Stitch Mach. Co. v. Arbetter Felling Mach. Co., D.C.N.D.Ill.1913, 208 F. 992, affirmed 7 Cir., 1914, 219 F. 557; Monitor Stove Co. v. Williamson Heater Co., 6 Cir., 1924, 299 F. 1; Sarazin v. Wright Aeronautical Corporation, D.C.S.D.N.Y. 1944, 54 F.Supp. 244. 3. Failure of the Patent Office to consider the most pertinent prior art upsets the presumption of validity of the patent in suit. France Mfg. Co. v. Jefferson Electric Co., 6 Cir., 1949, 106 F.2d 605, certiorari denied 1940, 309 U.S. 657, 60 S.Ct. 471, 84 L.Ed. 1006; Lempco Products, Inc., v. Timken-Detroit Axle Co., 6 Cir., 1940, 110 F.2d 307, certiorari denied 1940, 311 U.S. 675, 61 S.Ct. 42, 85 L.Ed. 434; Cutler Mail Chute Co. v. Capitol Mail Chute Corporation, 2 Cir., 1941, 118 F.2d 63, certiorari denied 1941, 313 U.S. 580, 61 S.Ct. 1096, 85 L.Ed. 1537. A Claim 1 of the patent in suit is invalid for want of invention because. it merely involves the selection and substitution of flat expanded metal for other metallic surfaces having openings" }, { "docid": "2399136", "title": "", "text": "the issue of infringement is primary because the plaintiff must show that his rights have been invaded. But, unless he has a valid patent, he has no rights in the device which an infringement can invade. In a suit for trespass to land, the plaintiff must show both ,(a) 'that he has title to the land and (b) that the defendant has trespassed on that land; there is no rule that the court must first consider the defendant’s conduct; indeed, if either issue were to be regarded as primary, it might well be that of plaintiff's title. This is true because, often, the Patent Office was not thoroughly acquainted with the prior art. Cf. Western Auto Supply Co. v. American-National Co., 6 Cir., 114 F.2d 711, 713; Cutler Mail Chute Co. v. Capital Mail Chute Corp., 2 Cir., 118 F.2d 63, 64; Lempco Products v. Timken-Detroit Axle Co., 6 Cir., 110 F.2d 307, 310. The doctrine that quasi-judicial administrative determinations of fact are entitled to great weight has and should have little bearing on the findings of the Patent Office, because its hearings are' not public (interested third persons having, except to a limited extent in “interference” proceedings, no opportunity to be heard) and because of the nature of Patent Office procedures generally. See Hamilton, Patents and Free Enterprise (T. N. E. C. Monograph, No. 31) 123-127; Woodward, A Reconsideration of the Patent System as a Problem of Administrative Law, 55 Harv.L.Rev. 950 (1942). Cf. Rosenberg v. Groov-Pin Corp., 2 Cir., 81 F.2d 46, 47, 48. But cf. Williams Mfg. Co. v. United Shoe Machinery Corp., 6 Cir., 121 F.2d 273, 276. “Next, laws are made after long consideration, whereas decisions are given at short notice, which makes it hard for those who try the case to satisfy the claims of justice and expediency. The * * * decision of the lawgiver is not particular but prospective and general, whereas members of the [court] find it their duty to decide on definite cases brought before them. They will often have allowed themselves to be so much influenced by feelings of" }, { "docid": "1204930", "title": "", "text": "Walch and Caveney (PX 28, pg. 48). Defendant raises the defenses of invalidity and non-infringement; each is considered in separate parts of this opinion. II. VALIDITY. In general, in any action in which the validity of a patent is attacked, there is a strong presumption of the validity of the patent issued by the United States Patent Office. 35 U.S.C. § 282; Radio Corp. of America v. Radio Engineering Laboratories, Inc., 293 U.S. 1, 55 S.Ct. 928, 79 L.Ed. 163 (1934); Ric-Wil Co. v. E. B. Kaiser Co., 179 F.2d 401 (7th Cir. 1950), cert. den. 339 U.S. 958, 70 S.Ct. 981, 94 L.Ed. 1369 (1950) ; Colgate-Palmolive Co. v. Carter Products, Inc., 230 F.2d 855 (4th Cir. 1956), cert. den. 352 U.S. 843, 77 S.Ct. 43, 1 L.Ed.2d 59 (1956), reh. den. 352 U.S. 913, 77 S.Ct. 152, 1 L.Ed.2d 120 (1956); Printing Plate Supply Co. v. Crescent Engraving Co., 246 F.Supp. 654 (W.D.Mich.1965) (hereinafter Printing Plate). This presumption of validity is weakened if applicable prior art is not considered by the patent office. Harvey v. Levine, 322 F.2d 481, 484 (6th Cir. 1963); Aluminum Co. of America v. Sperry Products, Inc., 285 F.2d 911 (6th Cir. 1960), cert. den. 368 U.S. 890, 82 S.Ct. 142, 7 L.Ed.2d 87 (1961); France Mfg. Co. v. Jefferson Elec. Co., 106 F.2d 605 (6th Cir. 1939), cert. den. 309 U.S. 657, 60 S.Ct. 471, 84 L.Ed. 1006 (1940), reh. den. 309 U.S. 696, 60 S.Ct. 589, 84 L.Ed. 1036 (1940); Printing Plate, supra. See also Smith v. Hall, 301 U.S. 216, 57 S.Ct. 711, 81 L.Ed. 1049 (1937); Royal Patent Corp. v. Monarch Tool & Mfg. Co., 203 F.2d 299, 300 (6th Cir. 1953). The defendant argues that the presumption should not operate because three prior art references, the ones relied on by defendant at trial, were not considered by the Patent Office: (1) The prior manufacture and sale of the Taylor duct (hereinafter Taylor or Taylor duct); (2) The prior publication of Electrical Equipment and Industrial Laboratories in May 1954; and (3) The E. E. Franz Patent 2,712,916 (hereinafter Franz, or" }, { "docid": "6728346", "title": "", "text": "before the Westchester Dental Society and printed in the New York Journal of Dentistry in March, 1946 entitled “Caries Control by Chemical Prophylaxis” in which he submitted a formula containing urea for use in a liquid dentifrice. Dr. Henschel had been doing some work using a dentifrice with a very high urea content but found it irritating. The defendants maintain: A. That the plaintiff’s patents are invalid for the following reasons: 1. Henschel patent is entitled to priority over the plaintiff's patents. 2. Kesel is invalid on the law of the case. 3. Both of the plaintiff’s patents were anticipated by prior art. 4. The plaintiff’s patents lack utility. 5. Kesel is invalid on the ground of double patenting or illegal extension of monopoly. 6. Wach lacks evidence of synergism of any such combination of .urea and dibasic ammonium phosphate. B. Defendants do not infringe. There are certain applicable principles of law which must be recognized. A patent once issued is presumed to be valid. As to the defense of invalidity it is said, “ ‘[T]he burden of proof to make good the defense’ is ‘upon the party setting it up’ and ‘every reasonable doubt should be resolved against him’.” Radio Corporation of America v. Radio Engineering Laboratories, Inc., 293 U.S. 1, 7, 55 S.Ct. 928, 79 L.Ed. 163. The presumption is strengthened where the prior art relied upon to invalidate the patent was considered and rejected by the patent office, but this is not conclusive. Lewyt Corporation v. Health-Mor, Inc., 7 Cir., 181 F.2d 855, 857. It is, therefore, plain that the burden of establishing the invalidity of the plaintiff’s patent is upon the defendant. On the other hand the burden of proving infringement by a preponderance of the evidence is upon the plaintiff. Harries v. Air King Products Co., Inc., 2 Cir., 183 F.2d 158; Kalo Inoculant Co. v. Funk Bros. Seed Co., 7 Cir., 161 F.2d 981, reversed on other grounds 333 U.S. 127, 68 S.Ct. 440, 92 L.Ed. 588; 69 C.J.S., Patents, § 326, p. 1001. The first question with which this court is confronted, is" }, { "docid": "5428733", "title": "", "text": "that presumption. Plaintiff cites 35 U.S.C. § 282 which provides that a patent once issued “shall be presumed valid,” and that “[t]he burden of establishing invalidity . . . shall rest on the party asserting such invalidity.” It is true that the burden on an alleged infringer to rebut the presumption of validity is heavy. The defendant must introduce “clear and convincing” evidence in this regard, e. g., Moore v. Shultz, 491 F.2d 294, 298 (10th Cir.), and “every reasonable doubt should be resolved against him,” Mumm v. Jacob E. Decker & Sons, 301 U.S. 168, 171, 57 S.Ct. 675, 676, 81 L.Ed. 983. See also Radio Corp. of America v. Radio Engineering Laboratories, Inc., 293 U.S. 1, 7-8, 55 S.Ct. 928, 79 L.Ed. 163; Eimco Corp. v. Peterson Filters and Engineering Co., 406 F.2d 431, 434 (10th Cir.), cert. denied, 395 U.S. 963, 89 S.Ct. 2105, 23 L.Ed.2d 749; King-Seely Thermos Co. v. Refrigerated Dispensers, Inc., 354 F.2d 533 (10th Cir.). The rationale for this strong presumption is the expertise of the Patent Office in determining when the conditions for patentability have been satisfied. Neff Instrument Corp. v. Cohu Electronics, Inc., 298 F.2d 82, 86 (9th Cir.). See Mumm, supra. Nevertheless, the presumption flowing from issuance is rebuttable. When it is shown that a patent has issued “without consideration of prior art not submitted to the Patent Office, the basis for the presumption vanishes, and the presumption is significantly weakened.” Johns-Manville Corp. v. Cement Asbestos Products Co., 428 F.2d 1381, 1382 (5th Cir.). See also Norwood v. Ehrenreich Photo-Optical Industries, Inc., 529 F.2d 3, 9 (9th Cir.); Hadco Products, Inc. v. Walter Kidde & Co., 462 F.2d 1265, 1272 n. 33 (3d Cir.), cert. denied, 409 U.S. 1023, 93 S.Ct. 464, 34 L.Ed.2d 315; Deep Welding, Inc. v. Sciaky Bros., Inc., 417 F.2d 1227, 1234 (7th Cir.), cert. denied, 397 U.S. 1037, 90 S.Ct. 1354, 25 L.Ed.2d 648. When the Patent Office has failed to take into account prior art which would be relevant to a patentability determination, it cannot be said that that agency has fully brought its" }, { "docid": "11184523", "title": "", "text": "is limited to the invention described in the claims when read in the light of the specifications and drawings, but the claims limit the boundaries of the patent and may not be enlarged by the specifications. In other words, the specifications may explain, but may not expand or enlarge, the patent claims. Schriber-Schroth Co. v. Cleveland Trust Co., 311 U.S. 211, 312 U.S. 654, 61 S.Ct. 235, 85 L.Ed. 132; Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 37 S.Ct. 416, 61 L.Ed. 871; Hutzler Bros. Co. v. Sales Affiliates, Inc., 4 Cir., 164 F.2d 260. Furthermore, DeBurgh, the patentee, is presumed to have known and is chargeable with knowledge of everything disclosed by the prior art in the field of conveyer systems and of all devices in that field which have been in prior public use. Zephyr American Corporation v. Bates Mfg. Co., 3 Cir., 128 F.2d 380; Cutler Mail Chute Co. v. Capitol Mail Chute Corporation, 2 Cir., 118 F.2d 63; Detroit Stoker Co. v. Brownell Co., 6 Cir., 89 F.2d 422, 424. The law has long been established and is restated in the new Patent Act of 1952, 35 U.S.C. § 282, that the burden is upon the defendants to establish their claim of invalidity. Furthermore, that burden must be sustained by clear, satisfactory, and convincing evidence. Crosley Corporation v. Westinghouse Electric & Mfg. Co., 3 Cir., 152 F.2d 895; 2 Walker on Patents, Deller’s Ed., § 276, pp. 1272, 1273. However, it has been held that the new Patent Act, 35 U.S.C. § 1 et seq., did not change the tests for determining patentability, and it still remains for the court to determine whether, within the meaning of the statute conferring patent monopoly, there is invention and, therefore, patentability. General Motors Corp. v. Estate Stove Co., 6 Cir., 203 F.2d 912, 915 (opinion on rehearing). In the case of Application of O’Keefe, 202 F.2d 767, 771, 40 C.C.P.A., Patents, 879, the court said: “The Patent Act of 1952, * * * which took effect January 1, 1953, has apparently neither raised nor" } ]

[ { "docid": "23186575", "title": "", "text": "questions put by the General Counsel and Employer’s counsel, limiting the scope of some cross examination, the nature of the Examiner’s discussion as to credibility resolution of one of the Employer’s key witnesses’ testimony, and the like. If there were errors, they were simply that and nothing more. They certainly did not measure up to proof of a general attitude of bias, partiality or injudicious behavior. This brings us to the merits. We see no need to recite the facts in detail as to the occurrences found to constitute violations of § 8(a) (1). They all grow out of the intense preelection campaign preceding the election of August 10,1961, which the complaining union lost. As was its legal right, NLRB v. McGahey, 5 Cir., 1956, 233 F.2d 406, 409, the Employer made no bones about its opposition to the Union. This lead off for top management was a preelection speech made by George Trippe, Secretary-Treasurer of Employer, delivered to the assembled employees. It was neither charged nor found that the speech, as such, was a violation of the Act. The Board, with ample justification did regard this as an emphatic statement of anti-union attitude. In this sense it is properly “background” against which to measure statements, conduct, and the like made by other management spokesmen, especially in terms of the interpretation which the employees reasonably could put on such actions. More specifically, this would bear on the question whether, from the listeners’ point of view, these statements by subordinate management constituted forbidden coercion, threats, or intimidation. We may assume, as Employer asserts, that there is a good deal of basis for the impression that management was genuinely anxious that its anti-union attitude not manifest itself in an illegal way through subordinate management representatives. But in connection with an unfair labor practice charge (and not, for example, a post-decree contempt for “willful” violation by an employer itself), an employer is pretty generally bound by what its spokesmen do and say. When, as done here, an employer sets out to campaign against a union, one of the risks is that out of" } ]

[ { "docid": "2608414", "title": "", "text": "union activities untrammeled by the fear of possible employer economic coercion or other forms of retaliation. See, e. g., N. L. R. B. v. Community Motor Bus Company, 335 F.2d 120, 122 (4th Cir. 1964); Hendrix Manufacturing Company v. N. L. R. B., 321 F.2d 100, 104-105 (5th Cir. 1963); N. L. R. B. v. United Wire and Supply Corporation, 312 F.2d 11, 13 (1st Cir. 1962); N. L. R. B. v. Des Moines Foods, Inc., 296 F.2d 285, 287 (8th Cir. 1961); N. L. R. B. v. Hoffman-Taff, Inc., 276 F.2d 193, 198 (8th Cir. 1960). SECTION 8(a) (1) — PRE-ELECTION AND POST-ELECTION BENEFITS. The Board found that Respondent’s conferral of economic benefits during the election period in the form of increased holiday time on December 24, 1964 and December 31, 1964 violated Section 8(a) (1) of the Act. There is no doubt that the granting or announcement of economic benefits during a union organizational campaign or during the pendency of a representation election constitutes unlawful interference with the employees’ protected right to organize. National Labor Relations Board v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964). We are convinced, however, that the benefits conferred by Respondent here fall far short of the economic benefits condemned in Exchange Parts Co., supra. In the latter case, one of the economic benefits found to be a violation of the Act was an extra “floating holiday,” which would be taken on the employees’ respective birthdays. In questioning the propriety of such benefits, the Court stated: “We think the Court of Appeals was mistaken in concluding that the conferral of employee benefits while a representation election is pending, for the purpose of inducing employees to vote against the union, does not ‘interfere with’ the protected right to organize. “ * * * We have no doubt that it [Section 8(a) (1)] prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to" }, { "docid": "936506", "title": "", "text": "an Iowa pharmacy corporation, having a plant in Madrid, Iowa, doing a national mail order drug prescription business. Its work force con sisted of local housewives and school girls, in addition to licensed pharmacists. Dissatisfied with their wages and working conditions, certain of the employees sought improvement of their situation and, in early March of 1971 a union organizational campaign was commenced at the plant. Federal’s response was a program of unlawful obstruction and coercion. The Board found in agreement with its trial examiner that Employer violated § 8(a)(1) of the National Labor Relations Act by coercively interrogating its employees, interfering with employee meetings, threatening its employees, with discharge, discriminatorily changing work rules, and promising benefits as an inducement to abandon support of the Union; that Employer violated § 8(a)(3) and (1) of the Act by discharging ten employees in order to discourage pro-Union activities; and that it violated § 8(a)(5) and (1) of the Act by refusing to bargain with the Union. The Board concluded that Employer’s violations “not only precluded a fair election, but were of such a pervasive and aggravated character . that an order directing the Company to bargain with the Union [was] necessary to repair the unlawful effects.” N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). Federal Prescription Service, Inc. v. N. L. R. B., 496 F.2d 813, 815 (8th Cir. 1974) (Footnote in original). We will here consider certain incidents connected with the strike? which incidents were triggered by the discharge of ten employees prior to the election. We described the following sequence of events, in essential part, in our previous opinion, stating therein that: On April 2, 1971, ten employees were terminated. The following day a strike commenced in protest of the discharges. A petition for a temporary restraining order against Mass [sic] picketing was subsequently filed by Employer in state court, and an order granting the same was issued on April 8. Thereafter, on one occasion, mass picketing occurred, principally by husbands of employees and by employees of other plants represented by" }, { "docid": "15733137", "title": "", "text": "substantial evidence on the record as a whole. The decision of the Administrative Law Judge and the order of the Board on this part of the case is reversed and enforcement thereof is denied. IV. Alleged Threats to Close the Plant, to Lay Off Employees and to Discontinue Benefits if the Union won, and Promises of Better Wages if the Union Lost. This phase of the trial was a one-sided spectacle in favor of the Union and against the Company. The Administrative Law Judge allowed the Union to introduce into evidence all of the speeches, statements, circulars, and campaign material made and distributed by the Company, but, on the other hand, refused to admit into evidence, with one exception, the circulars, statements, cartoons, and campaign materials distributed by the Union. In this connection, the Company offered and sought to introduce Exhibits 5(A), 5(B), 5(C), 5(D), 5(E), 5(F), 5(G), 5(H), 5(1), 5(J), 5(K), 5(L), 5(M), 5(N), and 5(0), into evidence, consisting of statements, cartoons, circulars, cards, and miscellaneous election campaign propaganda and material circulated and distributed by the Union during the election campaign. The Administrative Law Judge refused to allow any of these exhibits to be introduced into evidence, except Exhibit 5(J) which was the red dot card described above. In this one-sided state of the record it is impossible for this Court to determine the propriety of the campaign material distributed by the Company and statements made by its officials during the campaign. It is well settled that the Company is entitled to have its statements and campaign material considered in connection with all of the statements and material made and distributed by both sides during the campaign. See O’Sullivan Industries, Inc., 171 N.L.R.B. 1545 (1968); and Claymore Mfg. Co., 146 N.L.R.B. 1400 (1964). It has repeatedly been held that language used by parties involved in a union representation campaign must not be isolated nor analyzed in a vacuum, but must be considered in light of the circumstances existing when such language was written or spoken. N. L. R. B. v. Big Three Industrial Gas & Equipment Co., 441 F.2d" }, { "docid": "21186853", "title": "", "text": "anti-union animus and totally free of any attempted interference with union organizational efforts — a conclusion that the remark constituted a threat of economic reprisal appears unrealistic. Therefore, we hold that the Board and the trial examiner erred in making the inference' of coercion, and we decline to enforce that part of the order proscribing threats of economic reprisal. In addition to the above conclusions, the trial examiner found one instance in which Patterson threatened DaVila with discharge because of his union activity. This incident occurred in December 1961, the day after the union meeting mentioned above. The conversation was held inside the produce rack at the Galveston store, where DaVila was wrapping lettuce. Undisputed testimony established that Patterson appoached DaVila and inquired whether he had rather work for the Retail Clerks or Weingarten. When DaVila answered that he had rather work for Weingarten, Patterson said: “Well, I heard you been organizing, passing out literature.” DaVila asked how Patterson had obtained this information, and Patterson “just walked off.” Under the circumstances, the trial examiner properly concluded that this statement was violative of § 8(a) (1). Unlike the interrogations and alleged threat of reprisal which are discussed above, this statement, even when considered in isolation from its context, conveys a threat of discharge. Furthermore, the inference of coercion is strengthened by the fact that the statement followed on the heels of the equivocal inquiry of the day before. Although we do not feel that Patterson’s earlier inquiries and expressions of opinion about the union can be deemed a violation of the Act, it is nevertheless true-that by the time this alleged threat of' discharge was made, Patterson had made-it clear to the employees in the Galveston-store that he was concerned about the-union’s successes in its organizational campaign and that he disapproved of unionization. The record indicates that. Patterson was responsible for the hiring and discharge of employees in the Galveston store. In these circumstances, we think that portion of the Board’s order which requires respondent to cease and desist from threatening employees with discharge because of their union activity should be" }, { "docid": "15740279", "title": "", "text": "for the unworthy. This is especially true in cases such as that of Miranda and Garza where the failings which led to the disciplinary actions surfaced before the company became aware of union activities. The Board’s findings that TRW violated § 8(a)(3) in suspending Miranda and terminating Garza cannot be sustained. Section 8(a)(1) Violations Section 8(a)(1) of the National Labor Relations Act makes it unlawful for an employer to “interfere with, restrain, or coerce” employees in the exercise of their rights guaranteed under § 7 of the Act. The Board found several § 8(a)(1) violations in the present case, all of which can be grouped into two categories — threats and coercive interrogations. As with the § 8(a)(3) charges, we find that the Board’s determinations are not supported by substantial evidence. A. Threats It is well settled that a threat of reprisal for union activity is a violation of the Act. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). On the other hand, so long as an employer does not threaten an employee with reprisal for union activity the employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union. Id. at 618, 89 S.Ct. at 1942. Further, in determining whether a statement is an impermissible threat we recognize that language used by the parties involved in a union representation campaign must not be isolated nor analyzed in a vacuum, but must be considered in light of the circumstances existing when such language was spoken. N.L.R.B. v. Big Three Industrial Gas & Equipment Co., 441 F.2d 774, 777 (5th Cir. 1971). The Board found that certain statements made by supervisor Eidukonis to Miranda were impermissible threats. The first occurred on July 19, the date of the union election, when Eidukonis told Miranda, “All along I’ve told you that there’s no money here and that we ain’t going to negotiate with the IUE or any other union.” Miranda replied that the day was not over, and that Eidukonis’ comment would" }, { "docid": "8683733", "title": "", "text": "328 (4th Cir.1997), the charge stated simply that, during an organizing drive, the employer “made threats and promises to its employees to destroy their rights under the act.” The complaint went much further, detailing three categories of threats made by the employer’s president. We held that because the specific allegations involved the same legal theory, arose from the same sequence of events, and called for the same legal defenses, they were “closely related” to the general one asserted in the charge. There is a common thread here. Rock Hill, FPC Holdings, and CWI of Maryland recognize that a union organizing campaign is just that — a campaign, and not simply a series of random, uncoordinated incidents. Likewise, an employer’s campaign against organization, be it lawful persuasion, unlawful coercion, or some combination of both, is a sequence of closely related events. See Don Lee, 145 F.3d at 845 (complaint based on charge of refusal to bargain in good faith related to “entire course of collective bargaining” and could be amended to include new allegations of employer misconduct during that course); Truck Drivers & Helpers Union, Local 170 v. NLRB, 993 F.2d 990, 1001 (1st Cir.1993) (“It is sufficient that both charges are part of the same effort or crusade against the union.”); NLRB v. Overnite Transportation Co., 938 F.2d 815 (7th Cir.1991) (threats during successful organizing campaign and subsequent refusal to bargain were part of single anti-union crusade; amendment permitted). Today this common thread is cut. III. Because I would permit the amendment of the complaint, I must address whether the Board’s finding that Harris violated § 8(a)(1) by threatening to close the store is supported by substantial evidence. I easily conclude that it was. First of all, there is no doubt that the statements, if made, violated the Act. See NLRB v. Grand Canyon Mining Co., 116 F.3d 1039, 1044 (4th Cir.1997); NLRB v. Nueva Engineering, 761 F.2d 961, 966 (4th Cir.1985). The only issue is the factual one: whether the threats were made. Burris and Adgerson each testified that they were; Harris and George Fassitt (a Sam’s co-manager who" }, { "docid": "9712285", "title": "", "text": "the firings, we briefly recount them here. An employer violates the Act when he withholds a previously scheduled wage increase after a union commences a representation campaign. GAF Corporation v. NLRB, 488 F.2d 306, 308-309 (2d Cir.1973); NLRB v. Hendel Mfg. Co., Inc., 483 F.2d 350, 352-53 (2d Cir.1973). Thus, Feinberg’s announcement violated Section 8(a)(1). Far more disturbing than the wage deferral, however, were the events that occurred after the election. Although an employer may ask narrowly-tailored and relevant questions of employees when defending against objections or unfair labor practice charges, he cannot ask employees whether they had signed union authorization cards when the question was so immaterial to the issue. Moreover, Bernbach should have known the clearly coercive effect of this interrogation. In his reply brief, Bernbach asserts two justifications for his conduct: the questioning occurred after the election and he elicited affirmations of union support to demonstrate that even the “converted” believed the company had not engaged in improper conduct. He describes these infractions as “technical in nature.” We are not so easily comforted. It is axiomatic that the rights enshrined in the Act do not evaporate after an election. Bernbach offers no showing that the question was relevant to any dispute before the Board. It is particularly distressing that a member of the bar would actively engage in conduct so clearly in derogation of our labor laws. We note in this regard that “lawyer-consultants” who sometimes skirt the boundaries of questionable conduct have increasingly become involved in com-batting union organizing drives during the last decade. See generally Note, The Liability of Labor Relations Consultants for Advising Unfair Labor Practices, 97 Harv.L.Rev. 529 (1983). Bernbach, at the very least, should have exercised greater caution. These transgressions form a backdrop to the two discharges at issue. The company asserts it never knew that Restrepo and Orrego were involved in union activities. Also, it claims it had legitimate reasons for dismissing them. Based on circumstantial evidence including the demonstration of anti-union animus in withholding scheduled pay raises and interrogating employees regarding their union affiliation, the Board found the company’s reasons" }, { "docid": "21186854", "title": "", "text": "concluded that this statement was violative of § 8(a) (1). Unlike the interrogations and alleged threat of reprisal which are discussed above, this statement, even when considered in isolation from its context, conveys a threat of discharge. Furthermore, the inference of coercion is strengthened by the fact that the statement followed on the heels of the equivocal inquiry of the day before. Although we do not feel that Patterson’s earlier inquiries and expressions of opinion about the union can be deemed a violation of the Act, it is nevertheless true-that by the time this alleged threat of' discharge was made, Patterson had made-it clear to the employees in the Galveston-store that he was concerned about the-union’s successes in its organizational campaign and that he disapproved of unionization. The record indicates that. Patterson was responsible for the hiring and discharge of employees in the Galveston store. In these circumstances, we think that portion of the Board’s order which requires respondent to cease and desist from threatening employees with discharge because of their union activity should be enforced. The respondent attempts to explain away Patterson’s threat to DaVila by asserting that Patterson was merely attempting to ascertain whether DaVila intended to quit his job so that he could work for the union. Shortly before this-conversation occurred, another employee who had been a member of the organizing committee in the Galveston store had left his employment to accept a full-time job with the union. However, the evidence does not furnish any additional support which would indicate that Patterson was referring to the other employee’s situation or that DaVila so understood Patterson’s remark. The trial examiner, who had an opportunity to observe the demeanor of the witnesses, properly rejected this explanation as unconvincing. Although we have concluded that there was only one incident which constituted a violation of the Act, we do not consider the violation so isolated that a Board order should not issue. The order requires posting only in respondent’s Galveston store, and the unlawful threat was made by the store manager to an employee who had been quite active in his" }, { "docid": "15733138", "title": "", "text": "by the Union during the election campaign. The Administrative Law Judge refused to allow any of these exhibits to be introduced into evidence, except Exhibit 5(J) which was the red dot card described above. In this one-sided state of the record it is impossible for this Court to determine the propriety of the campaign material distributed by the Company and statements made by its officials during the campaign. It is well settled that the Company is entitled to have its statements and campaign material considered in connection with all of the statements and material made and distributed by both sides during the campaign. See O’Sullivan Industries, Inc., 171 N.L.R.B. 1545 (1968); and Claymore Mfg. Co., 146 N.L.R.B. 1400 (1964). It has repeatedly been held that language used by parties involved in a union representation campaign must not be isolated nor analyzed in a vacuum, but must be considered in light of the circumstances existing when such language was written or spoken. N. L. R. B. v. Big Three Industrial Gas & Equipment Co., 441 F.2d 774 (5 Cir. 1971). Moreover, this Court has not only recognized the right of a party to respond to campaign propaganda used by the opposition, but has recognized that the responsive nature of campaign language is the type of evidence which is important in viewing the circumstances as they existed when the controversial language was used. N. L. R. B. v. Collins & Aikman Corp., 338 F.2d 743 (5 Cir. 1964); N. L. R. B. v. Big Three Industrial Gas & Equipment Co., supra. And thus, while it is certainly not the intention of this Court to infer that responsive language may not, in a proper case, be found to be coercive and to be a threat of anti-union discrimination, we are compelled to hold that in the case before us the examiner committed error when he refused to admit into evidence the campaign literature offered by the Company to establish the responsive nature of its own language, and by reason thereof, we are unable to determine whether the material distributed by the Company and" }, { "docid": "17357415", "title": "", "text": "that the statement materially affected the election. To overturn the election on this point, the Company would need to show that great numbers of employees were aware of Hicks’ statement, that great numbers of these employees lacked independent knowledge of the matter, that great numbers of employees in fact signed cards after the statement, and that, despite this widespread acceptance of the false statement made two weeks before the election, the Company had a valid excuse for not responding. Each of these points was susceptible to some offer of proof by the Company during the Regional Director’s investigation, yet none was forthcoming. In these circumstances, we decline to deny enforcement because of the Board’s decision not to require a hearing on this question. C. The Racial Orientation of the Campaign. The general standards enunciated at the outset of this section are subject to exception in at least one important situation relevant to this case. When racial considerations have been injected into a representation campaign by the party which prevails in the election, this Court in some circumstances will cast a burden on that party to establish that the racial message was truthful and germane, “and where there is doubt as to whether the total conduct of such party is within the described bounds, the doubt will be resolved against him.” N.L.R.B. v. Bancroft Mfg. Co., supra, 516 F.2d at 440-41, quoting Sewell Mfg. Co., 1962, 138 N.L.R.B. 66, 71-72. From Bancroft and the authorities relied upon therein, it appears that the major concern in this regard is that workers of one race not be persuaded to vote for or against a Union on the basis of invidious prejudices they might have against individuals of another race. Clearly, some statements regarding the effect that a Union might have on the workers of a particular race can be acceptable. As with the objection relating to the statement about signing cards, there was never a formal hearing on this issue of racial taint. Thus even if we conclude that the facts found by the Board were not sufficient for the election to be" }, { "docid": "8683732", "title": "", "text": "mentioned above, Harris’s high rank and brazenness in making repeated threats in public and in front of union organizers make it more, and not less, likely that the coercive actions of lower level managers were related actions rather than products of individual initiative. We have certainly upheld similar amendments in the past. For example, in Rock Hill Telephone Co. v. NLRB, 605 F.2d 139, 142 (4th Cir.1979), we held that an amendment was proper simply on the basis that “all of the allegations ... concern the Company’s response to the Union’s organizing effort.” In FPC Holdings the employer reprimanded employees for meeting to “discuss pay” at a restaurant during lunch. These employees later decided to seek union representation; soon thereafter, two of them were fired. The original complaint alleged only that the terminations were unlawful, but at the hearing the complaint was amended to. assert a § 8(a)(1) violation arising from the reprimands. We upheld the Board’s conclusion that the violations were “closely related.” Finally, in NLRB v. CWI of Maryland, Inc., 127 F.3d 319, 328 (4th Cir.1997), the charge stated simply that, during an organizing drive, the employer “made threats and promises to its employees to destroy their rights under the act.” The complaint went much further, detailing three categories of threats made by the employer’s president. We held that because the specific allegations involved the same legal theory, arose from the same sequence of events, and called for the same legal defenses, they were “closely related” to the general one asserted in the charge. There is a common thread here. Rock Hill, FPC Holdings, and CWI of Maryland recognize that a union organizing campaign is just that — a campaign, and not simply a series of random, uncoordinated incidents. Likewise, an employer’s campaign against organization, be it lawful persuasion, unlawful coercion, or some combination of both, is a sequence of closely related events. See Don Lee, 145 F.3d at 845 (complaint based on charge of refusal to bargain in good faith related to “entire course of collective bargaining” and could be amended to include new allegations of employer" }, { "docid": "6440971", "title": "", "text": "PER CURIAM. This is a petition by the National Labor Relations Board for enforcement of its order dated April 21, 1972 and reported at 196 N.L.R.B. 72. The complaint alleged “ . . . that the respondent violated Section 8(a)(1) when on June 29, [1971] it announced and granted wage increases and three paid holidays to its employees for the purpose of thwarting the Union’s organizational campaign and that respondent further violated Section 8(a)(1) when on July 20, [1971] it engaged in surveillance of its employees’ union activities.” The Trial Examiner exonerated respondent on the wage increase charge, but, with respect to the surveillance allegation, he found that five female employees from respondent’s Chattanooga plant were on their 30 minute lunch break and sitting on the church steps across the street from the plant listening to a union organizer when Mr. Romita, the assistant to the president, walked up and said he was there \"to see that you don’t tell these girls a bunch of lies.” Romita then intimated that this union had caused the closing of the two factories where he had previously been employed. From these and other facts, the Trial Examiner found that “[w]hether or not properly characterized as ‘surveillance’, Romita’s conduct which was designed to, and had the effect of, disrupting and interfering with Allen’s [an organizer for the International Ladies’ Garment Workers’ Union] attempt to meet with the employees and freely discuss with them union representation constituted, I find, unlawful interference with the employees’ Section 7 rights and, as such, was violative of Section 8(a)(1) of the Act.” The Board issued a cease and desist order and required the posting of notices. Upon review and consideration of the entire record, and having in mind the deference to be paid to the expertise of the Board, we hold that the weight of evidence supports the Board’s finding of an 8(a)(1) violation. We hold further that the Board’s order is appropriate to remedy the violations found to have occurred. The respondent’s other major contention is that it was denied procedural due process because it was found guilty" }, { "docid": "11856977", "title": "", "text": "on a number of occasions interrogated employees about their or other employees’ union activities or leanings. And finally, such testimony brought to light the various instances of supervisory solicitation of employees to withdraw from the union In evaluating the above testimony the Trial Examiner took into consideration the context in which the several statements were made, and the demeanor of the various witnesses. He also considered the fact that since there were 600 to 700 employees in respondent’s plant, the acts complained of could be found to be so isolated as to call for no remedial action; but in view of the fact that the testimony revealed eight separate incidents involving six different supervisors and constituting twelve distinct violations, such acts were not found to be “isolated.” After considering all of the foregoing the Board concluded that anti-union animus was self-evident in the conduct of the supervisors and this conduct, interrogations, threats, and solicitations, was directed at the employees’ self-organizational efforts and, as such, constituted interference with, and restraint and coercion of employees in the exercise of their rights under Section 7 of the Act. Respondent has objected to the Board’s decision on the grounds that neither the words used nor the circumstances surrounding the alleged unlawful conversations amounted to interference, restraint or coercion, but are protected statements under Section 8(c) of the Act. It also argues that the statements were casual inquiries or opinions and too inconsequential in their impact to constitute a violation or warrant a Board remedy. We have carefully reviewed the entire record. The testimony of the employees as to the statements made by respondent is essentially uncontradicted, and these statements quite clearly constituted unlawful interrogation, threats and solicitation and were not casual and innocuous conversations. These acts took place at a time when the union was undergoing a renewed effort towards organization of respondent’s employees and were specifically aimed at coercing certain employees to abandon their organizational drive. As such they exceed the limits of Section 8(c). We therefore conclude that there is substantial evidence on the record as a whole to support the Trial" }, { "docid": "7190857", "title": "", "text": "during a union campaign, an employer need only continue to operate his business as if the union were not on the scene.” Doubtless the Board is confident of its ability to determine true consistency, but there is nevertheless some reason for concern, considering the subjective nature of the merit increase decision, and the deference which must be shown to factfinding by the Board. The Tenth Circuit dealt with this problem in Plasticrafts, Inc. v. N.L.R.B., 586 F.2d 185 (10th Cir.1978). The facts before the court apparently permitted more completely objective determination of the regularity of past practices than was true in Newberry, or, with respect to amount, in the case before us. The court indicated a test, however, which would depend “not only on the existence of an established practice but also on whether it would be clearly apparent to an objectively reasonable employer.” 586 F.2d at 188. In the case before us wage review during the first 90 days of employment was regular and universal although the amount of any increase was discretionary. We think that under the Plasticrafts test, the existence of an established practice during the first 90 days would be clearly apparent to an objectively reasonable employer. And in the absence of independent evidence of improper motivation, we see no substantial risk that decisions on merit increases during the campaign within employees’ first 90 days would later be found to interfere with a choice as to representation. Reviews and increases at later stages occurred, but were so highly discretionary that no real pattern was established. Although the ALJ referred in his finding to the Company’s “blaming” the union for the suspension, the relevant references by representatives of management to the union campaign were no more than a natural way of describing the period during which raises were suspended. They were comparable in substance to remarks not found to have interfered with protected rights in other decisions cited herein. We see no basis for the finding of a § 8(a)(3) unfair labor practice. Accordingly, we will enforce paragraphs 1(a) and 2(c) and the relevant notice requirements of" }, { "docid": "11362144", "title": "", "text": "away a lot of the privileges then enjoyed by the employees. McNair did not testify but the respondent argues that he was not a supervisory employee within the meaning of the Act. However, the examiner found that in view of his duties of inspecting the workshop and handing out work assignments, he was a supervisory employee under the Act. We agree with this determination. N. L. R. B. v. Chautauqua Hardware Corp., 2 Cir., 192 F.2d 492, 494. It was also found that the foreman John LeCotta had stated to an employee that a union would never succeed in organizing the respondent’s plant and if one did “* * * it would cost [the respondent] the last dime they had.” The testimony supporting this was not denied. The trial examiner found further that the statement by Superintendent 'St. Pierre made after inquiries as to whether an employee was in favor of the union to the effect “Well, others had been dismissed from this place and ■others can be dismissed from this place -» * was evidence of threats and coercion by the employer. Although the testimony supporting this was conflicting we give support to the trial examiner, particularly where, as here, the issue is one of credibility. It is to be noted that all these instances of coercion took place at the beginning and during an organizational campaign by the union and cannot be viewed as isolated remarks unconnected with union activities. The next charge was the discriminatory discharge of Miss Chilson in violation of Section 8(a)(3). It is argued that the respondent had just cause for firing Miss Chilson because of her poor absentee record, but the company did not discharge her because of that record even though it might have furnished a sufficient ground. There is ample evidence to support the examiner’s finding that the respondent in fact discharged her for her union activities. She was one of the employees who instigated the union’s organizational campaign in the respondent’s plant and regularly attended its meetings. Her interest in the union was known by the respondent through its vice-president" }, { "docid": "21186855", "title": "", "text": "enforced. The respondent attempts to explain away Patterson’s threat to DaVila by asserting that Patterson was merely attempting to ascertain whether DaVila intended to quit his job so that he could work for the union. Shortly before this-conversation occurred, another employee who had been a member of the organizing committee in the Galveston store had left his employment to accept a full-time job with the union. However, the evidence does not furnish any additional support which would indicate that Patterson was referring to the other employee’s situation or that DaVila so understood Patterson’s remark. The trial examiner, who had an opportunity to observe the demeanor of the witnesses, properly rejected this explanation as unconvincing. Although we have concluded that there was only one incident which constituted a violation of the Act, we do not consider the violation so isolated that a Board order should not issue. The order requires posting only in respondent’s Galveston store, and the unlawful threat was made by the store manager to an employee who had been quite active in his advocacy of the union. For the foregoing reasons, paragraphs 1(c) and 2(a) and (b) of the Board’s order will be enforced. . The instant case is factually distinguishable from N. L. R. B. v. HarbisonFischer Mfg. Co. (5 Cir. 1962), 304 F.2d 738. In that case some of the interrogations took place at the home of an employee, the supervisor told another employee that the company’s president disapproved of the union, and there was evidence of close surveillance of union activities generally. Such a background of coercion is not revealed by the evidence in the instant case. Also, there is no evidence of a pattern of concerted •company action to interrogate employees as to union activity and attitudes similar to that present in Martin Sprocket and Gear Co. v. N. L. R. B. (5 Cir. 1964), 329 F.2d 417. We feel the inquiries in the instant ease are more nearly comparable to those held not to violate § 8(a) (1) in N. L. R. B. v. Fontaine-bleau Hotel Corp. (5 Cir. 1962), 300 F. 2d" }, { "docid": "2608413", "title": "", "text": "an unlawful interrogation. This isolated form of interrogation, we believe, was insufficient to violate the rights of Respondent’s employees under Section 8(a) (1). In summary, we believe that the Board’s finding of a coercive interrogation is not supported by substantial evidence in the record. We are not prepared, however, to accord similar protection for the more aggravated demeanor of Miss Fitch. Her conduct, we feel, inhibited the employees’ pursuit of their union activities. Miss Fitch attempted to verify on the Company’s behalf the names of those employees who had attended a previous union meeting. The evidence relating to this charge fully supports the finding that Angus and the three other employees to whom he disclosed the existence of the list of Union adherents were left with the clear impression that Respondent was keeping its employees’ union activities under surveillance. An impression of surveillance might well instill in the employee a fear of reprisal from the employer. Such conduct is violative of Section 8(a) (1) as it could inhibit the right of employees to pursue their union activities untrammeled by the fear of possible employer economic coercion or other forms of retaliation. See, e. g., N. L. R. B. v. Community Motor Bus Company, 335 F.2d 120, 122 (4th Cir. 1964); Hendrix Manufacturing Company v. N. L. R. B., 321 F.2d 100, 104-105 (5th Cir. 1963); N. L. R. B. v. United Wire and Supply Corporation, 312 F.2d 11, 13 (1st Cir. 1962); N. L. R. B. v. Des Moines Foods, Inc., 296 F.2d 285, 287 (8th Cir. 1961); N. L. R. B. v. Hoffman-Taff, Inc., 276 F.2d 193, 198 (8th Cir. 1960). SECTION 8(a) (1) — PRE-ELECTION AND POST-ELECTION BENEFITS. The Board found that Respondent’s conferral of economic benefits during the election period in the form of increased holiday time on December 24, 1964 and December 31, 1964 violated Section 8(a) (1) of the Act. There is no doubt that the granting or announcement of economic benefits during a union organizational campaign or during the pendency of a representation election constitutes unlawful interference with the employees’ protected right to organize." }, { "docid": "9821246", "title": "", "text": "analysis to the facts presented in the case sub judice we conclude that Delco’s acts of solicitation were not violative of Section 8(a)(1). We reach this conclusion on the basis of the reasons previously discussed with respect to our conclusion that Delco did not impermissibly interrogate its employees. See 1309-1311, ante. Neither Independent, Inc. v. NLRB, 5 Cir. 1969, 406 F.2d 203 nor Hendrix Mfg. Co. v. NLRB, 5 Cir. 1953, 321 F.2d 100, upon which the Board and the Union now rely, offers any solace to their position that the isolated instances of solicitation under consideration were impermissible. In Indepen dent, Inc. we observed that there was “abundant evidence . . . that the company waged an aggressive campaign both to entice employees to side with the company and to frighten employees away from the blandishments of the Union.” 406 F.2d at 205. Similarly in Hendrix Mfg. Co., which was decided prior to Sunnyland Packing Company, we held that the Board could find impermissible the acts of employer solicitation “[A]s a part of the whole pattern and practice” which included unlawful interrogation, threats of economic reprisals, promises of benefits to influence employee sympathies, and creating an impression of surveillance among the employees. 321 F.2d at 106. We expressly eschewed making a “hard and fast ruling and content ourselves merely with saying that in these circumstances it was a permissible element of the cease and desist order.” Id. Enforcement therefore is denied with respect to that part of the Board order based upon a finding of unlawful solicitation. C. Threats to Discontinue Benefits In NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), the seminal case concerning when an employer’s statement concerning the consequences of unionization is proscribed, the Supreme Court formulated a “prediction” vs. “threat” test. Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a “threat of reprisal or force or promise of benefit.” He may" }, { "docid": "11686911", "title": "", "text": "including paid holidays, sick leave, and rights to participate in profit-sharing plans, accruing to older employees. On these facts the Trial Examiner found violations of Sections 8(a) (1) and 8(a) (3) of the Act, and the Board adopted her proposed order, which it now seeks to enforce. We will discuss separately the various practices found unlawful. . I. Threats of Plant Closure or Removal. The finding that respondent violated § 8(a) (1) of the Act by threatening to close or move the plant in the event of a union victory in the election is primarily based on the statement made by Foreman Torriere to employee Doce. Although Torriere denied making the statement, the Trial Examiner found Doce to be the more forthright witness and believed his testimony rather than that of Torriere. The issue was thus essentially one of credibility, “an issue for the Trial Examiner and the Board to resolve.” E. g., Mak-All Mfg. Inc. v. NLRB, 331 F.2d 404, 405 (2 Cir. 1964). There was evidence of general talk about a possible closing or removal of the plant, but Torriere’s statement, if believed to have been a threat, was unlawful whether it initiated the talk or merely added to the ferment. This case points up that unless employers are prepared to have inferences adverse to them drawn from the activities of their supervisors they must take care to instruct their supervisors not to engage in idle gossip of this sort and not to act so as to feed the flames of such rumors during a representative campaign. It may well be that Torriere had no intention of threatening or intimidating Doce, but the effect of his statement determines the consequences of his act, and the administrative tribunal found that the statement was of the sort that might have inhibiting effects and was therefore an unfair labor practice. II. Interrogation of Employees, In evaluating questions arising from the interrogation of employees, the issue is whether the activity is “calculated to frustrate the union’s organization campaign by installing fear of reprisals in the employees.” NLRB v. L. E. Farrell Company," }, { "docid": "15740280", "title": "", "text": "does not threaten an employee with reprisal for union activity the employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union. Id. at 618, 89 S.Ct. at 1942. Further, in determining whether a statement is an impermissible threat we recognize that language used by the parties involved in a union representation campaign must not be isolated nor analyzed in a vacuum, but must be considered in light of the circumstances existing when such language was spoken. N.L.R.B. v. Big Three Industrial Gas & Equipment Co., 441 F.2d 774, 777 (5th Cir. 1971). The Board found that certain statements made by supervisor Eidukonis to Miranda were impermissible threats. The first occurred on July 19, the date of the union election, when Eidukonis told Miranda, “All along I’ve told you that there’s no money here and that we ain’t going to negotiate with the IUE or any other union.” Miranda replied that the day was not over, and that Eidukonis’ comment would not keep them from trying. A few days after the election, Eidukonis informed Miranda that he, Eidukonis, was a better union buster than La Mountain. The third incident occurred when Eidukonis approached Miranda at his work station and told him that they should get out the picket signs; they were going to have a strike. While these comments may be abrasive and hostile, they do not rise to the level of a threat when viewed in the context of the totality of the surrounding circumstances. Furthermore, there is no evidence indicating that any of the statements contained a threat of reprisal against Miranda for engaging in protected activity. The statements were merely open-endéd predictions, “puffing,” boasts, and expressions of opinion. The Board also concluded that supervisor Ponce’s statement to Miranda that he “needed to get some union hospitalization insurance” because he “was going to lose an arm or a leg,” was also an impermissible threat. This statement, in isolation or in another context, could be an 8(a)(1) violation. But in the context presented here, we" } ]

[ { "docid": "22621256", "title": "", "text": "conviction for sentence enhancement only when there was a complete denial of counsel in the prior proceeding. Id., at 536, citing Gideon v. Wainwright, 372 U. S. 335 (1963); United States v. Tucker, 404 U. S. 443 (1972); and Burgett v. Texas, 389 U. S. 109 (1967). Based on Custis’ offense level of 33 and his criminal history category of VI, the District Court imposed a sentence of 235 months in prison. The Court of Appeals affirmed. 988 F. 2d 1355 (CA4 1993).. It recognized the right of a defendant who had been completely deprived of counsel to assert a collateral attack on his prior convictions since such a defendant “has lost his ability to assert all his other constitutional rights.” Id., at 1360, citing Johnson v. Zerbst, 304 U. S. 458,465 (1938). Citing the “substantial burden” on prosecutors and the district courts, the Court of Appeals dismissed all of Custis’ challenges to his prior convictions as the “fact-intensive” type that pose a risk of unduly delaying and protracting the entire sentencing process. 988 F. 2d, at 1361. The prospect of such fact-intensive inquiries led it to express great reluctance at forcing district courts to overcome the “ 'inadequacy or unavailability of state court records and witnesses’” in trying to determine the validity of prior sentences. Ibid., quoting United States v. Jones, 977 F. 2d 105,109 (CA4 1992). In addition to the practical hurdles, the Court of Appeals specified concerns over comity and federalism as other factors weighing against permitting collateral attacks. “ ‘Federal courts are not forums in which to relitigate state trials.’ ” 988 F. 2d, at 1361, quoting Barefoot v. Estelle, 463 U. S. 880, 887 (1983). We granted certiorari, 510 U. S. 913 (1993), because the Court of Appeals’ decision conflicted with recent decisions from other Courts of Appeals that permitted defendants to challenge prior convictions that are used in sentencing under § 924(e)(1). Custis argues that the ACCA should be read to permit defendants to challenge the constitutionality of convictions used for sentencing purposes. Looking to the language of the statute, we do not believe" } ]

[ { "docid": "23406741", "title": "", "text": "the United States, but the Supreme Court denied his petition on April 22, 1996. Johnson v. United States, 517 U.S. 1162, 116 S.Ct. 1559, 134 L.Ed.2d 659 (April 22, 1996) (mem.). Just over one year later, on April 25, 1997, Appellant filed a motion in the district court to extend the time to file a § 2255 petition. The district court ruled that Appellant’s motion was untimely under § 2255 ¶ 6(1). The district court did acknowledge the possibility that exists in every habeas case, namely, that something might transpire that would permit Appellant to take advantage of one of the later accrual dates under § 2255 ¶ 6. It therefore denied Appellant’s motion without prejudice. On February 6, 1998, Appellant filed a state habeas petition challenging all of his prior state convictions on the ground that he had not validly waived his right to counsel in those proceedings. On October 24, 2000, the state court vacated Appellant’s prior convictions. Appellant then filed the present § 2255 petition on February 13, 2001, asking the district court to vacate his sentence because he no longer qualified as a career offender. On August 1, 2001, the district court denied the § 2255 petition as untimely. We granted a certificate of appealability, and this appeal followed. II. DISCUSSION As this case involves an indirect challenge to a federal sentence via a collateral attack on prior state convictions, some background on the law of such challenges is helpful. First, in Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), the Supreme Court held that, during his sentencing proceeding, a federal prisoner could not attack the validity of his prior convictions that raised his maximum sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e); the only exception to this rule is for prior convictions based on a deprivation of the right to counsel under Gideon v. Wainwright. See Custis, 511 U.S. at 496, 114 S.Ct. at 1738. Second, federal prisoners generally cannot attack prior convictions which enhanced their federal sentences in a § 2255 proceeding challenging the validity" }, { "docid": "6020900", "title": "", "text": "Id. at 497, 114 S.Ct. 1732 (quoting Parke v. Raley, 506 U.S. 20, 30, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) (alterations in original)). Naturally, the Custis ruling applies whether the sentence enhancement was imposed because of ACCA or because of the Sentencing Guidelines. United States v. Arango-Montoya, 61 F.3d 1331, 1336 (7th Cir. 1995); United States v. Garcia, 42 F.3d 573, 581 (10th Cir.1994). After Custis, the “where” question became whether the constitutional infirmity of the state conviction could be raised initially in federal court by a § 2255 petition. In Daniels v. United States, 532 U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001), the Supreme Court answered this question negatively, with the exception of convictions in violation of the Gideon right to counsel. The Court said that a defendant may raise the issue of the validity of a state conviction in state court on direct appeal or in state post-conviction proceedings, or, if those routes had been exhausted, by petition for habeas under 28 U.S.C. § 2254. Daniels, 121 S.Ct. at 1582-83. But the Court would not permit leapfrogging of those state procedures to attack the state conviction initially by a federal § 2255 petition. The Court did leave open the possibility that a prisoner, who is prevented by no fault of his own from bringing a state proceeding to vacate, and was now barred by state law from doing so, could bring a § 2255 petition. Id. at 1584. This means that, absent a Gideon challenge, the “where” question is answered: the initial attack on the validity of the state conviction should be brought in state court. Only after the state court proceedings are exhausted, as a general rule, can a prisoner come to federal court to pursue a habeas claim. This rule is generally true both under § 2255, the federal post-conviction review for those in federal custody, and, more usually, under 28 U.S.C. § 2254, the habeas statute for those in state custody. O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). In this case, Brackett has exhausted his" }, { "docid": "18057860", "title": "", "text": "Defendant claims that he was a minor at the time of the prior offense and, therefore, the Oregon court did not have jurisdiction to convict him. Defendant claims that the Oregon court disregarded evidence that he was a minor at the time of the offense. Defendant argues that, because the Oregon conviction was erroneous, the district court had discretion to depart downward for an offense based upon that conviction. As an initial matter, we note that Defendant did not appeal the Oregon conviction or seek habeas relief. If ... a prior conviction used to enhance a federal sentence is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), then that defendant is without recourse. The presumption of validity that attached to the prior conviction at the time of sentencing is conclusive, and the defendant may not collaterally attack his prior conviction through a motion under § 2255. Daniels v. United States, 532 U.S. 374, 383, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001), affirming 195 F.3d 501 (9th Cir.1999). Because Defendant did not appeal, a conclusive presumption of validity attaches to the 1995 Oregon conviction. Collateral attacks at sentencing on prior state court convictions are prohibited. Custis v. United States, 511 U.S. 485, 490-97, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994); see also United States v. Gutierrez-Cervantez, 132 F.3d 460, 462 (9th Cir.1997) (holding that a defendant could not collaterally challenge a prior conviction for an aggravated felony in a § 1326 sentencing proceeding); Daniels, 532 U.S. at 384, 121 S.Ct. 1578 (holding that a defendant may not challenge a sentence in a 28 U.S.C. § 2255 proceeding by collaterally attacking the validity of an earlier conviction). Defendant argues that Custis and Daniels are not controlling because the Court did not specifically address collateral attacks in the context of downward departures. In Custis, the defendant was charged with federal drug and firearm offenses. After Custis was convicted, the prosecution sought to enhance his sentence under the Armed Career Criminal" }, { "docid": "6020899", "title": "", "text": "the validity of his prior conviction which raised his penalty from a maximum of 10 years to a mandatory minimum of 15 years in prison pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), during the federal sentencing proceedings, unless the attack was based on a deprivation of the right to counsel under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Custis was animated by two policy interests: ease of administration and finality of judgments. Custis, 511 U.S. at 496-97, 114 S.Ct. 1732. Custis noted that it is easier to administer cases in which Gideon claims are made than cases that claim ineffective assistance of counsel or failure to assure a voluntary guilty plea. Id. at 496, 114 S.Ct. 1732. In addition, finality is especially important where a defendant challenges a previous conviction because “the defendant is asking a district court 'to deprive [the] [state-court judgment] of [its] normal force and effect in a proceeding that ha[s] an independent purpose other than to overturn the prior judgmen[t].’” Id. at 497, 114 S.Ct. 1732 (quoting Parke v. Raley, 506 U.S. 20, 30, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) (alterations in original)). Naturally, the Custis ruling applies whether the sentence enhancement was imposed because of ACCA or because of the Sentencing Guidelines. United States v. Arango-Montoya, 61 F.3d 1331, 1336 (7th Cir. 1995); United States v. Garcia, 42 F.3d 573, 581 (10th Cir.1994). After Custis, the “where” question became whether the constitutional infirmity of the state conviction could be raised initially in federal court by a § 2255 petition. In Daniels v. United States, 532 U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001), the Supreme Court answered this question negatively, with the exception of convictions in violation of the Gideon right to counsel. The Court said that a defendant may raise the issue of the validity of a state conviction in state court on direct appeal or in state post-conviction proceedings, or, if those routes had been exhausted, by petition for habeas under 28 U.S.C. § 2254. Daniels, 121 S.Ct. at 1582-83." }, { "docid": "15604364", "title": "", "text": "word on the matter. More specifically, this fact was not conclusive for our purposes until the South Carolina Supreme Court denied the government’s petition for certiorari. Any doubt about the implications of the plain text of the statute is foreclosed by the Supreme Court’s decision in Daniels v. United States, 532 U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001). Like Gadsen, the petitioner in that case filed a motion to correct his federal sentence under § 2255. Id. at 377, 121 S.Ct. 1578. Daniels’ sentence had been enhanced under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (2003), based partly on two prior state court convictions for robbery. Id. at 377, 121 S.Ct. 1578. Daniels alleged that these robbery convictions were the result of “guilty pleas that were not knowing and voluntary,” and that enhancing his sentence based on them therefore violated the Constitution. Id. The Supreme Court rejected his claim. The majority held that, with some exceptions not relevant in Gad-sen’s case, prisoners may not challenge their federal sentences under § 2255 on the ground that their predicate felony convictions were unconstitutionally obtained. Id. at 376, 121 S.Ct. 1578. See also Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (holding that, with the sole exception of convictions obtained in violation of the right to counsel, defendants have no right during sentencing or on direct appeal to collaterally attack the validity of prior state convictions used to enhance their federal sentence). Critically for the present case, however, the Supreme Court went on to note that “after an enhanced federal sentence has been imposed ..., the person sentenced may pursue any channels of direct or collateral review still available to challenge his prior conviction.” Daniels, 532 U.S. at 382, 121 S.Ct. 1578. In other words, the Supreme Court instructed petitioners such as Gadsen to attack the predicate felony conviction itself, either in state court or through federal habeas review, rather than attacking it indirectly by seeking to obviate the effect it has on the sentencing process for another, recidivist, conviction. “If any such" }, { "docid": "6020898", "title": "", "text": "noted in Lackawanna County District Attorney v. Coss, 532 U.S. 394, 121 S.Ct. 1567, 1574, 149 L.Ed.2d 608 (2001), “as time passes, and certainly once a state sentence has been served to completion, the likelihood that trial records will be retained by the local courts and will be accessible for review diminishes substantially.” Attempts to vacate or set aside state court convictions have posed a particular problem in Massachusetts, because in the state district courts, where a great many criminal offenses are tried, the records of the proceedings may be destroyed after two and one half years. Special Rule of the District Courts 211(A)(4) (1997). The problem of whether to adjust federal sentences when a federal defendant asserts that the state convictions were constitutionally invalid presents a number of issues. One was the issue of tohere a claim that the state conviction was invalid should first be heard. In Custis v. United States, 511 U.S. 485, 493-97, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), the Supreme Court held that the federal prisoner could not attack the validity of his prior conviction which raised his penalty from a maximum of 10 years to a mandatory minimum of 15 years in prison pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), during the federal sentencing proceedings, unless the attack was based on a deprivation of the right to counsel under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Custis was animated by two policy interests: ease of administration and finality of judgments. Custis, 511 U.S. at 496-97, 114 S.Ct. 1732. Custis noted that it is easier to administer cases in which Gideon claims are made than cases that claim ineffective assistance of counsel or failure to assure a voluntary guilty plea. Id. at 496, 114 S.Ct. 1732. In addition, finality is especially important where a defendant challenges a previous conviction because “the defendant is asking a district court 'to deprive [the] [state-court judgment] of [its] normal force and effect in a proceeding that ha[s] an independent purpose other than to overturn the prior judgmen[t].’”" }, { "docid": "22140260", "title": "", "text": "read to mean that the validity of a prior conviction supporting an enhanced federal sentence is beyond challenge. Cf. Lewis v. United States, 445 U. S. 55 (1980) (validity of prior conviction irrelevant under federal statute prohibiting possession of a firearm by a felon). Our cases applying these provisions assume the contrary, that a defendant given a sentence enhanced for a prior conviction is entitled to a reduction if the earlier conviction is vacated. Custis v. United States, 511 U. S. 485 (1994); Daniels v. United States, 532 U. S. 374 (2001). Such was the premise in Custis v. United States, supra, even though we held that the ACCA generally created no opportunity to attack a prior state conviction collaterally at a federal sentencing proceeding, 511 U. S., at 490, and that the Constitution demands no more, id., at 496-497. We thought that Congress had not meant to make it so easy to challenge final judgments that every occasion to enhance a sentence for recidivism would turn a federal sentencing court into a forum for difficult and time-consuming reexaminations of stale state proceedings. Ibid. We recognized only one exception to this rule that collateral attacks were off-limits, and that was for challenges to state convictions allegedly obtained in violation of the right to appointed counsel, an exception we thought necessary to avoid undermining Gideon v. Wainwright, 372 U. S. 335 (1963). Custis v. United States, 511 U. S., at 494-496. As to challenges falling outside of that exception, we pointed out that a defendant who successfully attacked his state conviction in state court or on federal habeas review could then “apply for reopening of any federal sentence enhanced by the state sentences.” Id., at 497. Daniels v. United States, supra, extended Custis to hold, subject to the same exception for Gideon claims, that a federal prisoner may not attack a predicate state conviction through a §2255 motion challenging an enhanced federal sentence, 532 U. S., at 376, and again we stressed considerations of administration and finality, id., at 378-380. Again, too, we acknowledged that a prisoner could proceed under §2255" }, { "docid": "15604365", "title": "", "text": "on the ground that their predicate felony convictions were unconstitutionally obtained. Id. at 376, 121 S.Ct. 1578. See also Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (holding that, with the sole exception of convictions obtained in violation of the right to counsel, defendants have no right during sentencing or on direct appeal to collaterally attack the validity of prior state convictions used to enhance their federal sentence). Critically for the present case, however, the Supreme Court went on to note that “after an enhanced federal sentence has been imposed ..., the person sentenced may pursue any channels of direct or collateral review still available to challenge his prior conviction.” Daniels, 532 U.S. at 382, 121 S.Ct. 1578. In other words, the Supreme Court instructed petitioners such as Gadsen to attack the predicate felony conviction itself, either in state court or through federal habeas review, rather than attacking it indirectly by seeking to obviate the effect it has on the sentencing process for another, recidivist, conviction. “If any such challenge to the underlying conviction is successful,” the majority opinion continued, “the defendant may then apply for reopening of his federal sentence.” Id. If we adopt the government’s interpretation of § 2255, we would be punishing Gadsen and other litigants like him for having faithfully followed these instructions. The entire point of Custis and Daniels was that litigants should not bypass state courts to litigate the facts underlying their state convictions during challenges to a federal sentencing determination. Instead, “[ajfter an enhanced federal sentence has been imposed,” inmates should first initiate a separate proceeding challenging the validity of their state court convictions. Daniels, 532 U.S. at 382, 121 S.Ct. 1578. That is precisely what Gadsen did here. And he can hardly be charged with delaying that challenge: he filed his state application for post conviction relief less than a year after being convicted in state court. Even if Gadsen had filed his state challenge the next day “after [his] enhanced federal sentence [was] imposed,” he would not have been able to bring a § 2255" }, { "docid": "23406743", "title": "", "text": "of their federal sentence. Daniels v. United States, 532 U.S. 374, 376, 121 S.Ct. 1578, 1580, 149 L.Ed.2d 590 (2001); see also Lackawanna County District Attorney v. Coss, 532 U.S. 394, 403-04, 121 S.Ct. 1567, 1574, 149 L.Ed.2d 608 (2001) (reaching same conclusion for § 2254). If a prior conviction used to enhance a federal sentence is no longer itself open to direct or collateral attack, the defendant is generally without recourse. Daniels, 532 U.S. at 382, 121 S.Ct. at 1583. Following Custis, many Circuits including our own have authorized indirect attacks on federal sentences; a defendant may seek to reopen his federal sentencing pursuant to § 2255 if he has successfully attacked a prior state conviction used to enhance his federal sentence. United States v. Walker, 198 F.3d 811, 813 (11th Cir.1999) (per curiam) (citing cases). The effect of these rules has been to redirect challenges to federal sentences from federal courts to state courts, where court records may have been destroyed and where state executive officials often have no interest in defending a conviction for which the defendant has already served his sentence. With this background in mind, we turn to Appellant’s arguments on appeal. A. Statute of Limitations Appellant first argues his § 2255 petition, filed February 13, 2001, was timely under 28 U.S.C. § 2255 ¶ 6(4). That section provides as follows: A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of— (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255 ¶ 6. Appellant’s argument is straightforward: the single “fact” supporting the claim in his § 2255 petition is the vacatur of his prior state convictions; absent those state convictions, Appellant should not have been sentenced as a career offender, and his federal sentence should be vacated. Appellant contends the “fact” supporting his § 2255 claim — the va-catur of his prior state convictions — could not have been discovered until October 24, 2000, the date" }, { "docid": "18057861", "title": "", "text": "374, 383, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001), affirming 195 F.3d 501 (9th Cir.1999). Because Defendant did not appeal, a conclusive presumption of validity attaches to the 1995 Oregon conviction. Collateral attacks at sentencing on prior state court convictions are prohibited. Custis v. United States, 511 U.S. 485, 490-97, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994); see also United States v. Gutierrez-Cervantez, 132 F.3d 460, 462 (9th Cir.1997) (holding that a defendant could not collaterally challenge a prior conviction for an aggravated felony in a § 1326 sentencing proceeding); Daniels, 532 U.S. at 384, 121 S.Ct. 1578 (holding that a defendant may not challenge a sentence in a 28 U.S.C. § 2255 proceeding by collaterally attacking the validity of an earlier conviction). Defendant argues that Custis and Daniels are not controlling because the Court did not specifically address collateral attacks in the context of downward departures. In Custis, the defendant was charged with federal drug and firearm offenses. After Custis was convicted, the prosecution sought to enhance his sentence under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(1) (“ACCA”), based upon three prior state felony convictions. At sentencing, Custis challenged the use of two of the prior convictions in the enhancement proceeding on the grounds that the convictions were the result of: (1) pleas that were not knowing and intelligent; and (2) ineffective assistance of counsel. The Supreme Court determined that, except for convictions obtained in violation of the Sixth Amendment right to counsel, neither the ACCA or Constitution allowed a defendant to collaterally attack prior state court convictions. Custis, 511 U.S. at 490-97, 114 S.Ct. 1732. The Court reasoned that allowing collateral attacks “would require sentencing courts to rummage through frequently non-existent or difficult to obtain state-court transcripts or records that may date from another era, and may come from any one of the 50 states.” Id. at 496, 114 S.Ct. 1732. The Court went on to state that permitting defendants to re-argue state convictions for sentencing purposes would interfere with the ease of administration and the interest in finality of judgments, “undermine confidence in" }, { "docid": "6186989", "title": "", "text": "he would not have entered guilty pleas in either case “but for” these actions. II. Merits A. The government contends Self is precluded from attacking collaterally the state convictions used to calculate his sentence under the recent Supreme Court decision in Custis v. United States, — U.S. -, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). In Custis, the Supreme Court held that with the exception of convictions obtained in violation of the right to counsel (i.e., Gideon challenges), a defendant in a federal sentencing proceeding has no right to challenge the validity of previous state convictions used to enhance his sentence under the Armed Career Criminal Act of 1984,18 U.S.C. § 924(e) (the “ACCA”). Id. at -, 114 S.Ct. at 1479. Because Self was represented by counsel in both of the underlying state plea proceedings, the government contends Selfs § 2255 motion is barred. I disagree. The holding in Custis was specifically limited to collateral attacks on prior convictions made during sentencing proceedings and not, as here, in a later petition for habeas corpus. — U.S. at ---, 114 S.Ct. at 1738-39. Sentencing proceedings do not lend themselves to the type of evidentia-ry presentation necessary to determine the validity of prior convictions based on claims of ineffectiveness of counsel or the involuntariness of a guilty plea. Custis, — U.S. at -,-, 114 S.Ct. at 1735, 1738 (explain ing non-Gideon challenges are of “the ‘fact intensive’ type that pose a risk of unduly delaying and protracting the entire sentencing process”), discussed in Partee v. Hopkins, 35 F.3d 365, 366 (8th Cir.1994) (Beam, C.J., dissenting). Custis thus presented a forum question; “the issue was where, not whether, the defendant could attack a prior conviction for constitutional infirmity.” Nichols v. United States, — U.S. -, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (Ginsburg, J., dissenting) (emphasis original). It did not, as the government suggests, do away with the right to attack collaterally prior state convictions on non-Gideon grounds; it merely held such attacks must take place in separate state or federal habeas corpus actions. Custis, — U.S. at -, 114 S.Ct. at 1739." }, { "docid": "13386740", "title": "", "text": "sentencing.” Id. at 1333. We thus found that the district court here had erred in denying Price such an opportunity before sentencing him under the Guidelines’ career offender provision. On May 31, 1994, the United States Supreme Court granted the government’s petition for certiorari, vacated our judgment, and remanded Price’s case to us for reconsideration in light of the Court’s decision in Custis v. United States, — U.S. -, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). Because Cus-tis effectively overruled the pertinent aspect of Vea-Gonzales, we withdraw our previous memorandum. We again vacate and remand, but on the far more limited ground that the district court failed adequately to state the reasons for imposing the specific sentence it chose. Collateral Attack on Prior Convictions Custis held that defendants who wish to challenge the validity of prior convictions to be used for sentence enhancement have the constitutional right to do so only through habeas corpus; the sole constitutionally-mandated exception to this general rule is an allegedly total denial of the right to counsel in the prior proceeding. Id. at -, 114 S.Ct. at 1738-39. Should Congress wish to authorize such collateral attacks during the sentencing process itself, the Court continued in Custis, it has shown the ability to do so in specific statutes. Id. at -, 114 S.Ct. at 1736-37. The Court further held that the Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. § 924(e), neither expressly nor impliedly authorizes such collateral attacks. Id. at -, 114 S.Ct. at 1735-37. Since Custis did not allege total denial of his right to counsel, the Court determined that he could not challenge his prior convictions in his § 924(e) sentencing proceeding. Price moved to strike his prior convictions on the ground that they had resulted from guilty pleas that were neither voluntary nor knowing. After Custis, therefore, the relevant inquiry here is whether Congress has expressly or impliedly provided Price with an opportunity in this federal sentencing proceeding, rather than only through federal habeas corpus, to mount a collateral attack on his prior convictions. We hold that the Congress has not." }, { "docid": "23546123", "title": "", "text": "2255 petition, the entirety of both the Court’s opinion and the dissent would be dicta. This is necessarily the case because it would never be necessary to determine at what point the one-year statute of limitations begins to run under § 2255 when a predicate offense supporting a career-offender enhancement is vacated if a challenge to the application of career-offender status under the Sentencing Guidelines were not cognizable on a § 2255 petition in the first place. That is, the question of timeliness could never be reached because all § 2255 petitions challenging career-offender status following vacatur of a qualifying predicate conviction would have to be denied as not cognizable. Second, while neither opinion in Johnson explicitly states that Sentencing Guidelines career-offender error is cognizable under § 2255, both opinions make statements that are inconsistent with the conclusion that it is not. For example, the Supreme Court notes, “Our cases applying [mandatory enhancements under the Sentencing Guidelines and the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”),] assume ... that a defendant given a sentence enhanced for a prior conviction is entitled to a reduction if the earlier conviction is vacated.” Id. at 302-03, 125 S.Ct. at 1577 (emphasis added) (citations omitted). It further explains that \"a defendant who successfully attacked his state conviction in state court or on federal habeas review could then 'apply for reopening of any federal sentence enhanced by the state sentences.’” Id. at 303, 125 S.Ct. at 1578 (emphasis added) (citations omitted). And the Johnson dissent states that Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), and Daniels v. United States, 532 U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001), \"suggest that the proper procedure for reducing a federal sentence enhanced on the basis of an invalid state conviction is to seek a vacatur of a state conviction, and then proceed through federal habeas.” Id. at 313, 125 S.Ct. at 1583 (Kennedy, J., dissenting). While it is true that Custis and Daniels both involved sentences enhanced under the ACCA, the Johnson dissent apparently saw no basis for" }, { "docid": "23406752", "title": "", "text": "Carolina state court for post-conviction relief from his state conviction. Id. On December 20, 1999, the South Carolina court granted his application for post-conviction relief, and the South Carolina Supreme Court declined to review that decision on January 10, 2001. Id. at 225-26. With this final order vacating his state conviction in hand, the petitioner filed a § 2255 petition on December 17, 2001, seeking to vacate his federal sentence on the ground that he was no longer a career offender. Id. at 226. The district court, however, dismissed his § 2255 petition as untimely. Id. On appeal, the Fourth Circuit rejected Brackett’s interpretation of § 2255 ¶ 6(4), treating the South Carolina court’s vacatur of the petitioner’s state conviction as a “fact” within the meaning of that section. In particular, the Fourth Circuit relied upon a passage of the Supreme Court’s opinion in Daniels in which the Court acknowledged that “after an enhanced federal sentence has been imposed ..., the person sentenced may pursue any channels of direct or collateral review still available to challenge his prior convictions.” Id. at 228 (quoting Daniels, 532 U.S. at 382, 121 S.Ct. at 1583). The Fourth Circuit reasoned that, if it did not interpret § 2255 ¶ 6(4) liberally, “we would be punishing Gadsen and other litigants like him for having faithfully followed these instructions [from Daniels].” Id. We think the Fourth Circuit reads the language of Daniels for much more than it is worth. To be sure, “[t]he entire point of Custis and Daniels was that litigants should not bypass state courts to litigate the facts underlying their state convictions during challenges to a federal sentencing determination.” Id. But as the First Circuit aptly put it in Brackett, Custis and Daniels answer the question of where a federal prisoner may bring an attack on a prior state conviction in order to mount an indirect attack on a federal sentence, while the question in this case (as in Brackett and Gadsen) is when that indirect attack may be brought. See Brackett, 270 F.3d at 66. The language of Daniels on which the" }, { "docid": "6186988", "title": "", "text": "§ 922(a)(6). A presentence report indicated Self had a record of two Colorado state convictions in 1979 and one California state conviction in 1965, all the result of guilty pleas. The report considered the 1979 convictions to assign Self three points under the Criminal History provisions of the Guidelines and arrive at a sentencing range of 46-57 months. Judge Finesilver sentenced Self to 46 months in prison on September 20, 1993. On November 19, 1994, Self filed the instant 28 U.S.C. § 2255 motion to vacate the sentence imposed on grounds the 1979 convictions were constitutionally defective. Self claims both were the product of “coercive” multi-district plea agreements in which counsel misrepresented the maximum sentence Self would have to serve. Self alleges one of the state trial judges failed to obtain “CORE” waivers of the constitutional rights to which he was entitled and asserts both judges failed to advise him of the “necessary and essential elements” of the crimes with which he was charged. Petitioner’s Mem. Points & Authorities of Law at 2. Self contends he would not have entered guilty pleas in either case “but for” these actions. II. Merits A. The government contends Self is precluded from attacking collaterally the state convictions used to calculate his sentence under the recent Supreme Court decision in Custis v. United States, — U.S. -, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). In Custis, the Supreme Court held that with the exception of convictions obtained in violation of the right to counsel (i.e., Gideon challenges), a defendant in a federal sentencing proceeding has no right to challenge the validity of previous state convictions used to enhance his sentence under the Armed Career Criminal Act of 1984,18 U.S.C. § 924(e) (the “ACCA”). Id. at -, 114 S.Ct. at 1479. Because Self was represented by counsel in both of the underlying state plea proceedings, the government contends Selfs § 2255 motion is barred. I disagree. The holding in Custis was specifically limited to collateral attacks on prior convictions made during sentencing proceedings and not, as here, in a later petition for habeas corpus. —" }, { "docid": "15604363", "title": "", "text": "cf. Ybanez v. Johnson, 204 F.3d 645 (5th Cir.2000) (per curiam) (reaching an arguably comparable conclusion with respect to the nearly identical statute of limitations contained in 28 U.S.C. § 2244). With all due respect to our sister circuit, we disagree. Gadsen’s challenge arises out of his contention that South Carolina has vacated a key conviction relied on by the original federal court in setting Gadsen’s career offender sentence. A critical “fact” with respect to the operation of the sentencing guidelines in Gadsen’s original federal case was the fact that Gadsen’s record included a prior state conviction for assault with intent to kill. In just the same way, the relevant “fact” with respect to the operation of Gadsen’s § 2255 claim today is the fact that Gadsen’s prior state conviction has been conclusively invalidated. See U.S. Sentencing Guidelines Manual § 4A1.3, 4B1.1 (2002). And by definition, Gadsen could not have “discovered” this “fact”' — -that this prior conviction had been conclusively vacated — until it became clear that the lower court’s decision was the last word on the matter. More specifically, this fact was not conclusive for our purposes until the South Carolina Supreme Court denied the government’s petition for certiorari. Any doubt about the implications of the plain text of the statute is foreclosed by the Supreme Court’s decision in Daniels v. United States, 532 U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001). Like Gadsen, the petitioner in that case filed a motion to correct his federal sentence under § 2255. Id. at 377, 121 S.Ct. 1578. Daniels’ sentence had been enhanced under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (2003), based partly on two prior state court convictions for robbery. Id. at 377, 121 S.Ct. 1578. Daniels alleged that these robbery convictions were the result of “guilty pleas that were not knowing and voluntary,” and that enhancing his sentence based on them therefore violated the Constitution. Id. The Supreme Court rejected his claim. The majority held that, with some exceptions not relevant in Gad-sen’s case, prisoners may not challenge their federal sentences under § 2255" }, { "docid": "23406742", "title": "", "text": "court to vacate his sentence because he no longer qualified as a career offender. On August 1, 2001, the district court denied the § 2255 petition as untimely. We granted a certificate of appealability, and this appeal followed. II. DISCUSSION As this case involves an indirect challenge to a federal sentence via a collateral attack on prior state convictions, some background on the law of such challenges is helpful. First, in Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), the Supreme Court held that, during his sentencing proceeding, a federal prisoner could not attack the validity of his prior convictions that raised his maximum sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e); the only exception to this rule is for prior convictions based on a deprivation of the right to counsel under Gideon v. Wainwright. See Custis, 511 U.S. at 496, 114 S.Ct. at 1738. Second, federal prisoners generally cannot attack prior convictions which enhanced their federal sentences in a § 2255 proceeding challenging the validity of their federal sentence. Daniels v. United States, 532 U.S. 374, 376, 121 S.Ct. 1578, 1580, 149 L.Ed.2d 590 (2001); see also Lackawanna County District Attorney v. Coss, 532 U.S. 394, 403-04, 121 S.Ct. 1567, 1574, 149 L.Ed.2d 608 (2001) (reaching same conclusion for § 2254). If a prior conviction used to enhance a federal sentence is no longer itself open to direct or collateral attack, the defendant is generally without recourse. Daniels, 532 U.S. at 382, 121 S.Ct. at 1583. Following Custis, many Circuits including our own have authorized indirect attacks on federal sentences; a defendant may seek to reopen his federal sentencing pursuant to § 2255 if he has successfully attacked a prior state conviction used to enhance his federal sentence. United States v. Walker, 198 F.3d 811, 813 (11th Cir.1999) (per curiam) (citing cases). The effect of these rules has been to redirect challenges to federal sentences from federal courts to state courts, where court records may have been destroyed and where state executive officials often have no interest in defending a" }, { "docid": "23546120", "title": "", "text": "of justice. Like Johnson’s sentence, Spencer’s sentence was based on the career-offender enhancement, which was wrongly applied to him because the sentencing court relied on a legal nullity to find the enhancement applicable. So, like Johnson’s sentence, Spencer’s sentence must also be a fundamental defect that results in a complete miscarriage of justice and therefore “otherwise subject to collateral attack” under § 2255. As a result, under Stoufflet, it is not subject to the procedural bar against raising the same claim that was brought on direct appeal in § 2255 proceedings. IY. Conclusion Finally, the Majority writes, “Our dissenting colleagues ... fail to ... provide a principled test for distinguishing between misapplications of the guidelines that can be collaterally challenged and those that cannot.” Supra at 1140 (emphasis in original). But there is no reason for this dissent to set forth a test for identifying all misapplications of the guidelines that can be collaterally challenged and distinguishing them from those that cannot because existing Supreme Court precedent already renders the misapplication of the guidelines that occurred in Spencer’s case to be cognizable. In Johnson, the Supreme Court explicitly recognized that situations besides vacatur could raise a cognizable § 2255 claim when it opined, “[TJhere may be rare cases in which no channel of review was actually available to a defendant with respect to a prior conviction, due to no fault of his own, in which case a prisoner might be able to use a motion under § 2255 to challenge the prior [“]conviction[”] as well as the federal sentence based on it.” 544 U.S. at 304 n. 4, 125 S.Ct. at 1578 n. 4 (citing Daniels v. United States, 532 U.S. 374, 382, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001)) (citation and internal quotation marks omitted). This is that rare case. Spencer could not have had his “crime of violence” predicate conviction vacated because he was never convicted of or pled guilty to such a crime in the first place. As in Johnson, the “fact” upon which the sentencing court relied to conclude that Spencer was a career offender was" }, { "docid": "9363374", "title": "", "text": "the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e) (ACCA), on account of prior state convictions. That statute provides a mandatory minimum sentence of 15 years for any person who “has three previous convictions ... for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). Custis attempted to challenge the validity of the state convictions during the federal sentencing proceeding. The Court held that a defendant in a federal sentencing hearing has no right to challenge the validity of a prior state conviction used for enhancement purposes, unless the conviction was obtained in violation of the Gideon right to counsel. See 511 U.S. at 496, 114 S.Ct. 1732 (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)). The Court reasoned that the ACCA requires enhancement on the basis of the fact of prior convictions and does not permit a sentencing court to second-guess the validity of those convictions. See id. at 491, 114 S.Ct. 1732. We interpreted Custis in Clawson v. United States, 52 F.3d 806 (9th Cir.1995), where we considered whether a petitioner could use 28 U.S.C. § 2255 to challenge the federal court’s reliance on an allegedly invalid state court conviction to enhance a federal sentence. We read Custis to bar federal habeas review of the validity of a prior conviction used for federal sentencing enhancement unless the petitioner raises a Gideon claim. The circuits are divided on the interpretation of Custis in the habeas context. The Eighth Circuit, in line with Clawson, has held that Custis bars habeas challenges of prior convictions used for federal sentence enhancement. See Arnold v. United States, 63 F.3d 708, 709 (8th Cir.1995). The Third Circuit, by contrast, has distinguished between collateral challenges made at sentencing and those brought by way of a habeas attack on an enhanced sentence. Young v. Vaughn, 83 F.3d 72, 77 (3d Cir.1996). The Third Circuit read Custis as limited to the context of sentencing proceedings and permitted a federal habeas challenge to an expired sentence used to enhance a federal sentence. Id. Feldman was decided before" }, { "docid": "14898480", "title": "", "text": "FERNANDEZ, Circuit Judge: Earthy D. Daniels, Jr., appeals the denial of his 28 U.S.C. § 2255 motion in which he sought to challenge the constitutionality of two state convictions, which were used in sentencing him under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA). We affirm. BACKGROUND Daniels was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court determined that Daniels, who had four prior convictions, was subject to the ACCA and sentenced him to imprisonment for 176 months. Daniels appealed to this court. He asserted that the district court’s conclusion that his two California burglary convictions constituted predicate offenses under the ACCA was incorrect. In an unpublished disposition, we rejected that assertion. See United States v. Daniels, No. 95-50044, 86 F.3d 1164, 1996 WL 292231, at * 3-4 (9th Cir. June 3, 1996). Daniels then filed a § 2255 motion to set aside, vacate or correct his federal sentence, and collaterally attacked Ms two California robbery convictions, which were also used to enhance his sentence. Although he claimed that he had been unconstitutionally convicted, he did not contend that he was denied the right to counsel as guaranteed by Gideon v. Waimwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), in either case. The district court denied his motion on the ground that he could not maintain that collateral attack under § 2255. He then appealed. JURISDICTION AND STANDARD OF REVIEW We have jurisdiction pursuant to 22 U.S.C. § 2253(a). We review denials of petitions under 28 U.S.C. § 2255 de novo. See Sanchez v. United States, 50 F.3d 1448, 1451 (9th Cir.1995). DISCUSSION In Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), the Supreme Court declared that, except for Gideon challenges, a defendant may not collaterally attack prior state convictions in sentencing proceedings where the ACCA is being used to enhance the sentence. The statute does not permit it. See id. at 490, 114 S.Ct. at 1735. The Constitution does not require it. See id. at 497," } ]

[ { "docid": "12087723", "title": "", "text": "process that a jury in a criminal case be willing to decide the case solely on the evidence before it. Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982). Consequently, “[i]n a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is ... deemed presumptively prejudicial.” Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954). This presumption is rebutted if the. court finds that there was no “reasonable possibility” that the verdict was affected by the contact. United States v. Bruscino, 687 F.2d at 940. Determining whether a verdict was affected is a fact-driven exercise that will depend upon the circumstances of the case. See United States v. Weisman, 736 F.2d 421, 424 (7th Cir.), cert. denied, 469 U.S. 983, 105 S.Ct. 390, 83 L.Ed.2d 324 (1984) (“Each case ‘must turn on its special facts ...’”) (quoting Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1173, 3 L.Ed.2d 1250 (1959)). Factors that a court should look to in making this deter- initiation include the extent and nature of the unauthorized contact, the power of curative instructions, and the responses of the jury. United States v. Williams, 737 F.2d 594, 612 (7th Cir.1984), cert. denied, 470 U.S. 1003, 105 S.Ct. 1354-1355, 84 L.Ed.2d 377 (1985). The district court has had firsthand contact with the case and the jury. United States v. Sababu, 891 F.2d 1308, 1333 (7th Cir.1989). Its decision is therefore reviewed according to an “abuse of discretion” standard, and, as an appellate court sitting one step removed from the trial, we shall reverse the district court’s decision only if we have a very strong conviction of error. United States v. Bruscino, 687 F.2d at 941; see also United States v. Strickland, 935 F.2d 822, 825 (7th Cir.), cert. denied, — U.S. —, 112 S.Ct. 324, 116 L.Ed.2d 265 (1991); United States v. Best, 939 F.2d 425, 429 (7th Cir.1991) (en banc), cert. denied, — U.S. —, 112 S.Ct." } ]

[ { "docid": "23561385", "title": "", "text": "case, the judge was requested to question the jurors during their deliberations and before they had reached a verdict. In such a situation, the Rule is inoperative and the trial judge was not restricted by it from conducting a voir dire of the jury as to the effect of the transcript on the deliberations. The cases cited by the trial court and the government asserting that the Rule limits the trial court’s inquiry into the affect of extraneous matters involve posi-verdict situations. Apparently, the trial court wrongly relied on Rule 606(b) in declining to question the jury. We believe, however, that such error was harmless. The court had other valid reasons for refusing to question the jury. Garcia also argues that under the Supreme Court’s decision in Remmer v. United States, 347 U.S. 227, 229-30, 74 S.Ct. 450, 451-52, 98 L.Ed. 654 (1954), the presence of the transcript in the jury room was to be deemed “presumptively prejudicial” and that a hearing was necessary to enable the government to properly meet its “heavy burden” of proving the harmlessness of the transcript. In Remmer, the Court stated that the trial court “should determine the circumstances [surrounding the improper contact] and the impact thereof on the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.” Remmer, 347 U.S. at 229-30, 74 S.Ct. at 451. We have interpreted this hearing requirement as not “requiring, especially in the context of an ongoing trial, a certain quantum of proof to overcome the presumption of prejudice, or as mandating a particular procedure for conducting a hearing.” Evans v. Young, 854 F.2d 1081, 1083 (7th Cir.1988). In the instant case, through his discussions with counsel and his subsequent instruction to the jury, the trial court “was able to fully investigate and dispel any prejudice arising from the contact before the jury reached its verdict.” Evans, 854 F.2d at 1084 n. 1. The trial courts retain wide latitude over how to conduct such hearings and substantial discretion over the determination of whether the prejudice arising from the unauthorized contact" }, { "docid": "21043344", "title": "", "text": "predicated on the assertion that a juror’s testimony about his ability to remain impartial is inherently suspect. No juror, codefendants assert, can resist the desire to please the court even in the face of certain misgivings. To overcome the presumptively prejudicial impact of any unauthorized private communication with a juror in a criminal case, under Remmer v. United States, 347 U.S. 227, 229-30, 74 S.Ct. 450, 451-52, 98 L.Ed. 654 (1954), the trial court “should not decide and take final action ex parte ... but should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.” The government bears a heavy burden to establish that the communication was harmless. Id. at 229, 74 S.Ct. at 451. The Court subsequently clarified the nature of that burden and rejected the notion that the law must impute bias to a juror’s answers. Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). See also United States v. Zelinka, 862 F.2d 92, 95 (6th Cir.1988); United States v. Butler, 822 F.2d 1191, 1197 (D.C.Cir.1987). Once the government rebuts the presumption of prejudice in a Remmer hearing, the burden then shifts to defendant to show actual prejudice. See United States v. Day, 830 F.2d 1099, 1105 (10th Cir.1987). In this case, the district court’s questioning of the individual members of the jury, supplemented by suggestions from counsel, fulfilled the Remmer hearing requirement. Nevertheless, codefendants argue the court’s style of questioning intimidated jurors into answering what the court wanted to hear. Although a form of questioning that would permit each juror the opportunity to offer evidence in his own words would have been preferable, we cannot say that the court’s questioning in this case failed to elicit sufficient responses to allow the court to assess the harm of the juror contact. Moreover, the court thoroughly and properly instructed the jurors after the hearing to assure their understanding of their responsibility. “[W]e will presume that jurors remain ‘true to their oath and ... conscientiously observe the instructions and" }, { "docid": "22474641", "title": "", "text": "requires new trials. In Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), the Supreme Court held that because juries in criminal eases must be free from outside influences, a trial court confronted with an allegation of external tampering or contact with a juror during trial about a matter pending before the jury “should determine the circumstances, the impact [of the contact] upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.” United States v. Rigsby, 45 F.3d 120, 123 (6th Cir.(quoting Remmer, 347 U.S. at 230, 74 S.Ct. at 451), cert. denied, 514 U.S. 1134, 115 S.Ct. 2015, 131 L.Ed.2d 1013 (1995). Nonetheless, “not all communications with jurors warrant a hearing for a determination of potential bias.” Id. at 124 (quoting White v. Smith, 984 F.2d 163, 166 (6th Cir.1993)). Instead, an allegation of an unauthorized communication with a juror requires a Remmer hearing only when the alleged contact presents a likelihood of affecting the verdict. See id. at 123. Accordingly, we generally have required trial courts to conduct Remmer hearings only in eases involving claims of “intentional improper contacts or contacts that had an obvious potential for improperly influencing the jury.” Id. at 124. Further, the defendant must show that an unauthorized contact created actual juror bias; courts should not presume that a contact was prejudicial. See, e.g., United States v. Walker, 1 F.3d 423, 431 (6th Cir.1993); United States v. Zelinka, 862 F.2d 92, 95-96 (6th Cir.1988); United States v. Pennell, 737 F.2d 521, 530-32 (6th Cir.1984). We review a decision by a trial court not to hold a Remmer hearing for abuse of discretion. See Rigsby, 45 F.3d at 125; United States v. Griffith, 17 F.3d 865, 880 (6th Cir.1994). In the instant case, the District Court did not abuse its discretion by refusing to hold a Remmer hearing because defendants presented no basis upon which to believe that Shelby even had experienced an external contact or communication regarding matters pending before the jury during her absence from the deliberations. The" }, { "docid": "22333137", "title": "", "text": "would not affect his or her deliberations. The court then again denied the defendants’ motions for mistrial after concluding that none of the jurors “had been influenced in any way by the card incident.” In Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 945, 71 L.Ed.2d 78 (1982), the Court held that “the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.” Drawing on its previous decision in Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), the Court explained in Smith that the trial judge is “to ‘determine the circumstances, the impact thereof upon the jurors, and whether or not [they were] prejudicial, in a hearing with all interested parties permitted to participate.’ ” Smith, 455 U.S. at 216, 102 S.Ct. 945 (quoting Remmer, 347 U.S. at 230, 74 S.Ct. 451) (emphasis in Smith). This is exactly what the district judge did in this case. A district court has broad discretion in handling allegations of outside influences on the jury. See United States v. Ramos, 71 F.3d 1150, 1153 (5th Cir.1995), cert. denied, 517 U.S. 1227, 116 S.Ct. 1864, 134 L.Ed.2d 962 (1996) (“We do not understand Smith to require a full-blown evidentiary hearing in every instance in which an outside influence is brought to bear on a petit juror. Our precedents allow the trial judge the flexibility, within broadly defined parameters, to handle such situations in the least destructive manner.”). Neither Murga nor Parada has shown any abuse of discretion by the district court in handling this incident. F. Ineffective Assistance of Counsel After the jury’s verdict Louis Suarez, counsel for Luis Rios-Castano, was indicted for drug dealing. The court appointed a new lawyer to represent Rios-Castano at his sentencing and on appeal. Rios-Castano’s new counsel filed a motion for new trial alleging that Suarez had provided ineffective representation at trial because (1) he entered into a cocaine transaction with an undercover agent during trial (and later pleaded guilty to the offense), and (2) he did not devote adequate time" }, { "docid": "13983733", "title": "", "text": "said, and three knew at least part of what the defendant is alleged to have said. All the jurors stated that the matter had no effect on their ability to render a fair and impartial verdict. See Post-Trial Hearing Tr. at 26-40. The judge refused to recall the juror previously interviewed, and refused to ask several more detailed questions suggested by counsel. See id. at 5-24, 42-43. The judge later denied defendants’ motion for a new trial, finding that “the nature of the communication by defendant Tillette was not of the type which is inherently prejudicial and that knowledge of the communication by some members of the jury had no effect on their deliberations or verdicts, and that such communication was harmless.” United States v. Tillette, Crim. No. 85-404 (D.D.C. Apr. 23, 1986) (order denying oral motion for new trial). B. The proper legal standard for evaluating the effect of an alleged juror exposure to extra-judicial information, both sides here seem to agree, is that “[irrespective of the source of the alleged taint, it is the burden of the government to demonstrate that the jury was impartial, and that extrinsic information did not contribute to the verdict.” Brief for Appellee at 12. As Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), and Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), state, the proper procedure for the judge confronted with an allegedly improper juror contact is to hold a hearing “to determine the effect of such occurrences when they happen.” Phillips, 455 U.S. at 217, 102 S.Ct. at 946. The hearing should not be conducted ex parte, see, e.g., Remmer, 347 U.S. at 229-30, 74 S.Ct. at 451, but it also need not be conducted as a full evidentiary hearing, see, e.g., Phillips, 455 U.S. at 216-18, 102 S.Ct. at 945-46; United States v. Boscia, 573 F.2d 827, 831 (3d Cir.1978), and the inquiries put to the juror need only be sufficiently detailed to permit the judge to determine whether any prejudice is likely to result. See, e.g., United States" }, { "docid": "4228615", "title": "", "text": "out such evidence, he argues, a reviewing court could never determine the effect of a crime scene visit on the jury’s verdict. We disagree. Alleged infringement of Sixth Amendment rights is no exception to the general rule that “most constitutional errors can be harmless.” Fulminante, 499 U.S. at 306, 111 S.Ct. at 1263. The Supreme Court has “long since rejected the argument that, as a general matter, the Sixth Amendment prohibits the application of harmless-error analysis in determining whether constitutional error had a prejudicial impact on the outcome of a case.” Sullivan, 508 U.S. at 282-83, 113 S.Ct. at 2083 (Rehnquist, C.J., concurring). Sherman’s argument is further undercut by the Supreme Court’s application of harmless error analysis to claims of juror misconduct and bias, claims that are essentially indistinguishable from those Sherman alleges. In Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), the Court held that a juror’s mid-trial application for employment in the District Attorney’s office responsible for prosecuting the defendant did not require automatic reversal of the conviction. As the Court observed, the Constitution “does not require a new trial every time a juror has been placed in a potentially compromising situation ... [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.” Id. at 217, 102 S.Ct. at 946. In Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), an outsider apparently offered a juror a bribe in return for a favorable verdict; the trial judge ordered an investigation without disclosing the proffered bribe or investigation to defense counsel. Even in these circumstances, the Court did not require automatic reversal of the conviction. Instead, it directed the trial court to conduct a hearing to determine the prejudicial impact of the developments. Id. at 230, 74 S.Ct. at 451-52. Smith and Remmer thus contemplate the precise inquiry that Sherman characterizes as impossible: discerning the effect of juror misconduct or bias on the verdict without examining the thought processes of the jury. Following the Supreme Court’s lead, this court has" }, { "docid": "11005815", "title": "", "text": "ease must decide the case solely on the evidence before it). “The determination of whether the contact in a given case was prejudicial or harmless lies primarily within the discretion of the trial court.” United States v. Strickland, 935 F.2d 822, 825 (7th Cir.), cert. denied sub nom., Moore v. United States, 502 U.S. 917, 112 S.Ct. 324, 116 L.Ed.2d 265 (1991); United States v. Sababu, 891 F.2d 1308, 1335 (7th Cir.1989). This court will reverse only if we have a very strong conviction of error. United States v. Sanders, 962 F.2d 660, 669 (7th Cir.), cert. denied sub nom., Wilson v. United States, — U.S. —, 113 S.Ct. 262, 121 L.Ed.2d 192 (1992) (citations omitted). When an allegation of misconduct is made, a hearing should be held to determine the circumstances surrounding the improper contact and its impact on the juror. Remmer, 347 U.S. at 229-30, 74 S.Ct. at 451 (any contact with a juror is presumed prejudicial unless there is no reasonable possibility that the verdict was affected); see Strickland, 935 F.2d at 825. This is exactly what the trial judge did: an evidentiary hearing was held and both Hall and Pineda testified. After lengthy questioning, the court determined that the contact had not affected the verdict. See also United States v. Costello, 830 F.2d 99, 101 (7th Cir.1987) (“Harmless contact between juror and a security officer is not grounds for reversal.”). The contact between the women was brief and the trial was not discussed. After reviewing the transcripts of the hearing, we are not left with any conviction of error. See Sanders, 962 F.2d at 669. B. Motion to Transfer Prior to trial, Reynolds moved to transfer the trial from Evansville, Indiana, to Terre Haute, Indiana. The district court denied the motion. We review the district court’s denial of a motion to transfer for an abuse of discretion. United States v. Sidener, 876 F.2d 1334, 1335 (7th Cir.1989). Federal law provides that venue is proper in any district where an offense was begun, continued, or completed. 18 U.S.C. § 3237(a); United States v. Sax, 39 F.3d 1380," }, { "docid": "13983734", "title": "", "text": "the burden of the government to demonstrate that the jury was impartial, and that extrinsic information did not contribute to the verdict.” Brief for Appellee at 12. As Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), and Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), state, the proper procedure for the judge confronted with an allegedly improper juror contact is to hold a hearing “to determine the effect of such occurrences when they happen.” Phillips, 455 U.S. at 217, 102 S.Ct. at 946. The hearing should not be conducted ex parte, see, e.g., Remmer, 347 U.S. at 229-30, 74 S.Ct. at 451, but it also need not be conducted as a full evidentiary hearing, see, e.g., Phillips, 455 U.S. at 216-18, 102 S.Ct. at 945-46; United States v. Boscia, 573 F.2d 827, 831 (3d Cir.1978), and the inquiries put to the juror need only be sufficiently detailed to permit the judge to determine whether any prejudice is likely to result. See, e.g., United States v. Coleman, 805 F.2d 474, 481-82 (3d Cir.1986); United States v. Pennell, 737 F.2d 521, 529, 533 (6th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985). In these and other aspects of this problem the trial judge has broad discretion to fix the exact procedures by balancing the need to make a sufficient inquiry against the concern that the inquiry not create prejudicial effects by unduly magnifying the importance of an insignificant occurrence. See, e.g., United States v. Polizzi, 500 F.2d 856, 880-81 (9th Cir. 1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975); United States v. Webster, 750 F.2d 307, 338 (5th Cir.1984), cert. denied, 471 U.S. 1106, 105 S.Ct. 2340, 85 L.Ed.2d 855 (1985). The judge then determines whether the exposure was prejudicial or harmless, and appellate courts must defer to this finding on review. See, e.g., Hobson v. Wilson, 737 F.2d 1, 49 (D.C. Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985); Irvin v. Dowd, 366 U.S. 717," }, { "docid": "21043343", "title": "", "text": "any matter raised from any outside source. It must have no influence whatever in your deliberations. If you cannot follow this instruction or do not believe you can avoid all speculation and discussion concerning outside matters in your verdict on this matter, then you must tell the Court at this time. Does anyone want to tell me they cannot follow that instruction? Receiving no response, the court ordered final arguments and then instructed the jury. Subsequently, the jury found Mr. Armendariz guilty on Count I and Mr. Aguirre guilty on Counts I and II. Mr. Armendariz was sentenced to five years in prison on Count I and a five-year period of supervised release. Mr. Aguirre received a four-year sentence on both counts to run concurrently and a two-year period of supervised release. II. Improper Juror Contact Arguing the district court abused its discretion in denying their motion for a mistrial, codefendants urge that an outside contact with a juror coupled with the circumstances of the communication is per se ground for mistrial. This theory is predicated on the assertion that a juror’s testimony about his ability to remain impartial is inherently suspect. No juror, codefendants assert, can resist the desire to please the court even in the face of certain misgivings. To overcome the presumptively prejudicial impact of any unauthorized private communication with a juror in a criminal case, under Remmer v. United States, 347 U.S. 227, 229-30, 74 S.Ct. 450, 451-52, 98 L.Ed. 654 (1954), the trial court “should not decide and take final action ex parte ... but should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.” The government bears a heavy burden to establish that the communication was harmless. Id. at 229, 74 S.Ct. at 451. The Court subsequently clarified the nature of that burden and rejected the notion that the law must impute bias to a juror’s answers. Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). See also United States v. Zelinka, 862" }, { "docid": "4228616", "title": "", "text": "As the Court observed, the Constitution “does not require a new trial every time a juror has been placed in a potentially compromising situation ... [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.” Id. at 217, 102 S.Ct. at 946. In Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), an outsider apparently offered a juror a bribe in return for a favorable verdict; the trial judge ordered an investigation without disclosing the proffered bribe or investigation to defense counsel. Even in these circumstances, the Court did not require automatic reversal of the conviction. Instead, it directed the trial court to conduct a hearing to determine the prejudicial impact of the developments. Id. at 230, 74 S.Ct. at 451-52. Smith and Remmer thus contemplate the precise inquiry that Sherman characterizes as impossible: discerning the effect of juror misconduct or bias on the verdict without examining the thought processes of the jury. Following the Supreme Court’s lead, this court has repeatedly examined instances of juror misconduct and bias for harmlessness. See United States v. Seeright, 978 F.2d 842, 849-50 (4th Cir.1992) (juror’s independent investigation of evidence did not require a mistrial when judge excused juror from further service and satisfied himself that other jurors were not affected); Stockton v. Virginia, 852 F.2d 740, 743-46 (4th Cir.1988) (jury’s exposure to improper third-party contact examined to determine extent of prejudice), cert. denied, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989); United States v. Malloy, 758 F.2d 979, 982-83 (4th Cir.) (juror’s previous service at trial of co-defendant did not require a new trial), cert. denied, 474 U.S. 1009, 106 S.Ct. 535, 88 L.Ed.2d 465 (1985); Miller v. Harvey, 566 F.2d 879, 881 (4th Cir.1977) (jury’s improper experiment, in which one juror bit another to observe the resulting bruises, did not violate due process and thus did not require granting a writ of habeas corpus), cert. denied, 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978). Likewise, other courts have applied harmless error analysis to" }, { "docid": "148563", "title": "", "text": "assured the judge that the other jurors did not know of the contact. The court excused and replaced the juror, but did not examine the other jurors. The defendants were convicted. On appeal, the Fifth Circuit remanded for a hearing to determine whether the other members of the jury were prejudiced. The court of appeals held that the trial court’s investigation into the improper contact was inadequate, and that a tainted juror’s testimony that the other jurors knew nothing about the improper contact is an insufficient basis on which to conclude that the other jurors have not been contaminated. Forrest, 620 F.2d at 457-58. “Only the other jurors can enlighten [the court] properly on this subject.” Id. at 457. The appellants contend that the Forrest examination of the other jurors in this case should have taken place before rather than after the verdicts were rendered. Although Forrest can be read to suggest that the examination of the jurors should take place if possible before the verdicts are rendered, failure to do so in this case is not reversible error because the post-verdict interviews in the presence of the parties and their counsel demonstrate that the jurors were not prejudiced. Such post-verdict interviews are constitutionally sufficient to decide allegations of juror impartiality. See Smith v. Phillips, 455 U.S. 209, 217-18, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982); Remmer v. United States, 347 U.S. 227, 230, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954). “The crucial issue is the de gree and pervasiveness of the prejudicial influence.” United States v. Williams, 568 F.2d 464, 470 (5th Cir.1978). We have reviewed the transcript of the post-verdict interviews and conclude that the district court’s findings are not clearly erroneous. The jurors were not prejudiced by the improper contact. We hold, therefore, that the district court did not abuse its discretion in denying the motions for new trial on the basis of improper jury contact. II. PROSECUTORIAL MISCONDUCT The appellants contend that the following remarks made by the prosecutrix during the rebuttal portion of her closing arguments denied them a fair trial: MS. SCHWARTZ" }, { "docid": "21554417", "title": "", "text": "so, whether it was prejudicial to the Defendant.” Rec. vol. I, doe. 210 at 1. At the hearing, Curry was questioned about his conversation with the bank officer. A second hearing was held on July 8, at which time Detjen testified about the information related to him by Curry. In its order denying defendant’s motion for a new trial, the court stated that when viewed in the light most favorable to defendant, “the communication was arguably about the matter before the jury” and would “be treated as ‘presumptively prejudicial.’ ” Id. at 3. The court determined, however, that the presumption was rebutted by the “overwhelming evidence” of defendant’s guilt. Id. at 5. In Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954), the Court stated that in a criminal case, any private communication or contact with a juror during a trial about a matter pending before the jury is deemed presumptively prejudicial. See United States v. Day, 830 F.2d 1099, 1103 (10th Cir.1987). The presumption of prejudice “is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.” Remmer v. United States, 347 U.S. at 229, 74 S.Ct. at 451. The trial court has broad discretion in reviewing the effect of extrajudicial information. United States v. Day, 830 F.2d at 1106; United States v. Jones, 707 F.2d 1169, 1173 (10th Cir.), cert. denied, 464 U.S. 859, 104 S.Ct. 184, 78 L.Ed.2d 163 (1983). Relying on what he purports to be the holding in United States v. Greer, 620 F.2d 1383 (10th Cir.1980), defendant contends that the presumption of prejudice is irre-buttable once the jury has reached its verdict. In Greer, a United States Deputy Marshal presented information to the jury concerning possible sentencing. The improper contact came to the trial court’s attention after the verdict was entered and the defendant was sentenced. Following a hearing, the court determined that the contact was not prejudicial. Id. at 1384. Judge McKay, upon restating the" }, { "docid": "14997694", "title": "", "text": "other jurors “prevented the Foreperson from relating fully the information he had received.” Id. at 10. Based on these findings, the court held that the law required it to presume that the contact was prejudicial to the defendants. Id. at 13. The court concluded that the government had not rebutted the presumption and granted Blumeyer’s and Peckham’s motions for a new trial. We will reverse a district court’s decision to grant a new trial only when that decision constitutes an abuse of discretion. United States v. Estrada, 45 F.3d 1215, 1225 (8th Cir.1995), petition for cert. filed, No. 94-8972 (April 24, 1995). A discretionary decision based on a clearly erroneous finding of fact constitutes an abuse of the trial court’s discretion. Waible v. McDonald’s Corp., 935 F.2d 924, 926 (8th Cir.1991) (per curiam). The District Court’s order relies on Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954), and United States v. Bassler, 651 F.2d 600, 603 (8th Cir.), cert. denied, 454 U.S. 944, 102 S.Ct. 485, 70 L.Ed.2d 254 (1981), and cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 305 (1982), as authority for imposing the rebuttable presumption of prejudice in this case. In Remmer, the Supreme Court stated that [i]n a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial.... The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. Remmer, 347 U.S. at 229, 74 S.Ct. at 451. The presumption of prejudice does not apply unless the extrinsic contact relates to “factual evidence not developed at trial.” United States v. Cheyenne, 855 F.2d 566, 568 (8th Cir.1988). Extrinsic contacts that relate to the facts of a case are presumptively prejudicial “because the jury is the final arbiter of factual disputes.” Id. The government argues that in this case there is no evidence" }, { "docid": "21554420", "title": "", "text": "Remmer v. United States, 347 U.S. at 229, 74 S.Ct. at 451; United States v. Day, 830 F.2d at 1103. “[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation.” Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982) (addressing due process claim premised on juror bias). When a trial court is apprised of the fact that an extrinsic influence may have tainted the trial, the proper remedy is a hearing to determine the circumstances of the improper contact and the extent of the prejudice, if any, to the defendant. Id. 102 S.Ct. at 217; Remmer v. United States, 347 U.S. at 229-30, 74 S.Ct. at 451. The court’s questioning of a juror who is the recipient of extraneous information is limited to the circumstances and nature of the improper contact, as Fed.R.Evid. 606(b) precludes the court from delving into the subjective effect of the contact on the juror’s decision-making. Accordingly, an objective test should be applied in making an assessment of whether the defendant was prejudiced by the extraneous information. See United States v. Bruscino, 687 F.2d 938, 940-41 (7th Cir.1982) (en banc), cert. denied, 459 U.S. 1228, 103 S.Ct. 1235, 75 L.Ed.2d 468 (1983); Miller v. United States, 403 F.2d 77, 83 n. 11 (2d Cir.1968); see also 3 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 606[05] (1987). The court “should assess the ‘possibility of prejudice’ by reviewing the entire record, analyzing the substance of the extrinsic evidence, and comparing it to that information of which the jurors were properly aware.” United States v. Weiss, 752 F.2d 777, 783 (2d Cir.), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 285 (1985). In the instant case, the trial court properly conducted two hearings to determine the nature and possible prejudicial effect of the third-party contact. Applying the presumption of prejudice, the court determined that in light of the overwhelming evidence of defendant’s guilt, the contact was harmless. We agree with the district court that the information imparted to juror Curry" }, { "docid": "20764784", "title": "", "text": "“When a trial court is apprised of the fact that an extrinsic influence may have tainted the trial, the proper remedy is a hearing to determine the circumstances of the improper contact and the extent of the prejudice, if any, to the defendant.” Scull, 321 F.3d at 1280 (quoting United States v. Hornung, 848 F.2d 1040, 1045 (10th Cir.1988)). This evidentiary hearing is often called a “Remmer hearing,” following the seminal Supreme Court case on the matter. See Day, 830 F.2d at 1106. The trial court’s duty to conduct a Remmer hearing when genuine concerns of improper juror contact arise is clearly established by the Supreme Court. Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (“This Court has long held that the remedy for allegations of juror partiality is a hearing.”); Remmer, 347 U.S. at 229-30, 74 S.Ct. 450; Cannon, 383 F.3d at 1169-70; Scull, 321 F.3d at 1280 & n. 5. Courts have found credible evidence of jury tampering or improper external jury communication in a variety of circumstances, such as a short restroom conversation between a juror and a law enforcement witness that briefly touched on matters tangential to the case, Day, 830 F.2d at 1101; a defendant’s allegation that a person had approached him to solicit a bribe to sway the jury, Corrado, 227 F.3d at 535; and a hearsay report that the father of a witness had improper contact with jurors, Cannon, 383 F.3d at 1169. Yet “it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.” Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Thus, not every allegation of improper juror contact requires a hearing. For example, a hearing may not be warranted if the defendant provides only speculation that improper juror contact may have occurred. See, e.g., United States v. Frost, 125 F.3d 346, 376-77 (6th Cir.1997) (no hearing required after juror became ill and left jury room to lie down in clerk’s office, where there was no evidence juror had external contact during" }, { "docid": "21554419", "title": "", "text": "rule set out in Remmer, concluded that the effect of the subsequent enactment of Fed.R. Evid. 606(b) “is that a presumption of prejudice cannot be overcome once a jury has reached its verdict.” Id. at 1385. Although the majority of the panel deemed the improper contact so prejudicial that it constituted reversible error, both the concurring and dissenting judges rejected the notion that a “conclusive presumption” should be applied when an improper juror contact comes to light post-trial. Id. at 1386 (Doyle, J., concurring); id. at 1391 (Barrett, J., dissenting); see 3 D. Louisell & C. Mueller, Federal Evidence § 291 (Supp. 1987) (recognizing that conclusion that presumption is irrebuttable was not adopted by a majority of the panel). Thus, contrary to defendant’s contention, Greer does not stand for the proposition that the presumption of prejudice is irrebuttable once the jury has reached its verdict. The pre sumption is not conclusive, but rather can be overcome upon the government meeting its burden of establishing that the contact with the juror was harmless to the defendant. Remmer v. United States, 347 U.S. at 229, 74 S.Ct. at 451; United States v. Day, 830 F.2d at 1103. “[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation.” Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982) (addressing due process claim premised on juror bias). When a trial court is apprised of the fact that an extrinsic influence may have tainted the trial, the proper remedy is a hearing to determine the circumstances of the improper contact and the extent of the prejudice, if any, to the defendant. Id. 102 S.Ct. at 217; Remmer v. United States, 347 U.S. at 229-30, 74 S.Ct. at 451. The court’s questioning of a juror who is the recipient of extraneous information is limited to the circumstances and nature of the improper contact, as Fed.R.Evid. 606(b) precludes the court from delving into the subjective effect of the contact on the juror’s decision-making. Accordingly, an objective test should be applied in making" }, { "docid": "11005814", "title": "", "text": "Mackey if he knew the woman. Mackey told him that she was his sister, Judy Hall, and introduced them. Mackey then asked his sister if she had spoken with Pineda, and she told him that she had. He asked whether she and Pineda had discussed the trial, and Hall told him they did not. Once the conversation was brought to the district court’s attention by defense counsel, the court held an evidentiary hearing on the matter. The two women testified that they had not spoken of the trial and the district court concluded that no improper contact had taken place. Reynolds argues that he is entitled to a new trial because of improper contact between Pineda and Hall. Improper, extrajudicial contact between the jury and a third party can indeed prejudice the defendant, Remmer v. United States, 347 U.S. 227, 229-30, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954), but not in every case. See Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982) (a jury in a criminal ease must decide the case solely on the evidence before it). “The determination of whether the contact in a given case was prejudicial or harmless lies primarily within the discretion of the trial court.” United States v. Strickland, 935 F.2d 822, 825 (7th Cir.), cert. denied sub nom., Moore v. United States, 502 U.S. 917, 112 S.Ct. 324, 116 L.Ed.2d 265 (1991); United States v. Sababu, 891 F.2d 1308, 1335 (7th Cir.1989). This court will reverse only if we have a very strong conviction of error. United States v. Sanders, 962 F.2d 660, 669 (7th Cir.), cert. denied sub nom., Wilson v. United States, — U.S. —, 113 S.Ct. 262, 121 L.Ed.2d 192 (1992) (citations omitted). When an allegation of misconduct is made, a hearing should be held to determine the circumstances surrounding the improper contact and its impact on the juror. Remmer, 347 U.S. at 229-30, 74 S.Ct. at 451 (any contact with a juror is presumed prejudicial unless there is no reasonable possibility that the verdict was affected); see Strickland, 935 F.2d at" }, { "docid": "22823306", "title": "", "text": "949 F.2d 90, 95 (3d Cir.1991) (citing Government of the Virgin Islands v. Lima, 774 F.2d at 1250)), cert. denied, — U.S. -, 112 S.Ct. 2971, 119 L.Ed.2d 590 (1992). In this case, the district court did not abuse its discretion in denying Markoff’s motion for a new trial. The district court held that Juror # ll’s comment created a presumption of prejudice to the defendant, but that the government rebutted that presumption. United States v. Markoff, Crim. No. 89-148, at 10. The government maintains that the district court erred in applying a presumption of prejudice to the comment. Govt.Br. at 70 n. 68 (citing Gilsenan, 949 F.2d at 95 n. 7). The district court based its determination that Juror # ll’s comment was presumptively prejudicial on Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954) (Remmer I) and Remmer v. United States, 350 U.S. 377, 76 S.Ct. 425, 100 L.Ed. 435 (1956) (Remmer II). The Remmer cases involved a possible attempt to bribe a juror and an FBI interview conducted with this juror to investigate the incident. The Court in Rem-mer II held that a presumption of prejudice “attaches to the[se], kind[s] of facts.” Remmer II, 350 U.S. at 380, 76 S.Ct. at 427. As the Court explained, [i]n a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court ... with full knowledge of the parties. Id. at 379, 76 S.Ct. at 426-27 (quoting Remmer I, 347 U.S. at. 229, 74 S.Ct. at 451). The district court correctly concluded that the Supreme Court in Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), did not reject Remmer's presumption of prejudice. See Stockton v. Virginia, 852 F.2d 740, 744 (4th Cir.), cert. denied, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989); United States v. Butler, 822 F.2d 1191, 1195 n. 2 (D.C.Cir.1987). Cf. United States v." }, { "docid": "18217387", "title": "", "text": "466, 472-73, 85 S.Ct. 546, 549-50, 13 L.Ed.2d 424 (1965). We accept that view. Pursuant to Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir.1980), cert. denied, 450 U.S. 1035, 101 S.Ct. 1749, 68 L.Ed.2d 231 (1981), the district judge determined that it could be concluded beyond a reasonable doubt that the extrinsic material did not influence the verdict. We reverse because this conclusion was based on factual findings that were clearly erroneous. See Fed. R.Civ.P. 52(a). The government argues that Gibson is no longer good law, and cites the recent Sixth Circuit case of United States v. Pennell, 737 F.2d 521, 532-33 (6th Cir.1984), for the proposition that defendants rather than the government bear the burden of proving jury partiality in a hearing on the matter. We believe that this argument misinterprets the meaning of Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). In Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), the Supreme Court placed the burden of proof on the government to overcome a presumption of prejudice where there is “any private communication, contact or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury.” 347 U.S. at 229, 74 S.Ct. at 451. In a hearing to determine whether contact with a juror was harmless, “the burden rests heavily upon the Government to establish ... that such contact with the juror was harmless to the defendant.” Id. The government and the Sixth Circuit maintain that Phillips overruled Remmer by holding that the remedy for allegations of juror partiality is a hearing “in which the defendant has the opportunity to prove actual bias.” 455 U.S. at 215, 102 S.Ct. at 945; Pennell, 737 F.2d at 532. But, the Supreme Court expressly upheld the Remmer -type burden of proof; it held that determinations of jury partiality “may properly be made at a hearing like that ordered in Remmer and held in this case.” 455 U.S. at 217, 102 S.Ct. at 946. Quite simply, the government (and the Sixth Circuit) misread the" }, { "docid": "2943940", "title": "", "text": "the comment at the elevator. However, she heard about it upon returning from lunch, and stated that it made her nervous. She testified about nightmares and a general nervousness at being involved in the trial. Although she attributed both the nightmares and the nervousness to the defense, she stated that she had seen nothing to indicate that anyone was trying to influence her verdict. After being assured by the court that there was nothing wrong with not being able to continue, this juror stated that she felt she could do the job she was sworn to do, uninfluenced by anything that had happened, including her dreams. B. The Supreme Court has outlined the procedure that district courts should follow when advised of unauthorized contacts with a juror. In Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), an unnamed person told a juror in a criminal trial that he could profit by returning a verdict favorable to the defendant. The Court stated that any unauthorized private communication or contact with a juror in a criminal case is presumptively prejudicial and that the government bears the heavy burden of establishing that such communication or contact was harmless to the defendant. Id. at 229, 74 S.Ct. at 451. The Court then prescribed the procedure to be followed by a trial court when advised of such a contact: The trial court should not decide and take final action ex parte on information such as was received in this case, but should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate. Id. at 229-30, 74 S.Ct. at 451. In Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78' (1982), the district court granted habeas corpus relief to a petitioner who complained that one of the jurors at his state court trial had submitted an application for employment to the district attorney’s office during the trial. The trial court conducted a post-trial hearing on the defendant’s motion to set aside" } ]

[ { "docid": "12320376", "title": "", "text": "authority. Prof. Greenleaf says: “It is the judgment, and that only, which is received as the legal and con elusive evidence of the party’s guilt, for the purpose of rendering him incompetent to testify. And it must appear that the judgment was rendered by a court of competent jurisdiction. Judgment of outlawry, for treason or felony, will have the same effect; for the party, in submitting to an outlawry, virtually confesses his guilt; and so the record is equivalent to a judgment upon confession. If the guilt of the party should be shown by oral evidence, and even by his oum admission [though in neither of these modes can it be proved, if the evidence be objected to], or, by his plea of ‘guilty’ which has not been followed by a judgment, the proof does not go to the competency of the witness, however it may affect his credibility. And the judgment itself, when offered against his admissibility, can be proved only by the record, or, in proper eases, by an authenticated copy, which the objector must offer and produce at the time when the witness is about to be sworn, or at farthest in the course of the trial.” 1 Greenleaf on Ev. (14th Ed.) § 375; Id. § 457. To the same effect are Wharton, Cr. Ev. (9th Ed.) §§ 153, 474, 489; United States v. Biebush, 1 McCrary, 42, 1 Fed. 213; United States v. Woods, 28 Fed. Cas. 762; Commonwealth v. Green, 17 Mass. 515, 536; Commonwealth v. Quin, 5 Gray (Mass.) 478; Insurance Co. v. White, 58 Ark. 277, 24 S. W. 425; Vance v. State, 70 Ark. 272, 280, 287, 68 S. W. 37; Clement v. Brooks, 13 N. H. 92, 98; Johnson v. State, 48 Ga. 116; People v. Whipple, 9 Cow. (N. Y.) 707; People v. Herrick, 13 Johns. (N. Y.) 82, 7 Am. Dec. 364; Hilts v. Colvin, 14 Johns. (N. Y.) 182. A codefendant of the plaintiff in error not then on trial testified as a witness for the government without being first discharged from the indictment. This it is" } ]

[ { "docid": "9369297", "title": "", "text": "a test of his credibility, citing the Fields Case, supra. The case of Parks v. United States, 297 F. 834 (C. C. A. 4th, 1924), is similar to the Jones Case, supra, and the testimony was held competent on the authority of the Fields Case. The only eases cited in the Merrill Case outside of those determined in the Fourth Circuit are the following: United States v. Liddy, 2 F.(2d) 60 (D. C. Penn.), in which it was held that, as the defendant had on direct examination testified that he had never on previous occasions unlawfully sold intoxicating liquor, he thereby opened, the door for cross-examination as to previous violations. In Wheeler v. United States, 293 F. 588 (C. C. A. 5th, 1923), it is held that, where a defendant takes the stand in his own be-half, he may be asked on cross-examination for the purpose of impeachment if he had not' previously been convicted of a felony. In Gordon v. United States, 254 F. 53 (C. C. A. 5th, 1918), it is held that, where accused took the stand in his own behalf, he could be impeached like any other witness by proof of his prior conviction of an offense which the Penal Code, § 335 (18 USCA § 541), makes a felony; evidence being restricted to that purpose. His prior conviction was for setting up and operating a distillery. In Neal v. United States, 1 F.(2d) 637, 639 (C. C. A. 8th, 1924), Phillips, J., quoting from Glover v. United States (C. C. A.) 147 F. 426, 8 Ann. Cas. 1184, says with reference to such testimony: “The general rule is that the crime must rise to the dignity of a felony or petit larceny.” Williams v. United States, 3 F.(2d) 129, 41 A. L. R. 328 (C. C. A. 8th, 1924), contains an exhaustive and learned opinion by Judge Kenyon on the issue whether or not it is necessary to prove prior convictions by the introduction of the record, and it is held that a witness may be asked on cross-examination, for the honest purpose of affecting" }, { "docid": "13518620", "title": "", "text": "hydrometer. His testimony that the liquor was fit for beverage purposes was based upon smelling and tasting. We think the question of the qualification of the witness was rightly decided by the trial court. The criticism that is directed against his testimony goes to the question of weight rather than competency. Specification of error 5 challenges the action of the court in permitting a sample of the alleged liquor sold to be handed to the jury to taste and smell. The record does not show that the liquor was handed to the jury. Counsel for defendant claims that such was the fact, and that there is an omission in the record. Since counsel’s attention was timely called to this alleged omission in the record, and since he has not seen fit to take the proper steps to remedy it, the alleged error cannot be considered. See, however, Gallaghan v. United States (C. C. A.) 299 F. 172; Peru v. United States (C. C. A.) 4 F.(2d) 881. Specification of error 6 relates to the cross-examination of the witness Cuva. This witness, sworn on behalf of defendant, testified on direct examination that defendant was working for him on his farm some miles distant from Omaha on April 2d and 5th— the days when it is charged defendant made the sales of liquor in Omaha.' This was the entire scope of the direct examination. On cross-examination the district attorney was allowed, over objection, to inquire of the witness at length whether an old still had not been found on his farm, and whether he had not been arrested for having the still in his possession, but released on bail. We think this was improper cross-examination, and highly prejudicial to the defendant. It was not within the scope of the direet examination. It.was not the proper way in which to attack the credibility of the witness Cuva, if that was the purpose. 2 Wigmore on Evidence, § 982; Glover v. United States, 147 F. 426, 430, 77 C. C. A. 450, 8 Ann. Cas. 1184 (C. C. A. 8); Coyne v. United States," }, { "docid": "7752631", "title": "", "text": "TRIEBER, District Judge. This is the second appearance of this ease in this court. On the first hearing the judgment of conviction was reversed upon the ground that, after the jury, had reported inability to agree on a verdict, the court, in an additional charge on the controlling points in the case, used language that was not free from argument, and was in some degree calculated to coerce a verdict. 7 F.(2d) 598, 602. The indictment charges the plaintiff in error, hereafter referred to as the defendant, with violation of the Dyer Act (Comp. St. §§ 10418b-10418£), “by transporting a certain ear, described in the indictment, from Blackwell, Okl., to Columbus, Kan., which car had been stolen from Carl Kohler at Blackwell, Okl.; the defendant well knowing at the time he so transported the car, that it had been stolen.” The defendant, having testified in his own behalf, was, on cross-examination, asked about six other cars, previously found in his possession, which were found to have been stolen. Objections to these questions by counsel for defendant were overruled by the court, and proper exceptions saved. As these questions were not whethef defendant had ever been convicted of possession of stolen cars, it was prejudicial error to have overruled the objections. The mere fact that a person is found in possession of stolen cars, without substantial evidence that he knew they , had been stolen, is not a violation of this act of Congress. Besides, a mere charge of having committed a crime, when there was no conviction, is insufficient. Glover v. United States, 147 F. 426, 429, 430,. 8 Ann. Cas. 1184 (C. C. A. 8); Fish v. United States, 215 F. 544, L. R. A. 1915A, 809 (C. C. A. 1); Coyne v. United States, 246 F. 120 (C. C. A. 5); Paris v. United States, 260 F. 529, 531, 532 (G. C. A. 8). In Glover v. United States, this court held the law to be: “It is competent for the purpose of discrediting a witness to show that he has been convicted of a crime. * *" }, { "docid": "23023264", "title": "", "text": "-is that the crime must rise to the dignity of a felony or petit larceny. State v. Taylor, 98 Mo. 244, 11 S. W. 570; State v. Kelsoe, 76 Mo. 507; State v. Donnelly, 130 Mo. 651, 32 S. W. 1124; Coble v. State, 31 Ohio St. 100; Glenn v. Clore, 42 Ind. 60. Whatever may be the limit in this respect, nothing short of a conviction of a crime is admissible for the purpose of impeachment. A mere accusation or indictment will not be admitted, for the reason that innocent men are often arrested charged with a criminal offense. 1 Greenleaf on Evidence (16th Ed.) 461b, 461c, pp. 579, 580. The proper evidence of a conviction of crime is the record thereof. See Baltimore & Ohio Railroad Company v. Rambo, 59 Fed. 75-80, 8 C. C. A. 6; Bise v. United States (recently decided by this court) 144 Fed. 374. The practice of proving the former conviction by cross-examination is recognized in many states, usually by statute and occasionally by judicial decisions. 1 Greenleaf on Evidence (16th Ed.) par. 461b, note 8. But where this practice is recognized, the proper question would be as to whether or not the party being interrogated had been convicted of a crime, and not whether he had been arrested or indicted. Whether it is permissible, in the absence of any statute in the Indian Territory regulating the practice in this respect, to undertake to prove by cross-examination of the witness, without the production of the record, that he had been convicted of a crime, for the purpose merely of affecting his credibility and not as to his competency, it will be time enough for this court to determine when the question is properly before it. In charging the jury on the important issue of the alibi the court said: “Such defense, to be entitled to consideration, must be such as to show that at the very time of the commission of the crime charged the accused was at another place so far away and under such circumstances that he could not, with any" }, { "docid": "15394184", "title": "", "text": "copy of the conviction.” This raises a very interesting and important question, upon which the briefs furnish us little assistance. The direct question here presented seems never to have been determined by this court. In Bise v. United States, 144 F. 374, 74 C. C. A. 1, 7 Ann. Cas. 165, the attempt was made in the trial court in the examination of one of the government’s witnesses to show that the witness', had been convicted iof'a felony. The court inquired whether it was for the purpose of impeachment or disqualification. The answer being that the purpose was disqualification, the court held that to disqualify the witness the record of conviction must be produced. This occurred in the Indian Territory, which at that time had no controlling statute on the subject. This court sustained the ruling of the trial court, quoting Prof. Greenleaf in support thereof. It will be noted that the case deals with the question of disqualifying a witness, and not with the question of affecting a witness’ credibility. The distinction between competency and credibility of a witness should be borne in mind. In Glover v. United States, 147 F. 426, 429, 430, 77 C. C. A. 450, 454 (8 Ann. Cas. 1184), this court again dealt with a situation where a prosecuting attorney inquired of witnesses as to whether they had not been arrested at some time, and said: “It is competent for the purpose of discrediting a witness to show that he has been convicted of a crime. The general rule is that the crime must rise to the dignity of a> felony or petit larceny.” Further the court said-: “The proper evidence of a conviction of crime is the record thereof. * * * Whether, it is permissible, in the absence of any statute in the Indian Territory regulating the practice in this respect, to undertake to prove by cross-examination of the witness, without the production of the record, that he had been convicted of a crime, for the purpose 'merely of affecting his credibility and not as to his competency, it will be time" }, { "docid": "23271553", "title": "", "text": "6) 233 F. 5; Heard v. United States (C. C. A. 8) 255 F. 829; Zoline on Fed. Crim. Law and Procedure, vol. 1, § 385, page 317] ; that the credibility of a defendant who has. testified may he impeached in the same manner and to the same extent as any other witness, and no further [Raffel v. United States, 271 U. S. 494, 46 S. Ct. 566, 70 L. Ed. 1054; Fitzpatrick v. United States, 178 U. S. 304, 315, 20 S. Ct. 944, 44 L. Ed. 1078; Reagan v. United States, 157 U. S. 301, 305, 15 S. Ct. 610, 39 L. Ed. 709; Madden v. United States (C. C. A. 9) 20 F.(2d) 289; Tucker v. United States (C. C. A. 8) 5 F.(2d) 818]; questions asked on cross-examination for the purposes of impeachment should be confined to acts or conduct which refleet upon his integrity or truthfulness, or so “pertain to his personal turpitude, such as to indicate such moral depravity or degeneracy on his part as would likely render him insensible to the obligations of an oath to speak the truth” [Miller v. Territory of Oklahoma (C. C. A. 8) 149 F. 330, 338, 9 Ann. Cas. 389] ; when such a question is asked and answered, the inquiry is ended; the government is bound by the answer in that it may not, on rebuttal, offer countervailing proof [Fisk v. United States (C. C. A. 6) 279 F. 12; Billiard v. United States (C. C. A. 4) 245 F. 837; Smith v. United States (C. C. A. 9) 10 F.(2d) 787, 788]. To this latter rule, there is one exception : In criminal cases a witness may be asked, for purposes of impeachment, whether he has been convicted of a felony, infamous crime, petit larceny, or a crime involving moral turpitude, and on rebuttal the record of such conviction is admissible. Middleton v. United States (C. C. A. 8) 49 F.(2d) 538; Glover v. United States (C. C. A. 8) 147 F. 426, 8 Ann. Gas. 1184; Williams v. United States (C. C. A." }, { "docid": "15061167", "title": "", "text": "out his return. The charges were, as in the present case, consolidated for trial. There was an acquittal on the perjury count, but a conviction on the charge of attempting to defeat the Income Tax Law. But the contention that the defendants were twice placed in jeopardy for the same offense is answerable on other grounds. The constitutional inhibition is not ¿gainst double punishment for one offense, but against double jeopardy for the same offense. It is uniformly held that the constitutional immunity from second jeopardy is a personal privilege, which may be waived, that the waiver may be either express or implied,, that it is always implied when there is failure to raise the objection at the first opportunity, and that it comes too late when raised for the first time on motion in arrest of judgment. 16 C. J. 285; People v. Stoll, 143 Cal. 689, 77 P. 818; State v. Houghton, 45 Or. 110, 75 P. 887; State v. White, 71 Kan. 356, 80 P. 589, 6 Ann. Cas. 132; Blocher v. State, 177 Ind. 356, 98 N. E. 118; People v. McGinnis, 234 Ill. 68, 84 N. E. 687,. 123 Am. St. Rep. 73; Ex parte Hall, 94 N. J. Eq. 108, 118 A. 347; White v. State (Okl. Cr. App.) 214 P. 202. The plaintiffs in error cite Morgan v. United States (C. C. A.) 294 F. 84, Reynolds v. United States (C. C. A.) 280 F. 3, Grafton v. United States, 206 U. S. 333, 350, 27 S. Ct. 749, 151 L. Ed. 1084, 11 Ann. Cas. 640, and United States v. Torres (D. C.) 291 F. 138. It does not appear in those eases whether or not there was waiver of the constitutional privilege, except that in Reynolds v. United States it was held, without the citation of authority, that the objection might be raised on motion in arrest of judgment. That ruling is not in harmony with generally accepted doctrine, and we think it. is unsustainable in principié. If two counts-of an indictment charge a defendant with but a single offense, one" }, { "docid": "21501926", "title": "", "text": "on their recollection of the facts, as this witness did, it is not necessary that the writing be produced. It is only where the witness uses the paper to refresh his memory while on the stand that there exists a right to compel the production .of the writing for inspection. Wabash, etc., Canal v. Bledsoe, 5 Ind. 133; Davenport v. McKee, 94 N. C. 330; State v. Collins, 15 S. C. 379, 40 Am. Rep. 697; Hamilton v. Rice, 15 Tex. 382; Tibbetts v. Sternberg, 66 Barb. (N. Y.) 201; State v. Magers, 36 Or. 38, 58 P. 892; 28 R. C. L. 596; 22 L. R. A. (N. S.) 706, 40 Cyc. 2463. The defendant has no just ground of complaint of the ruling of the court on this motion. IV. Another assignment of error is based upon the ruling of the court in excluding certain testimony. When one of the witnesses for the government was on the stand, he was asked in cross-examination whether, at a certain time, he registered at a hotel with a woman'; whether, on another occasion, he had liquor in his possession and attempted to sell the same'; and whether, at another time, he was intoxicated and disorderly. To this course of cross-examination the court sustained the objections of counsel for the government. The purpose of the defendant was, of course, to impeach the witness and cast a doubt upon his credibility. Acts of misconduct, not resulting in conviction of a crime, are not the proper subject of cross-examination to impeach a witness. Terzo v. U. S. (C. C. A.) 9 F.(2d) 357; Conner v. U. S. (C. C. A.) 7 F.(2d) 313; Glover v. U. S. (C. C. A.) 147 F. 426, 8 Ann. Cas. 1184. This eouit holds even a conviction of a misdemeanor may not be used to discredit a witness, unless the offense amounts to an infamous crime. Haussener v. U. S. (C. C. A.) 4 F.(2d) 884. There is no substance in this assignment .of error. V. Lastly,’ complaint is made of the action of the court in admitting" }, { "docid": "9369298", "title": "", "text": "where accused took the stand in his own behalf, he could be impeached like any other witness by proof of his prior conviction of an offense which the Penal Code, § 335 (18 USCA § 541), makes a felony; evidence being restricted to that purpose. His prior conviction was for setting up and operating a distillery. In Neal v. United States, 1 F.(2d) 637, 639 (C. C. A. 8th, 1924), Phillips, J., quoting from Glover v. United States (C. C. A.) 147 F. 426, 8 Ann. Cas. 1184, says with reference to such testimony: “The general rule is that the crime must rise to the dignity of a felony or petit larceny.” Williams v. United States, 3 F.(2d) 129, 41 A. L. R. 328 (C. C. A. 8th, 1924), contains an exhaustive and learned opinion by Judge Kenyon on the issue whether or not it is necessary to prove prior convictions by the introduction of the record, and it is held that a witness may be asked on cross-examination, for the honest purpose of affecting his eredi bility, whether he has been previously convicted of a felony. This case is cited by defendant’s counsel in the case at bar. But, as the point decided is not in issue in the present action, it does not appear to be germane. Furthermore, it is held in the ease of Haussener v. United States, 4 F.(2d) 884 (C. C. A. 8th, 1925), that the first violation of the National Prohibition Act being neither a felony nor an infamous crime, cross-examination of the defendant touching his prior conviction of such offense is not permissible to impeach his credibility. And in Lawrence v. United States (C. C. A.) 18 F.(2d) 407, there was a reversal because the trial judge admitted evidence of conviction of misdemeanor. This appears to be the last word on this point from the Eighth Circuit. The ease of Murray v. United States, 53 App. D. C. 119, 288 F. 1008, a ease from the District of Columbia, the defendant was convicted of killing his wife. It was held no error to" }, { "docid": "16014640", "title": "", "text": "purpose of impeachment, to inquire as to indictments or accusations against the witness. Mitrovich v. U. S. (C. C. A. 9th) 15 F.(2d) 163; Dawson v. U. S. (C. C. A. 9th) 10 F.(2d) 106; Souza v. U. S. (C. C. A. 9th) 5 F.(2d) 9; Glover v. U. S. (C. C. A. 8th) 147 F. 426, 8 Ann. Cas. 1184; Coyne v. U. S. (C. C. A. 5th) 246 F. 120; Walker Grain Co. v. Blair Elevator Co. (C. C. A. 5th) 254 F. 422; 1 Zoline’s Fed. Crim. Law and Procedure, p. 306. As bearing upon the question generally, see 2 Wigmore on Evidence (2d Ed.) § 982, p. 366, and note 16 Ann* Cas. 872. Whether the judge should have permitted the jury to view the premises where the sales of liquor were said to have been negotiated was a matter resting in his sound discretion, and his action with respect thereto is not subject to review. 26 R. C. L. 1017. The denial of the motion for a new trial made on the ground of improper comments in the presence of the jury was also a matter resting in his sound discretion. Holmgren v. U. S., 217 U. S. 509, 521, 30 S. Ct. 588, 54 L. Ed. 861, 19 Ann. Cas. 778; Mattox v. U. S., 146 U. S. 140, 13 S. Ct. 50, 36 L. Ed. 917; Newcomb v Wood, 97 U. S. 581, 24 L. Ed. 1085; Sprinkle v. U. S. (C. C. A. 4th) 141 F. 811; Ader v. U. S. (C. C. A. 7th) 284 F. 13. It appears that the learned and careful judge who presided over the trial thoroughly investigated the facts’with regard to the alleged improper comments, and concluded that they could not have influenced the verdict, and an examination of the record with regard to this matter convinces us that he correctly and wisely exercised the discretion reposed in him. There was no error, and the judgment of the District Court is affirmed. Affirmed. The late Judge ROSE concurred in the decision that the judgment below should" }, { "docid": "5914672", "title": "", "text": "with the view that the court was convinced of the guilt of the defendant ? The more this record has been studied and considered, the more difficult it has become to resist the conviction that these questions ought to be answered in the affirmative, to resist the conviction that the course pursued by the court, doubtless inadvertently in the speedy trial of what perhaps seemed an unimportant case, was very likely to intimidate witnesses subsequently called, to prejudice jurors against the defendant, and to lead them to think that the court was strongly impressed with the view of the defendant’s guilt. While there is some conflict among the decisions, the great weight of authority is that the commitment for perjury of, or the direction to file an information for perjury against, the defendant or one of his witnesses in the presence of the jury during the trial of a criminal case against him, is a fatal error. Rutherford v. United States, 258 Fed. 855, 860, 863, 169 C. C. A. 575, 580, 583; Reed v. State, 5 Okl. Cr. 365, 114 Pac. 1114; Glover v. United States, 147 Fed. 426, 427, 429, 77 C. C. A. 450, 451, 453, 8 Ann. Cas. 1184; State v. Hughes, 33 Kan. 23, 26, 27, 5 Pac. 381; Martin v. State, 130 Ark. 442, 443, 197 S. W. 861; Brandon v. State, 75 Miss. 904, 23 South. 517, 518; Keiser et al. v. Yandes, 45 Ind. 175, 177; State v. Swink, 151 N. C. 726, 66 S. E. 448, 449; State v. Primmer, 69 Wash. 400, 125 Pac. 159. If the thought suggests itself that Paine was not the defendant’s witness, the answer is that it was because, though called by the prosecutor, he commenced to testify to a fact favorable to tire defendant that he was taken in hand by the court and at the end of his testimony directed to be committed for perjury. There is nothing in this record to show that the affidavit which was presented to this witness was more truthful in its statements than his testimony under oath" }, { "docid": "15633458", "title": "", "text": "evidence that Vigoretti had knowledge that the cars were stolen; and (3) the failure of the government to prove that the two cars mentioned in counts 16 and 17 were actually transported in foreign commerce. These points will be discussed seriatim, with such statement of the facts relating to each as seems necessary. The so-called “defense of alibi” is a defense only in the sense that any contradiction of facts which the government must prove to establish guilt may be called a “defense.” The burden of proving guilt must always rest upon the prosecutor. Williams v. United States, 158 F. 30, 35 (C. C. A. 8). In the case at bar the government’s witness Barker had identified Vigoretti as the man to. whom he had delivered, in Trenton, N. J., on July 1 or 2, 1932, dock receipts for the stolen cars in question. To contradict this testimony connecting Vigoretti with the illegal transportation, witnesses were produced who testified that he was in Acra, N. Y., on those dates. In charging the jury, the judge said with respect to this testimony: “Well, that is a proper defense under the law, if established, but the burden is not upon the Government. The burden is upon the defendant to establish the alibi; but if under all the circumstances you believe that he could not have been there at a certain time, that is proper under the law.” To charge that a defendant has the burden of establishing an alibi is plainly erroneous, for the burden of proving guilt never shifts from the government. Glover v. United States, 147 F. 426, 431, 8 Ann. Cas. 1184 (C. C. A. 8); Falgout v. United States, 279 F. 513, 515 (C. C. A. 5); Cangelosi v. United States, 19 F.(2d) 923 (C. C. A. 6). But no exception was taken to the charge, and no request made to correct it. While this does not preclude an appellate court from taking note of an error and reversing the judgment, the right to do so is exercised sparingly and only when the court is convinced that serious" }, { "docid": "23271555", "title": "", "text": "5) 46 F.(2d) 731; Pittman v. United States (C. C. A. 8) 42 F.(2d) 793; Lawrence v. United States (C. C. A. 8) 18 F.(2d) 407; Haussener v. United States (C. C. A. 8) 4 F.(2d) 884; Williams v. United States (C. C. A. 8) 3 F.(2d) 129, 41 A. L. R. 328; Neal v. United States (C. C. A. 8) 1 F.(2d) 637; Scaffidi v. United States (C. C. A. 1) 37 F.(2d) 203. A witness may not be asked if he has been accused or arrested for a crime, for the sufficient reason that it calls for hearsay evidence, and because accusation carries no implication of guilt. Glover v. United States (C. C. A. 8) 147 F. 426, 430, 8 Ann. Cas. 1184; Pittman v. United States (C. C. A. 8) 42 F.(2d) 793; State v. Greenburg, 59 Kan. 404, 53 P. 61. Tested by these rules, the questions asked on cross-examination of the defendant were improper. That a controversy occurred, some thirteen months after the sale charged, between a narcotic agent and the defendant over the repayment of $25, or that at an unnamed date the two of them had a conversation concerning other morphine, did not impeach the credibility of the witness. But, even if the cross-examination were proper, the evidence received was not admissible on rebuttal to contradict defendant, for it concerns a collateral matter, as to which inquiry stopped with the answers of the witness. The government states in its brief that the defendant, on direct examination, testified that he knew nothing about the morphine business. The record does not substantiate this statement. One other point is stressed. From the brief of appellant, purporting to quote the testimony verbatim, it appears that the narcotic agent was asked whether he “had information that morphine was being sold by this defendant at the Sun Drug Store,” and that his answer was received over objection. The record, by which we must go, does not disclose either objection or exception. Since the case must be retried, it may be said that such information is not competent evidence of" }, { "docid": "9464987", "title": "", "text": "here charged, and open to inference that they were the outgrowth of a continuing clandestine liquor traffic, were competent evidence, at least by way of showing the intent of defendant’s taxicab trip to Detroit, including knowledge or ignorance of the fact that his own car, laden with whisky, was following him. Being thus competent, it was not made incompetent because of a tendency to show guilt of another offense. Tucker v. United States (C. C. A. 6) 224 Fed. 833, 840, 140 C. C. A. 279. 5. Plaintiff in error urges that his conviction was had largely upon the testimony of Dotson and Gill, and complains that the trial court did not, upon its own motion, instruct the jury that the testimony of these witnesses should be carefully scrutinized, and believed only when corroborated by other testimony in the case. The failure to so instruct would not be reversible error, even had it been excepted to, as it was not. While it would have been better practice to caution the jury against relying too greatly upon the testimony of these accomplices, and to require corroborating testimony before giving it credence, the federal courts recognize no rule of law forbidding convictions on the testimony of accomplices alone, if helieved by the jury. Holmgren v. United States, 217 U. S. 509 523, 524, 30 Sup. Ct. 588, 54 L. Ed. 861, 19 Ann. Cas. 778; Caminetti v. United States, 242 U. S. 470, 495, 37 Sup. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; Ray v. United States (C. C. A. 6) 265 Fed. 257, 258. 6. ‘Dotson testified, on cross-examination, in answer to questions evidently intended to discredit him, that he was then an inmate of a prison upon conviction of larceny. On redirect examination he was allowed to explain his conviction and to assert his innocence of guilt. There was no error in this, nor in allowing him to state in that connection that he was “innocently implicated” in the offense charged here, in 'that he was driving the car for Wagman under" }, { "docid": "23271554", "title": "", "text": "him insensible to the obligations of an oath to speak the truth” [Miller v. Territory of Oklahoma (C. C. A. 8) 149 F. 330, 338, 9 Ann. Cas. 389] ; when such a question is asked and answered, the inquiry is ended; the government is bound by the answer in that it may not, on rebuttal, offer countervailing proof [Fisk v. United States (C. C. A. 6) 279 F. 12; Billiard v. United States (C. C. A. 4) 245 F. 837; Smith v. United States (C. C. A. 9) 10 F.(2d) 787, 788]. To this latter rule, there is one exception : In criminal cases a witness may be asked, for purposes of impeachment, whether he has been convicted of a felony, infamous crime, petit larceny, or a crime involving moral turpitude, and on rebuttal the record of such conviction is admissible. Middleton v. United States (C. C. A. 8) 49 F.(2d) 538; Glover v. United States (C. C. A. 8) 147 F. 426, 8 Ann. Gas. 1184; Williams v. United States (C. C. A. 5) 46 F.(2d) 731; Pittman v. United States (C. C. A. 8) 42 F.(2d) 793; Lawrence v. United States (C. C. A. 8) 18 F.(2d) 407; Haussener v. United States (C. C. A. 8) 4 F.(2d) 884; Williams v. United States (C. C. A. 8) 3 F.(2d) 129, 41 A. L. R. 328; Neal v. United States (C. C. A. 8) 1 F.(2d) 637; Scaffidi v. United States (C. C. A. 1) 37 F.(2d) 203. A witness may not be asked if he has been accused or arrested for a crime, for the sufficient reason that it calls for hearsay evidence, and because accusation carries no implication of guilt. Glover v. United States (C. C. A. 8) 147 F. 426, 430, 8 Ann. Cas. 1184; Pittman v. United States (C. C. A. 8) 42 F.(2d) 793; State v. Greenburg, 59 Kan. 404, 53 P. 61. Tested by these rules, the questions asked on cross-examination of the defendant were improper. That a controversy occurred, some thirteen months after the sale charged, between a narcotic agent and" }, { "docid": "13463318", "title": "", "text": "from other sources, the defendant should have been permitted to do so. Scott v. United States, 172 U. S. 343, 19 Sup. Ct. 209, 43 L. Ed. 471; Dodge v. State, 122 Ala. 97, 26 South. 200, 82 Am. St. Rep. 23, and note, pp. 25 to 41; Turnpike Co. v. Loomis, 32 N. Y. 127, 88 Am. Dec. 311, note, p. 321. Sixth. Assignments 9 and 10 relate to the admission of testimony over defendant’s objection, of an alleged offer of compromise, made by Ihe defendant Woods, for a separate and distinct offense under the Harrison Anti-Narcotic Drug Act, not of the kind covered o- included here, but for the failure, for some time prior to the time o: the commission of the alleged offense, to keep proper records of his transactions as a dentist in handling opiates. What was done respectirg this offer of compromise, the record does not show. We think it related too remotely to the offense here charged to be admitted as an evidence of guilt. We can but feel that this evidence tended to prejud ce the defendant, and should not have been brought into the case. Seventh. Assignment 20 relates to exceptions to the charge of the district judge to the effect that there was greater probability of the truth of the testimony of two accomplices than of one. We are not prepared to controvert this proposition of law announced by the trial court. In the case of Caminetti v. United States, 242 U. S. 470, 495, 37 Sup. Ct. 192, 61 L. Ed. 442, L. R. A. 1917E, 502, Ann. Cas. 1917B, 1168, it was held that a conviction may be had upon the testimony of a;complices, if the jury believe them. Wallace v. United States, 243 Fed. 300, 156 C. C. A. 80 (certiorari denied, 245 U. S. 650. 38 Sup. Ct. 11, 62 L. Ed. 531); Hollis v. United States, 246 Fed. 832, 159 C. C. A. 134; Graboyes v. United States, 250 Fed. 793, 163 C. C. A. 125. The charge of the court complained of states the law" }, { "docid": "16014639", "title": "", "text": "of the principal witness for the government, to ask him by way of impeachment as to indictments against him in cases wherein he had not been convicted. The court ruled that the witness might be asked as to convictions of crime, but not as to indictments and accusations against him. This was clearly correct. The scope of the cross-examination is governed, of course, by the federal, and not by the state, practice. Rosen v. U. S., 245 U. S. 467, 38 S. Ct. 148, 62 L. Ed. 406; Hendrey v. U. S. (C. C. A. 6th) 233 F. 5; Erwin v. U. S., 37 F. 470, 488, 2 L. R. A. 229; 27 R. C. L. 57; 1 Zoline’s Fed. Crim. Law and Procedure, p. 247. And in the view taken by the federal decisions the fact that an unproven charge has been made against one does not tend logically to prove his guilt of an offense or to affect the credibility of his testimony. Consequently it is not permissible, on cross-examination, even for the purpose of impeachment, to inquire as to indictments or accusations against the witness. Mitrovich v. U. S. (C. C. A. 9th) 15 F.(2d) 163; Dawson v. U. S. (C. C. A. 9th) 10 F.(2d) 106; Souza v. U. S. (C. C. A. 9th) 5 F.(2d) 9; Glover v. U. S. (C. C. A. 8th) 147 F. 426, 8 Ann. Cas. 1184; Coyne v. U. S. (C. C. A. 5th) 246 F. 120; Walker Grain Co. v. Blair Elevator Co. (C. C. A. 5th) 254 F. 422; 1 Zoline’s Fed. Crim. Law and Procedure, p. 306. As bearing upon the question generally, see 2 Wigmore on Evidence (2d Ed.) § 982, p. 366, and note 16 Ann* Cas. 872. Whether the judge should have permitted the jury to view the premises where the sales of liquor were said to have been negotiated was a matter resting in his sound discretion, and his action with respect thereto is not subject to review. 26 R. C. L. 1017. The denial of the motion for a new trial made" }, { "docid": "7752632", "title": "", "text": "defendant were overruled by the court, and proper exceptions saved. As these questions were not whethef defendant had ever been convicted of possession of stolen cars, it was prejudicial error to have overruled the objections. The mere fact that a person is found in possession of stolen cars, without substantial evidence that he knew they , had been stolen, is not a violation of this act of Congress. Besides, a mere charge of having committed a crime, when there was no conviction, is insufficient. Glover v. United States, 147 F. 426, 429, 430,. 8 Ann. Cas. 1184 (C. C. A. 8); Fish v. United States, 215 F. 544, L. R. A. 1915A, 809 (C. C. A. 1); Coyne v. United States, 246 F. 120 (C. C. A. 5); Paris v. United States, 260 F. 529, 531, 532 (G. C. A. 8). In Glover v. United States, this court held the law to be: “It is competent for the purpose of discrediting a witness to show that he has been convicted of a crime. * * * Whatever may be the limit in this respect, n’othing short of a conviction of a crime is admissible for the purpose of. impeachment. A mere accusation or indictment will not be admitted, for the reason that innocent men are often arrested charged with a criminal offense.” In that ease the questions objected to were asked of witnesses for the defendant, and over defendant’s objection permitted. The judgment was for this error reversed. The authorities relied on by counsel for the government are not in point. Without reviewing all of them, it is sufficient to refer to Raffel v. United States, 271 U. S. 494, 497, 46 S. Ct. 566, 568 (70 L. Ed. 1054), mainly relied on by counsel for the government. What was there decided was that, “when he [the defendant] takes the stand in his own behalf, hfe does so as any other witness, and within the limits of the appropriate rules he may he cross-examined as to the facts in issue. * * * If, therefore, the questions asked of the" }, { "docid": "13518621", "title": "", "text": "of the witness Cuva. This witness, sworn on behalf of defendant, testified on direct examination that defendant was working for him on his farm some miles distant from Omaha on April 2d and 5th— the days when it is charged defendant made the sales of liquor in Omaha.' This was the entire scope of the direct examination. On cross-examination the district attorney was allowed, over objection, to inquire of the witness at length whether an old still had not been found on his farm, and whether he had not been arrested for having the still in his possession, but released on bail. We think this was improper cross-examination, and highly prejudicial to the defendant. It was not within the scope of the direet examination. It.was not the proper way in which to attack the credibility of the witness Cuva, if that was the purpose. 2 Wigmore on Evidence, § 982; Glover v. United States, 147 F. 426, 430, 77 C. C. A. 450, 8 Ann. Cas. 1184 (C. C. A. 8); Coyne v. United States, 246 F. 120, 158 C. C. A. 346; Walker Grain Co. v. Blair Elevator Co., 254 F. 422, 166 C. C. A. 54; Haussener v. United States, 4 F.(2d) 884, 887 (C. C. A. 8). The evidence sought was incompetent, if the attempt was to connect defendant with a still on the Cuva farm. It was prejudicial error to allow the cross-examination mentioned, and the judgment for that reason must be reversed. Specification of error 7 challenges the action of the court in overruling a motion for a new trial. That the ruling of the court on a motion for new trial furnishes no basis for an assignment of error is so well settled that citation of authorities is unnecessary. Reversed and remanded for a new trial." }, { "docid": "15394185", "title": "", "text": "and credibility of a witness should be borne in mind. In Glover v. United States, 147 F. 426, 429, 430, 77 C. C. A. 450, 454 (8 Ann. Cas. 1184), this court again dealt with a situation where a prosecuting attorney inquired of witnesses as to whether they had not been arrested at some time, and said: “It is competent for the purpose of discrediting a witness to show that he has been convicted of a crime. The general rule is that the crime must rise to the dignity of a> felony or petit larceny.” Further the court said-: “The proper evidence of a conviction of crime is the record thereof. * * * Whether, it is permissible, in the absence of any statute in the Indian Territory regulating the practice in this respect, to undertake to prove by cross-examination of the witness, without the production of the record, that he had been convicted of a crime, for the purpose 'merely of affecting his credibility and not as to his competency, it will be time enough for this court to determine when the question is properly ' before it.” The question is now properly before this court. Therefore the time has arrived to determine it.’ At common law persons convicted of infamous crimes were incompetent to be witnesses at all, on the theory that they were so destitute of moral honesty that truth could not within them dwell. In nearly all of the states of the Union this disqualification of the witness is now removed, and one who has been convicted of crime is a competent witness, but the general provision of state statutes is that the conviction may be shown to affect credibility. As to some crimes, such as perjury, it is pointed out by the Supreme Court in Rosen et al. v. United States, 245 U. S. 467, 471, 38 S. Ct. 148, 150 (62 L. Ed. 406), the disability to testify survived longer than some of the other common-law disabilities. The common-law rule that a witness previously convicted of a felony is disqualified ■ to give testimony," } ]

[ { "docid": "13505353", "title": "", "text": "vast majority of the corporation’s capital, personally guaranteed a loan to the corporation, and drawn no salary since the stay pending appraisal was issued. There was also evidence that the non-electing shareholder resigned as vice-president and director before he filed for dissolution, and refused to contribute time and money to the corporation in violation of an agreement with the electing party. Also, the corporate faced dire financial circumstances, including defaults in payments on trust deeds. Finding that the trial court did not abuse its discretion in allowing the shareholder’s revocation of his election, the judgment below was upheld. It is true that the Rhode Island Statute does not expressly state that the election to purchase the plaintiff’s stock is irrevocable. Defendants point to the lack of such language and the fact that in other statutes, such as § 7-1.1-74, the General Assembly of the State of Rhode Island expressly made elections irrevocable. From this they conclude that the corporation’s election is revocable at will, and insist that the election to purchase the plaintiff’s stock has been effectively revoked. If the New York or California statutes considered in Rey, supra, and Brodsky, supra, were more similar to R.I.Gen.Laws § 7-1.1-90.1, the defendants’ argument might have some bite to it. The differences, however, are remarkable. New York Business Corporation Law § 1118 did not provide for a bond to be posted after election. More importantly, neither the New York statute nor the California statute provided for immediate termination of the non-electing stockholder’s rights, or for payment of interest after the election. The Rhode Island statute, however, does contain these provisions. A strong and probably successful argument can be mounted that the Rhode Island General Assembly did not authorize revocation at will of the election to purchase plaintiff’s stock. The purpose of the statute, to bring peace to the troubled waters roiled by stockholder dissent, would result in a fragile peace if the corporation could simply withdraw its election on a whim. This construction of the statute would provide a corporation a potent weapon to temporarily silence an opposing stockholder, since during the" } ]

[ { "docid": "7173689", "title": "", "text": "provision of Rhode Island law, such as those that govern priorities, liens, and attachments. In our view, the “appropriate” terms and conditions provision is directed to the mechanics of the stock purchase and payment as between the company and the former shareholder. It is too big a leap to treat this terse and general provision as allowing the judge in the stock buyout case to override an entire body of state lien law protecting the interests of third parties in other cases, merely because the proceeds happen to derive from an award made by the judge. This is an untenable intention to impute to the Rhode Island legislature based on an ancillary provision in a narrowly focused statute regulating stock buyouts. Bogosian also argues that the $10,-000 monthly payments should be exempt from the liens against her because they were granted by Judge Boyle for her sustenance. However, Bogosian did not object to the writ of trustee process and did not attend the hearing at which she could have asserted exemptions to the writ. As for Bogosian’s claim of lack of personal notice, she could have pursued it before the magistrate judge by a post-judgment motion but may not collaterally attack the ruling in this court. If our resolution of this issue creates hardship for Bogosian, she remains free to ask the district court to reconsider the contemplated three-year schedule of payments by WRC. Three remaining issues raised by WRC do not require much discussion. WRC claims that the judge should have adjusted the interest rate downward for Bogosian’s intransigence in resisting a settlement. Most of the evidence concerned a global settlement which would have resolved not only the stock buyout case but also other controversies between Bogosian and her brothers. Any judgment about the reasonableness of the parties’ positions on settlement is peculiarly within the expert knowledge of the district judge, and we decline to disturb that judgment here. We also reject WRC’s claim that Judge Boyle was required to recuse himself. The ground for the motion was that Judge Boyle conducted of an informal settlement conference concerning the" }, { "docid": "7173692", "title": "", "text": "orders of July 31, 1997, and January 2, 1998, and remand for. proceedings consistent with this opinion. It is so. ordered. . This date was misstated by the district court as February 16, 1989. R.I. Gen. Laws § 7-1.1-90.1 makes it clear that the earlier date controls. . WRC appealed this order to this court, where it was affirmed on January 15, 1991. Bogosian v. Woloohojian Realty Corp., 923 F.2d 898 (1st Cir.1991). In its appeal, WRC argued that the security granted was excessive and that the judge did not have the equitable power to grant interim relief. It also argued that it had revoked its election to purchase Bogosian's shares. . The interpleader action was intended to allow the court to settle the conflicting claims of Bogo-sian and her creditors to the sums of money owed to Bogosian by WRC. It eventually included as defendants not only Bogosian, the IRS, and the three law firms named in the text, but also several other law firms who asserted attorney's liens against Bogosian, and Rhode Island Hospital Trust National Bank, who was a judgment creditor of Bogosian. . The statute reads in part, \"The petitioner shall be entitled to interest on the purchase price of the shares from the date of the filing of the election to purchase the shares, and all other rights of the petitioner as owner of the shares shall terminate at such date.\" R.I. Gen. Laws 7-1.1-90.1. . In 1997, the Rhode Island Superior Court for Providence County awarded compound prejudgment interest under R.I. Gen. Laws 7-1.1-74 (regarding judgments involving corporate repur chasing of shares). Diluglio v. Providence Auto Body, Inc., 1997 R.I.Super. 240, 1997 WL 839900 (1997). This decision cites for support Judge Boyle’s earlier opinion in this case, but the opinion misreads Judge Boyle’s opinion as if it stated that the Rhode Island Supreme Court had approved compound interest in this type of situation. The Rhode Island Supreme Court has not approved the awarding of compound interest, and the decision in Diluglio cites no Rhode Island precedent to support its decision. The only stock buyout" }, { "docid": "7173687", "title": "", "text": "WRC is entitled to an interest abatement from the time of the delivery of the checks to the time that the overdraft protection expired. As to the period following expiration, our own inclination would be to deny any further abatement as duplicative of the abatement due to the deposit in the registry; but this is a choice within the equitable discretion of the district court, which is free on remand to decide the issue either way. Payments Directly to Bogosian. Both WRC and the Bank object to the provision in Judge Boyle’s July 31, 1997, order (quoted above) that all payments in the stock buyout case be made directly to Bogosian, without regard to the interpleader case or any of the liens against the judgment. They argue that this provision conflicts with the Bank’s right to collect its judgments under Rhode Island law and with Chief Judge La-gueux’s orders in the interpleader case that the proceeds be held pending decision in that action. In addition, WRC argues that it may be exposed to multiple liability if it is forced to pay directly to Bogosian money on which there* are outstanding liens. Bogosian says that Judge Boyle’s order does not conflict with Chief Judge Lagueux’s order. We need not decide whether there is a direct conflict between the district court orders or, if so, which would prevail. Even if there was no conflict with another district court order, it is our view that Judge Boyle did not have the power to override the Bank’s writ of trustee process (or other hens obtained by Bogosian’s creditors). We face here a purported conflict between provisions of Rhode Island law—on one side, the Bank’s trustee process obtained under Rhode Island procedures, and on the other R.I. Gen. Laws § 7-1.1-90.1, which directs that the court “may decree such other terms and conditions of sale as it determines to be appropriate, including payment of the purchase price in installments extending over a period of time.” Bogosian has not pointed to any case holding that this general language in the stock buyout statute overrides any other" }, { "docid": "1900347", "title": "", "text": "interest. . The district court originally entered judgment on May 9, 2006 based on the jury’s verdict the previous day. An Amended Judgment was entered on March 30, 2007 to re- fleet Tobin's acceptance of the remittitur. Both parties then filed objections to the calculation of prejudgment interest. The Second Amended Judgment was entered on April 11, 2007, after the court issued a Memorandum and Order addressing their contentions. . The issue in Conetta was the proper rate of prejudgment interest. Under federal law, the award of prejudgment interest and the appropriate rate, if not prescribed by the statute providing the plaintiff’s recovery, are discretionary decisions for the judge. Conetta, 236 F.3d at 77; Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 224-25 (1st Cir. 1996) C‘[I]f the particular federal statute is silent, courts have discretion to select an appropriate rate, and they may look to outside sources, including state law, for guidance.”). The district court in Conetta initially ordered prejudgment interest at six percent, but increased the rate in response to a post-judgment motion to the twelve percent figure set by state law (in that instance, Rhode Island). In Doty, the district court had denied prejudg ment interest on the damages awarded for pendent Massachusetts claims. 908 F.2d at 1062-63. In both instances, we held that, because the state and federal claims were identical, the plaintiff was entitled to the advantages provided by state law. . Where the federal and state claims are not fully aligned, however, it would be \"appropriate for the district court to consider applicable federal standards in fashioning an interest award.” Conway, 825 F.2d at 602; see also Doty, 908 F.2d at 1063 (\"Ordinarily, where the component of state law damages is not clearly discernible, it is appropriate for the district court to consider federal standards in determining the propriety of prejudgment interest.”). . The entitlement was \"presumptive” because “a trial court has some discretion under Massachusetts practice to adjust an interest award if a prevailing litigant has been responsible for unnecessary delays.” Foley, 948 F.2d at 17-18 (citing Currier v. Malden Redev." }, { "docid": "7173691", "title": "", "text": "checks sent by WRC to Bogosian through F&M which— according to WRC—led him to acquire personal knowledge of disputed material facts in the case. Judge Boyle was acting in a judicial capacity in seeking to resolve a lawyer-client controversy affecting litigation before him, namely, the stock buyout ease. Accordingly, whatever knowledge he acquired was not “personal” knowledge raising a recusal question. In re Martinez-Catala, 129 F.3d 213, 219 (1st Cir.1997). Finally, WRC says that it was entitled to a new trial in the stock buyout case because of new evidence. The evidence here is Bogosian’s successful support for a lesser interest rate (8 percent simple interest) in another one of her many cases. It is difficult to imagine that WRC seriously imagined that the district court would reopen 10 years of litigation on this ground. In all events, the refusal to do so was not an abuse of discretion. For the reasons stated above, we affirm the district court’s order of November 3, 1997, and affirm in part and reverse in part the district court’s orders of July 31, 1997, and January 2, 1998, and remand for. proceedings consistent with this opinion. It is so. ordered. . This date was misstated by the district court as February 16, 1989. R.I. Gen. Laws § 7-1.1-90.1 makes it clear that the earlier date controls. . WRC appealed this order to this court, where it was affirmed on January 15, 1991. Bogosian v. Woloohojian Realty Corp., 923 F.2d 898 (1st Cir.1991). In its appeal, WRC argued that the security granted was excessive and that the judge did not have the equitable power to grant interim relief. It also argued that it had revoked its election to purchase Bogosian's shares. . The interpleader action was intended to allow the court to settle the conflicting claims of Bogo-sian and her creditors to the sums of money owed to Bogosian by WRC. It eventually included as defendants not only Bogosian, the IRS, and the three law firms named in the text, but also several other law firms who asserted attorney's liens against Bogosian, and Rhode Island" }, { "docid": "7173680", "title": "", "text": "simple interest). See R.I. Gen. Laws § 9-21-10. The one explicit exception to the general rule of simple interest in Rhode Island proceedings is for certain eminent domain proceedings, for which a statute expressly allows compound prejudgment interest. See R.I. Gen. Laws § 37-6-23. Rhode Island courts consider prejudgment interest statutes to be statutes in derogation of the common law, and construe them strictly. See Clark-Fitzpatrick, Inc./Franki Foundation Co. v. Gill, 652 A.2d 440, 451 (R.I.1994). R.I. Gen. Laws 7-1.1-90.1 is one of a number of statutes that refer to an award of interest from a certain date, with no indication as to whether interest should be compound or simple. But prior to Judge Boyle’s decision, it does not appear that any Rhode Island court had allowed compound prejudgment interest under any statute that did not specifically authorize compound interest— prior to Judge Boyle’s decision to award compound interest. Indeed, the Rhode Is land Supreme Court appears to disfavor compound interest. See Atlantic Refining Co. v. Director of Public Works, 104 R.I. 436, 244 A.2d 853 (1968). Accordingly, we conclude that Rhode Island courts would not allow an award of compound prejudgment interest under R.I. Gen. Laws 7-1.1-90.1. As simple interest, the 11 percent award can stand despite WRC’s claim that it is itself excessive. But 11 percent is close enough to the boundary of reasonableness that we do not think that the change from compound to simple interest is enough to justify raising the rate any higher. In addition, Bogosian has not requested such a recalculation. Therefore the rate of 11 percent per annum simple interest will stand. Interest Abatements. Perhaps the most difficult issue in this case concerns the district court’s refusal to treat three attempted or actual payments by WRC as cutting off the accrual of interest as to those amounts. Each of these claimed interest abatements comprises a different story. However, before turning to those stories, we address Judge Boyle’s general rationale for not allowing any of the interest abatements. Judge Boyle based his disallowance of the interest abatements on the fact that he had not" }, { "docid": "6176375", "title": "", "text": "to have been rejected if the insurer does not respond within a period of thirty (30) days. RI.Gen.Laws § 27-7-2.2. Rhode Island’s prejudgment interest statute provides: Interest in civil action.—In any civil action in which a verdict is rendered or a decision made for pecuniary damages, there shall be added by the clerk of the court to the amount of damages, interest at the rate of twelve per cent (12%) per annum thereon from the date the cause of action accrued which shall be included in the judgment entered therein. This section shall not apply until entry of judgment or to any contractual obligation where interest is already provided or as to any condemnation action. Id. § 9-21-10. The question is whether the prejudgment interest statute, § 9-21-10, applies to the rejeeted-settlement-offer statute, § 27-7-2.2. Ordinarily, we would certify to a state supreme court a question of first impression involving the interpretation of a state statute. In this ease, however, the language of the implicated statutes, the evident purpose of the statutes, and the case law are so clear that we think certification would be a waste of judicial resources. Arnica raises two issues: whether the Rhode Island Supreme Court would construe § 27-7-2.2 as not applicable to direct action suits against insurers; and whether the Rhode Island Supreme Court would limit the interest due on cases arising under § 27-7-2.2 to that accruing after judgment. A. The Applicability of § 27-7-2.2 to the Direct Action Statute Arnica’s argument on the first issue runs as follows. The starting point is that statutes granting interest on judgment must be strictly construed because they are in derogation of the common law. So construed, § 27-7-2.2 applies only to actions “in which the defendant is covered by liability insurance.” Arnica therefore contends that, because it is an insurer, and not, in the words of the statute, “a defendant covered by liability insurance,” it does not come within the compass of the statute. It argues that the phrase “written offer to the defendant’s insurer” is directed at the situation where the decision to settle" }, { "docid": "18214315", "title": "", "text": "and that the Trustee is therefore entitled to recover a total of $24,302,845.24. In re 1031 Tax Group, LLC, 439 B.R. 47, 78. The August 27 Opinion resolved the issue of liability with respect to an additional transfer to Boulder in the amount of $18,475,200 on June 26, 2006, but did not resolve the amount the Trustee is entitled to recover because of an open factual issue that has now been resolved by a stipulation of facts. (ECF # 76.) In a separate Supplemental Memorandum Opinion, also entered today, the Court has concluded that the Trustee is entitled to recover $3,340,261.22 based on a pro rata allocation of the June 26, 2006 transfer. The August 27 Opinion also directed the parties to file additional briefs addressing what prejudgment interest, if any, the Trustee is entitled to recover on account of the fraudulent transfer claims. Id. The Boulder Defendants argue that the Trustee is entitled to prejudgment interest at the federal judgment rate pursuant to 28 U.S.C. § 1961 from the date the adversary proceeding was commenced, March 20, 2009 (the “Commencement Date”), until judgment is entered. (The Boulder Defendants’ Mem. of Law Regarding the Application of Prejudgment Interest to the Trustee’s Claims For Fraudulent Conveyance (the “Boulder Memorandum”) at 2.) The federal judgment rate on March 20, 2009 was .64%. Post-Judgment Interest Rates, http://www.utd.uscourts.gov/ documents/int2009.html (last visited Nov. 1, 2010). The Trustee argues that the Court should award prejudgment interest from the Commencement Date, at the federal judgment rates that were in effect on the dates of the fraudulent transfers, September 7, 2005, June 26, 2006 and September 29, 2006, until the date of entry of the judgment, and post-judgment interest thereafter at the federal judgment rate. (Trustee’s Mem. of Law Supporting Award of Pre-Judgment Interest on Judgment For Fraudulent Conveyances (the “Trus tee Memorandum”) at 2.) More specifically, the Trustee asks the Court to apply a 3.76% and a 4.90% interest rate for the September 7, 2005 and September 29, 2006 transfers, respectively. (Trustee Memorandum at 4.) The federal judgment rate on June 26, 2006 was 5.24%. Post-Judgment Interest" }, { "docid": "3917", "title": "", "text": "on the award of prejudgment interest on January 31, 1997 (the 1997 judgment date). In the plaintiffs’ brief to the district court, they proposed that postjudgment interest be awarded from the settlement date until the City paid the prejudgment interest award. In its brief, the City pointed out that, as of the settlement date, there was no judgment awarding prejudgment interest, and argued that post-judgment interest on the prejudgment interest could only run from the 1997 judgment date. In their reply brief, the plaintiffs countered that the City’s position implied that, if the postjudgment period had not commenced for the prejudgment interest award, then the plaintiffs were still entitled to prejudgment interest on the award of prejudgment interest from the settlement date through the 1997 judgment date. The district court viewed the parties’ arguments as a dispute over the dividing line between prejudgment and postjudgment interest, which could be resolved by determining the date post-judgment interest on the prejudgment interest award should begin. On the grounds that the prejudgment interest award would not be “ ‘ascertained’ in any meaningful way,” see Kaiser Aluminum & Chem. Corp. v. Bonjomo, 494 U.S. 827, 836, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990), until the 1997 judgment date, the district court concluded that postjudgment interest would run from the 1997 judgment date, with prejudgment interest accruing until that point. Since the prime rate was well above the statutory post-judgment interest rate over the period, the use of the prejudgment rate over this period would result in a significantly higher award. II. Unlike postjudgment interest, there is no statutory rate of prejudgment interest, see Gorenstein Enters, v. Quality Care-U.S.A., Inc., 874 F.2d 431, 436 (7th Cir.1989), and the amount of prejudgment interest required to properly compensate the victim can vary depending on the particular circumstances of the case. Accordingly, we entrusted the details of the calculation to the discretion of the district court, see 31 F.3d at 587, and our review is limited to whether the district court has reasonably applied the appropriate federal common law principles-including the guidance provided by our previous opinion. See" }, { "docid": "18531855", "title": "", "text": "Rhode Island law, pre-judgment interest on a pecuniary damage award accrues at 12% per annum from the “date the cause of action accrued.” The Plaintiffs’ cause of action accrued at the time the Reposas became aware of the defects in the vessel, and when the fraudulent representations made by Lee to induce the sale were discovered. The first such incident manifested itself on July 1,1984. Therefore, Plaintiffs are entitled to statutory interest of 12% from 7/1/84 to 12/29/88, the date of this Court’s first judgment in this adversary proceeding. Subsequent to December 29, 1988, the federal interest rate applies, calculated according to 28 U.S.C. § 1961. Loft v. Lapidus, 936 F.2d 633 (1st Cir.1991) (“section 1961 relates only to post-judgment interest, specifically providing that ‘[s]uch interest shall be calculated from the date of the entry of judgment ’ State law governs the prejudgment interest rate.”) 936 F.2d at 639 (other citations omitted). 28 U.S.C. § 1961 provides, in relevant part, that (a) Interest shall be allowed on any money judgment in a civil case recovered in a district court.... Such interest shall be calculated from the date of the entry of judgment, at a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of the judgment. For the period December 15, 1988 through January 12, 1989, the Treasury bill rate was 9.2%. Since our original judgment entered on December 29,1988, the applicable post-judgment interest rate was 9.2%, and should be the figure used to determine interest from December 30, 1988, until the judgment is paid. Accordingly, the compensatory judgment interest calculation is as follows: (1) pre-judgment interest on $59,395 from 7/1/84 to 12/29/88 at 12% amounts to $39,656; and (2) post-judgment interest on $99,051 from 12/30/88 through 9/20/95, at 9.2% is $65,033, for a total compensatory damage award of $164,084. See Exhibit A. II. The Punitive Damage Award In our August 1994 decision on remand, we reviewed at length the" }, { "docid": "12076234", "title": "", "text": "reasons, we conclude that, whether or not the Rhode Island statute means to provide a corporation with total freedom to change its mind and revoke a previous buyout election, the Rhode Island statute gives the court, faced with a buyout election and a valuation impasse, the legal power to require the corporation to post security. WRC makes one additional argument. It says that, even if the court has the power to require security, the amount of security that the court required, namely a mortgage for $10 million, was excessive. The record shows, however, that Mrs. Bo-gosian, in an affidavit, swore her shares were worth $9 'million. See Robinson v. Watts Detective Agency, Inc., 685 F.2d 729, 739 (1st Cir.1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 728, 74 L.Ed.2d 953 (1983) (“an owner of a business is competent to give his opinion as to the value of his property”). It also indicates that in a different case, her brother’s executors posted a $10 million bond as security for a one-third ownership interest in WRC. Moreover, Mrs. Bogosian is entitled to statutory interest on her shares which is accumulating at a rate of 12%. We cannot say that the court required security in excess of what the Rhode Island statute permits, namely an amount “sufficient to assure to the petitioner payment of the value of such shares.” Rhode Island Gen.Laws § 7-1.1-90.1. II The “Interim, Distribution” Order A Appealability The order requiring WRC to pay Mrs. Bogosian $100,000 plus $10,000 per month during the pendency of the suit, with all payments credited against her final award, is appealable under 28 U.S.C. § 1292(a)(1) for the same reasons as the security order; it is a mandatory injunction. It is directed to a party (WRC), it orders that party to take a set of particular actions (sending money each month), it is more than minimally coercive, it has serious consequences, it is enforceable through contempt, and it provides at least part of the relief sought by the suit. See Chronicle Publishing Co. v. Hantzis, 902 F.2d at 1030-31; Carson v. American Brands, Inc.," }, { "docid": "21411443", "title": "", "text": "Rhode Island law.”). All additional payments will also be applied first to the interest then due, the balance, if any, to be applied to the principle amount then due. WRC claims, and the plaintiff disputes, that the corporation is entitled to “interest abatements” or “payment credits” for other amounts. WRC claims that no interest should accrue on any amount it offered in payment of its debt, as of the date such payment was tendered, whether or not the funds were paid to the plaintiff or for her benefit as a result of WRC’s offer. See Illini FS, Inc. v. Myerscough, 137 Ill.App.3d 861, 92 Ill.Dec. 440, 445, 484 N.E.2d 1385, 1390 (1985) (partial payment on a debt prevents accrual of interest on the portion paid). WRC would term such release from interest liability an “interest abatement.” For example, WRC claims that as of the date it tendered $1 million to the plaintiffs former attorneys in this matter, December 23, 1992, interest should no longer have accrued on that amount, because the plaintiff was under a supposed duty to accept and apply the funds WRC unilaterally offered, on the terms it directed. See, e.g., National Bank of Commonwealth v. Mechanics’ Nat’l Bank, 94 U.S. 437, 439, 24 L.Ed. 176 (1876) (where a creditor accepts voluntary payment, it must be applied as the debtor directs) (emphasis added). WRC further asserts that the plaintiffs refusal to allow it to substitute collateral so that it could make new financing arrangements entitle it to an interest abatement on the $2.3 million it allegedly would have raised from the date its request was denied by the court, August 15, 1995. In addition, WRC paid $1,095,000 into the Registry of Court in an interpleader action, on March 28 and April 28, 1994, for which it claims an interest abatement is due. $1,000,000 of this amount was the same money that defendant sought to force upon plaintiff in December, 1992. Finally, WRC makes a similar claim to an “interest abatement” for payments made be tween June 15, 1993 and May 15, 1995 into an escrow account, which it" }, { "docid": "23424552", "title": "", "text": "court reverses a judgment of the district court and enters a new money judgment). As a general rule, “[i]n diversity actions, state law determines the rate of prejudgment interest, and postjudgment interest is governed by federal law.” Id. (citing Northrop Corp. v. Triad Int’l Marketing, S.A., 842 F.2d 1154, 1155 (9th Cir.1988)). Here, however, “[t]he parties mutually agreed on the interest rate in the promissory note[s], including the rate that would apply in the event that Smith defaulted on the note[s].” At arbitration, Citicorp requested “interest at the default rate set ... in the Note[s] from March 1, 1991 to the date of entry of judgment and, after judgment until collection.” The arbitrator’s award contained similar language. The arbitrator’s award ordered that interest would accrue at the per diem rate specified “until judgment or paid in full.” Defendants stipulated to the arbitrator’s award. We agree with the district court that the parties contractually waived their right to have post-judgment interest calculated at the federal statutory rate. Contrary to Defendants’ assertion, the language of the arbitration award indicates a mutual intent by the parties to have pre- and post-judgment interest calculated at the contract interest rate. This intent is also embodied in the language of the promissory notes, which adopts the same contract interest rate. Defendants’ final argument that the stipulated rate of interest remains in effect, until superseded by judgment, is similarly unavailing. See Cal. Civ.Code § 3289(a) (providing that “[a]ny legal rate of interest stipulated by a contract remains chargeable after a breach thereof, as before, until the contract is superseded by a verdict or other new obligation.”). Here, the parties specifically agreed that the contract rate of interest would be applied even after judgment was entered. Thus, § 3289 is inapplicable. Accordingly, we affirm the district court’s grant of post-judgment interest based on the mutually agreed upon contract rate set forth in the arbitration award and the promissory notes. Ill For the foregoing reasons, we exercise jurisdiction over this action and affirm the foreclosure judgments and the deficiency judgments as calculated by the district court. AFFIRMED. . Citicorp’s" }, { "docid": "7173690", "title": "", "text": "for Bogosian’s claim of lack of personal notice, she could have pursued it before the magistrate judge by a post-judgment motion but may not collaterally attack the ruling in this court. If our resolution of this issue creates hardship for Bogosian, she remains free to ask the district court to reconsider the contemplated three-year schedule of payments by WRC. Three remaining issues raised by WRC do not require much discussion. WRC claims that the judge should have adjusted the interest rate downward for Bogosian’s intransigence in resisting a settlement. Most of the evidence concerned a global settlement which would have resolved not only the stock buyout case but also other controversies between Bogosian and her brothers. Any judgment about the reasonableness of the parties’ positions on settlement is peculiarly within the expert knowledge of the district judge, and we decline to disturb that judgment here. We also reject WRC’s claim that Judge Boyle was required to recuse himself. The ground for the motion was that Judge Boyle conducted of an informal settlement conference concerning the checks sent by WRC to Bogosian through F&M which— according to WRC—led him to acquire personal knowledge of disputed material facts in the case. Judge Boyle was acting in a judicial capacity in seeking to resolve a lawyer-client controversy affecting litigation before him, namely, the stock buyout ease. Accordingly, whatever knowledge he acquired was not “personal” knowledge raising a recusal question. In re Martinez-Catala, 129 F.3d 213, 219 (1st Cir.1997). Finally, WRC says that it was entitled to a new trial in the stock buyout case because of new evidence. The evidence here is Bogosian’s successful support for a lesser interest rate (8 percent simple interest) in another one of her many cases. It is difficult to imagine that WRC seriously imagined that the district court would reopen 10 years of litigation on this ground. In all events, the refusal to do so was not an abuse of discretion. For the reasons stated above, we affirm the district court’s order of November 3, 1997, and affirm in part and reverse in part the district court’s" }, { "docid": "7173681", "title": "", "text": "853 (1968). Accordingly, we conclude that Rhode Island courts would not allow an award of compound prejudgment interest under R.I. Gen. Laws 7-1.1-90.1. As simple interest, the 11 percent award can stand despite WRC’s claim that it is itself excessive. But 11 percent is close enough to the boundary of reasonableness that we do not think that the change from compound to simple interest is enough to justify raising the rate any higher. In addition, Bogosian has not requested such a recalculation. Therefore the rate of 11 percent per annum simple interest will stand. Interest Abatements. Perhaps the most difficult issue in this case concerns the district court’s refusal to treat three attempted or actual payments by WRC as cutting off the accrual of interest as to those amounts. Each of these claimed interest abatements comprises a different story. However, before turning to those stories, we address Judge Boyle’s general rationale for not allowing any of the interest abatements. Judge Boyle based his disallowance of the interest abatements on the fact that he had not approved the payments at issue. The Rhode Island statute gives the judge general authority, after determining the fair value of the stock to set forth in its order directing that the stock be purchased, the purchase price and the time within which the payment shall be made, and may decree such other terms and conditions of sale as it determines to be appropriate, including payment of the purchase price in installments extending over a period of time. R.I. Gen. Laws 7-1.1-90.1. There is no claim that Judge Boyle barred the prejudgment payments before they were made. Absent such an order (whose validity we need not decide), we see no legal basis for Judge Boyle’s assumption that the court’s prior permission was required. Although the issue is not litigated often, it is a general rule that interest will not accrue after a valid tender. See Garfinkle v. Chestnut Hill Mortgage Corp., 679 F.2d 276, 278 n. 3 (1st Cir.1982); see also Illini FS, Inc. v. Myerscough, 137 Ill.App.3d 861, 92 Ill.Dec. 440, 484 N.E.2d 1385, 1390" }, { "docid": "7173678", "title": "", "text": "it was necessary to fulfill the basic purpose for awarding prejudgment interest in this type of situation. He stated that the plaintiff would not be fairly compensated for the use of her money unless she received compound interest, and that the buyout statute’s provision for interest must therefore allow compound interest. Clearly, if one’s money is held for a number of years, one loses not only the interest one could make on that money each year, but also the profits that could be made from investing that interest each year. As a matter of policy, there is much to be said for Judge Boyle’s approach. Certainly, it is a realistic assessment of the economic consequences for both sides of the case. Given the stock buyout election, Bogosian effectively ceased to be a shareholder under Rhode Island law as of the day she filed for dissolution, received no dividends thereafter, and was deprived not only of immediate payment but therefore also of the income she would have earned thereafter from investing the payment. Conversely, WRC has continued to be able to use Bogosian’s stake, retaining for itself the “earnings” and able to “reinvest” those earnings itself. The difficulty is that the Rhode Island courts, like those of many other states, have historically been hostile to the awarding of prejudgment interest, and, in particular, compound prejudgment interest. Such interest was not allowed at all at common law. See Dobbs, Law of Remedies § 3.6(1) (2d ed.1993). Even after states began to allow prejudgment interest, it was generally only available where the amount of damages was fixed and ascertainable in advance. Cf. Restatement, Second, Contracts, § 354, comment a (1981). Even in liquidated damages cases, only simple (not compound) interest was allowed. See id.; Dobbs, supra, § 3.6(4). Today, in most states, prejudgment interest commonly is only allowed pursuant to statute. See Dobbs, supra, § 3.6(1). The Rhode Island statute that provides generally for prejudgment interest — but does not apply here — specifies that the interest is to be added by the clerk at the rate of twelve percent per annum (i.e." }, { "docid": "21411450", "title": "", "text": "Id. With respect to the amount paid to one of the plaintiffs creditors from the escrow for which the defendant’s attorney acts as escrow agent, however, WRC is entitled to payment credit of the amount paid, because plaintiff agrees that it is entitled to credit. This is not to say, however, that the funds remaining in escrow, or any other funds that this court’s orders direct WRC to pay to the plaintiff may instead be paid to anyone other than the plaintiff. Only when funds are applied pursuant to this court’s order can WRC claim to be. entitled to any credit on the total amount it owes. Id.; see also Flanders & Medeiros v. Bogosian, 65 F.3d at 203. WRC shall pay the plaintiff, and only to the plaintiff personally and individually, $4,901,801.50 plus 11% interest on the balance due and owing from time to time, compounded monthly from February 16, 1989 until the plaintiff has been paid in full for all principle and interest. WRC will receive credit against the amount due and owing for payments previously made, as of the date each payment was actually received or credited either by plaintiff or the Internal Revenue Service, as the parties have agreed, and for any amounts the parties agree have been paid since October 15, 1996. WRC will pay interest at the rate of 11% on the balance due and owing, compounded monthly from February 16, 1989. Payment will be applied, as of the date received, first to interest due and owing on the date of payment, then to principle. All amounts, interest and principle due to the plaintiff from WRC shall be paid at least quarterly, beginning on November 1, 1997, and extending for a period of three years from the date of judgment in this action. Each quarterly payment shall be not less than one-twelfth (1/12) of the total of principle and interest due on the date of entry of judgment in this action. Defendant shall also continue to pay plaintiff $10,000 per month for her sustenance, in accord with this court’s previous orders, until plaintiff is" }, { "docid": "21411442", "title": "", "text": "made to the plaintiff as of the date plaintiff received them. Of course, plaintiff is entitled to interest from the date of the defendants’ election to purchase the shares to the date payment was actually received, at the rate of 11%, compounded monthly. These include payments WRC made to the plaintiff and the Internal Revenue Service pursuant to this court’s order, and other payments made by agreement of the parties. It is agreed that these payments total $1,697,217.38, as of October 15, 1996. All of these amounts, and any amounts which it is agreed were paid after October 15, 1996, are to be credited first against the interest due as of the date of each payment, and any amount in excess of interest then due shall be credited to the principal amount then due, in accord with the generally accepted “United States Rule.” See Darr v. Muratore, 8 F.3d 854, 861 (1st Cir.1993) (citing numerous cases in accord with the “United States Rule” and holding “we are not inclined to conjure a different rule under Rhode Island law.”). All additional payments will also be applied first to the interest then due, the balance, if any, to be applied to the principle amount then due. WRC claims, and the plaintiff disputes, that the corporation is entitled to “interest abatements” or “payment credits” for other amounts. WRC claims that no interest should accrue on any amount it offered in payment of its debt, as of the date such payment was tendered, whether or not the funds were paid to the plaintiff or for her benefit as a result of WRC’s offer. See Illini FS, Inc. v. Myerscough, 137 Ill.App.3d 861, 92 Ill.Dec. 440, 445, 484 N.E.2d 1385, 1390 (1985) (partial payment on a debt prevents accrual of interest on the portion paid). WRC would term such release from interest liability an “interest abatement.” For example, WRC claims that as of the date it tendered $1 million to the plaintiffs former attorneys in this matter, December 23, 1992, interest should no longer have accrued on that amount, because the plaintiff was under a" }, { "docid": "6654752", "title": "", "text": "to § 1961 exists when the parties contractually agree to waive its application. See Citicorp Real Estate, Inc. v. Smith, 155 F.3d 1097, 1107-08 (9th Cir. 1998). In Citicorp, the promissory notes at issue included an express, mutually-agreed upon interest rate in the case of default. Id. at 1108. The parties also stipulated to a certain arbitration award provided that interest would accrue at the rate specified in the promissory note after the judgment until collection. Id. Durga Ma initially argues that it is entitled to the 10% California rate because the California choice-of-law clause in the parties’ underlying contract constitutes a waiver of 28 U.S.C. § 1961 and an express agreement to apply California’s rate to post-judgment interest. Unlike the specific agreement involved in Citicorp, the choice-of-law clause at issue here makes no reference to interest rates; it evinces no agreement between the parties on this specific issue. Because Fidelity and Durga Ma did not contract to waive § 1961, that provision governs the post-judgment interest awarded in this case. Durga Ma next contends that the language of the arbitrators’ award indicates that they intended to award postjudgment interest at the California rate of 10%. Durga Ma asserts that because the arbitrators made specific mention of interest in their final award, that interest is part of the judgment, not incidental; the federal rate applies only to interest that is an incident of a federal judgment. Durga Ma further reasoned that the arbitrators knew that California law governed the parties underlying contract. Therefore, Durga Ma claims that the arbitrators’ statement that the award “shall bear interest at the statutory rate,” referred to the California rate. Contrary to Durga Ma’s assertion, the award contains no language suggesting that posi-judgment interest is part of the award. The award refers neither to post-judgment interest nor any particular rate. It also makes no mention of California law. The arbitrators’ statement regarding interest likely referred to prejudgment interest. Pre-judgment interest is governed by state law, Northrop, 842 F.2d at 1155-56, and state law provides that pre-judgment interest is available from the date the arbitration panel" }, { "docid": "7173662", "title": "", "text": "Magistrate Judge Boudewyns, but in October it was transferred to Judge Boyle who again assigned it to Magistrate Judge Boudewyns for settlement purposes. In March 1994, WRC sought permission in the interpleader action to put money into the registry. Over the next two months it made deposits of $95,000 and $1 million into the account. On June 2, 1994, the magistrate judge authorized the deposits that had been made. These deposits did not include the required $10,000 monthly payments, but were additional amounts paid by WRC, apparently in another attempt to stem the accrual of interest in the stock buyout case. In September 1994, the special master produced his final report, valuing WRC at $14,-705,404, a third of which (Bogosian’s share) would be $4,901,801. Both parties objected, but in April 1995, Judge Boyle affirmed the report, subject to further hearings before him on two issues: (1) WRC’s claim that the value of the corporation should be discounted by what WRC referred to as discounted tax liabilities — the amount that they would have to pay in capital gains taxes if they sold (or made a taxable transfer of) properties that had been held for a long time and had increased in value; and (2) the proper rate to be fixed for prejudgment interest owed to Bogosian. Judge Boyle did say, however, that the rate applied would be compound, rather than simple, interest. The Bank Claims. At about this point in the chronology, another set of federal proceedings in the same district court intersected with the stock buyout case. These proceedings had their origin in two district court judgments obtained against Bogosian by Rhode Island Hospital Trust National Bank (“the Bank”) —one from February 18, 1994, for $281,748 plus interest and costs, and one from October 28, 1994, for $1,107,295 plus interest and costs. These judgments arose from a loan the Bank made to a corporation owned by Bogosian which was guaranteed by Bogosian and another loan made to Bogosian individually. When the loans were not paid back, the Bank sued Bogosian and obtained judgments. The cases (“the Bank Case”) were" } ]

[ { "docid": "13117563", "title": "", "text": "its decision to deny LTD benefits. McLeod then filed a complaint in the District Court alleging claims of interference with protected rights (Count I); failure to award benefits due under the terms of the Plan (Count II); breach of fiduciary duty (Count III); and breach of contract (Count IV). McLeod named Hartford, Group Long Term Disability Benefits for Employees of Valley Media, Inc., and Valley Media, Inc., as defendants. McLeod voluntarily dismissed Counts I, III and IV of her complaint as against Hartford pursuant to Fed.R.Civ.P. 41. The matter was stayed as against Hartford’s co-defendants due to the bankruptcy of Valley Media, Inc. Hartford and McLeod filed cross-motions for summary judgment. The Court granted Hartford’s motion on February 27, 2003. McLeod filed a timely Notice of Appeal on March 14, 2003. The Court had jurisdiction pursuant to 28 U.S.C. § 1331 because the complaint sought benefits under 29 U.S.C. § 1132(a)(1)(B). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. II. Standard of Review Our review of the grant of summary judgment is plenary. See Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 224 (3d Cir.2000). We apply the same standard of review to Hartford’s decision to deny LTD benefits to McLeod that the District Court should have applied. See Smathers v. Multi-Tool Inc./Multi-Plastics, Inc. Employee Health & Welfare Plan, 298 F.3d 191, 194 (3d Cir.2002). McLeod’s claim arises under ERISA, where “a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit Plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan,” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), in which case it must be reviewed under the arbitrary and capricious standard. See Smathers, 298 F.3d at 194. Under the arbitrary and capricious standard, the Court may overturn Hartford’s decision “only if it is ‘without reason, unsupported by substantial evidence or erroneous as a matter of law.’ ” Abnathya v. Hoffmann-La Roche, Inc.," } ]

[ { "docid": "10633379", "title": "", "text": "rather than a check for $50, to his detriment. The question before us, however, is a conjunctive one; High’s reliance must also be reasonable. In answering this question, the Sixth Circuit in Sprague v. GMC, 133 F.3d 388, 404 (6th Cir.1998), reasoned that a “party’s reliance can seldom, if ever, be reasonable or justifiable if it is inconsistent with the clear and unambiguous terms of plan documents available to or furnished to the party.” The court held that allowing “estop-pel to override the clear terms of plan documents would be to enforce something other than the plan documents themselves. That would not be consistent with ERISA.” Id. Additionally, in In re Uni-sys Corp. Retiree Medical Benefit “ERISA” Litigation, 58 F.3d 896, 902 (3d Cir.1995), the Third Circuit emphasized that a basic principle of ERISA is that a plan cannot be modified or superceded by extrinsic evidence. In that case, a company engaged in a “systematic campaign of confusion” that led employees to believe that their benefits continued for life. Id. at 907 n. 20. The court agreed that many of these employees may have relied on these bald assertions to their detriment; however, because the actual plan included “unambiguous reservation of rights clauses,” the court determined that the employees’ estoppel claims were precluded because relying to their detriment that they would receive lifetime benefits, which conflicted with the plain language of the plan, was unreasonable. The court ultimately held: While our decisions have not required an express finding of plan ambiguity as an element for establishing an estoppel claim, we have required that reliance be reasonable. Because our decisions require that any detrimental reliance on plan language also be “reasonable,” our finding that the [terms of the Plan] are unambiguous undercuts the reasonableness of any detrimental reliance by the retirees. Accordingly, we hold that the district court did not err in concluding, on summary judgment, that the retirees’ estoppel claim failed as a matter of law. Id. at 908. Therefore, because we have determined that the language of the E-Systems Plan granting complete discretion to the plan administrator to offset" }, { "docid": "23633439", "title": "", "text": "regulations is merely a grant of administrative powers. The Third Circuit has held that even a broad grant of administrative powers is insufficient to trigger application of the arbitrary and capricious standard. Although ¶ 8.3 permits the Administrator to promulgate rules to “interpret and administer” the Plan, we do not read this as a grant of authority to construe ambiguous terms in the Plan. The Plan is otherwise silent as to the Administrator’s authority to construe terms. When a plan is silent or ambiguous as to an Administrator’s discretionary authority, we will apply the de novo standard of review. As the Fifth Circuit has said: Since Bruch, we have had several occasions to consider ERISA instruments that granted precise discretionary authority. Significantly, the express language in those instruments is unambiguous in its design to grant discretion regarding entitlements to the fiduciary or administrator. The Plan before us does not contain express language “unambiguous in its design” to give the Administrator discretionary authority to determine eligibility benefits or to construe the terms of the Plan. Accordingly, the district court erred in applying the arbitrary and capricious standard of review to the Administrator’s determination. Marriott argues that, even applying de novo review to the Administrator’s determination, summary judgment is appropriate. We disagree. In this circuit, a district court conducting a de novo review of an Administrator’s benefits determination is not limited to the facts available to the Administrator at the time of the determination. The district court in this ease had before it Kirwan’s medical records indicating that he was having problems with his medication in mid-1988, Kirwan’s affidavit attesting that he was disabled on the date of his termination, Dr. Bencze’s affidavit attesting that Kirwan may have been totally disabled on that date, and the Social Security Administration’s determination that Kirwan was totally disabled on that date. We find that this evidence presents a genuine issue of material fact as to whether Kirwan was totally disabled on the date of his termination. Accordingly, the district court erred in granting summary judgment in favor of Marriott. CONCLUSION For reasons stated above, the" }, { "docid": "12462369", "title": "", "text": "the Court applies a \"deferential standard of review.\" Id. at 111, 109 S.Ct. 948. The United States Court of Appeals for the Third Circuit has described this deferential review as an arbitrary and capricious standard, under which the District Court may \"overturn a decision of the plan administrator only if it is without reason, unsupported by substantial evidence or erroneous as a matter of law.\" Doroshow v. Hartford Life & Acc. Ins. Co., 574 F.3d 230, 234 (3d Cir.2009) (citing Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 45 (3d Cir.1993)). Accordingly, the Third Circuit has recently noted that “[a]n administrator’s interpretation is not arbitrary if it is reasonably consistent with unambiguous plan language”; however, “[w]hen a plan’s language is ambiguous and the administrator is authorized to interpret it, courts must defer to this interpretation unless it is arbitrary or capricious.” Fleisher v. Standard Ins. Co., 679 F.3d 116, 121 (3d Cir. 2012) (internal citations omitted). “The determination of whether a term is ambiguous is a question of law. A term is ambiguous if it is subject to reasonable alternative interpretations.” Id. (citation omitted). The Supreme Court of the United States has noted that when conducting the \"deferential review\" of a benefits denial made by an administrator or fiduciary invested with discretionary authority, the reviewing court must consider whether the plan administrator operated under a conflict of interest. Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 108, 128 S.Ct. 2343, 2346, 171 L.Ed.2d 299 (2008). In this context, a conflict of interest exists when \"a plan administrator both evaluates claims for benefits and pays benefits claims.\" Id. at 112, 128 S.Ct. 2343. Accordingly, the Glenn Court directed reviewing courts to consider this evaluator/payor conflict of interest as one of several different considerations in determining whether there was an abuse of discretion. Id. at 115-17, 128 S.Ct. 2343. The Court noted that \"the significance of this factor will depend upon the circumstances of the particular case.\" Id. at 108, 128 S.Ct. 2343. b. Summary Judgment Standard Presently before the Court are the parties’ Cross-Motions for Summary Judg ment pursuant to" }, { "docid": "20163496", "title": "", "text": "“We make that determination based on the language of the plan.” Id. Where the plan administrator’s decision relies on an interpretation of the language in the plan, as it does here, we begin by considering whether the provision is ambiguous; if the plan documents, examined as a whole, are “unambiguous, we construe them as a matter of law.” Id. (internal quotations omitted). “ ‘Ambiguify exists where a plan provision is reasonably susceptible to more than one meaning, or where there is uncertainty as to the meaning of the term.’ ” Miller v. Monumental Life Ins. Co., 502 F.3d 1245, 1250 (10th Cir.2007) (quoting Admin. Comm. of Wal-Mart Assocs. Health & Welfare Plan v. Willard, 393 F.3d 1119, 1123 (10th Cir.2004)). In order to determine whether the plan is ambiguous, “we ‘consider the common and ordinary meaning as a reasonable person in the position of the plan participant ... would have understood the words to mean.’ ” Weber, 541 F.3d at 1011 (quoting Miller, F.3d at 1250) (further quotation, emphasis omitted). If a plan provision is ambiguous, under the arbitrary and capricious standard, then we “take a hard look and determine” whether the plan administrator’s interpretation of the ambiguous language was “arbitrary in light of [the administrator’s] conflict of interest.” Id. (internal quotation omitted). However, “if the plan provision is unambiguous, and the plan administrator’s interpretation differs from the unambiguous meaning, then the plan administrator’s interpretation is unreasonable, and the decision to deny benefits based on that interpretation is arbitrary and capricious.” Flinders, 491 F.3d at 1193. 1. The Plan is Ambiguous The ExxonMobil Pension Plan provides that generally “a person acquires a matured right to a Pension Benefit” at the time of termination if “the person was a covered employee” and the person has completed sufficient years of service. (Aplt.App.84.). The Common Provisions applicable to the Pension Plan define a “covered employee,” in general, as a “qualifying employee ... of a participating employer.” (Id. at 302 (emphasis omitted.)) The definitions of “qualifying employee” and “participating employer” incorporate further definitions: a “qualifying employee” is defined, in general, as “any employee of" }, { "docid": "6559605", "title": "", "text": "return to his former job. ERISA plans commonly grant authority to plan administrators to interpret the plan’s terms. Goldstein v. Johnson & Johnson, 251 F.3d 433, 441 (3d Cir.2001). Even so, plan administrators do not have unfettered discretion in undertaking that task. If the terms are unambiguous, then any actions taken by the plan administrator inconsistent with the terms of the document are arbitrary. But actions reasonably consistent with unambiguous plan language are not arbitrary. If the reviewing court determines the terms of a plan document are ambiguous, it must take the additional step and analyze whether the plan administrator’s interpretation of the document is reasonable. Bill Gray Enters., Inc. Emp. Health & Welfare Plan v. Gourley, 248 F.3d 206, 218 (3d Cir.2001); see also McElroy v. Smith-Kline Beecham Health & Welfare Benefits Trust Plan for U.S. Emps., 340 F.3d 139, 143 (3d Cir.2003) (holding that plan administrator was authorized to interpret plan language that was “equivocal”). Regardless of CIGNA’s characterization of what it did here, it does not appear that it interpreted ambiguous Plan terms. Indeed, the Plan’s requirements for determining phase two disability appear to be clear and thus unsuited to any further interpretation. The issue, then, is whether CIGNA acted “reasonably consistent with” those requirements. Gourley, 248 F.3d at 218. In our view, it did. The Plan required CIGNA to determine whether Funk was capable of working in any job that would pay him 60% of his former pay. CIGNA literally complied with that requirement when it determined that Funk could, without restrictions, “perform[ ] his regular occupation” (id. at 186), i.e., his former job at Lucent. It went without saying that his former job could be understood to pay 100% of his former wage. Moreover, because CIGNA’s determination that Funk was not disabled did not turn on the existence of an alternative 60% job, it was unnecessary to discuss in its decision any alternative 60% jobs. CIG-NA’s decision was therefore reasonably consistent with the Plan, and the District Court’s contrary holding was in error. 2. Whether Substantial Evidence Supported CIGNA’s Decision In the alternative, the District" }, { "docid": "8301337", "title": "", "text": "by [Aetna] to Mr. Carden when the physical basis for the disability benefits being paid by [Aetna] [ie., vertigo] is different than the physical basis which gave rise to the worker’s compensation award [ie., asbestosis]. The district court found that Aetna’s interpretation of the plan was reasonable and was supported by substantial evidence, resulting from a deliberate, principled reasoning process. Accordingly, it entered a judgment on November 5, 2007, declaring, “Aetna is entitled to offset Plaintiffs long-term disability benefits by the workers’ compensation benefits which he received based on his asbestosis.” From that judgment, Carden appeals. II The plan in this case provides long-term disability benefits to employees, and, because Carden suffers from vertigo, he has been receiving disability benefits since 1997. There is no dispute about whether the benefits are payable and their amount. Rather, the issue here is whether Aetna, functioning under a conflict of interest, acted reasonably in construing the plan’s language to provide for an offset against those benefits in the amount that Carden received in 1999 as a lump-sum payment for his permanent impairment caused by asbestosis. Carden contends that the plan, in addressing “Lump Sum Payments From Workers’ Compensation,” provides that such a lump-sum payment may be set off against disability benefits only when the lump-sum payment is for the same “disability” for which long-term disability benefits are paid. While Carden claims that the plan provisions are unambiguous in this regard, he argues that if the plan language is ambiguous, it must be interpreted “in favor of [him] and against the insurer” because of Aetna’s conflict of interest, citing to a line of cases represented by Carolina Care Plan, Inc. v. McKenzie, 467 F.3d 383 (4th Cir.2006). In Carolina Care Plan, we said, “When an ERISA plan vests discretion in an administrator who also insures the plan, reasonable exercise of that discretion requires that the administrator construe plan ambiguities against the party who drafted the plan.” 467 F.3d at 389 (emphasis added). Since we decided Carolina Care Plan and the other cases on which it relies, the Supreme Court decided Metropolitan Life Insurance Co." }, { "docid": "16595327", "title": "", "text": "The plan administrator interpreted the phrase “similar government benefits” to include McElroy’s RRB benefits. We must decide whether the plan administrator’s interpretation of the Plan is reasonable. See Abnathya v. Hoffmann-LaRoche, Inc., 2 F.3d 40, 45 (3d Cir.1993) (stating that a decision of a plan administrator may only be overturned if it is “without reason, unsupported by the evidence or erroneous as a matter of law”). Because McElroy’s RRB benefits, like state disability benefits, are disability benefits paid by a “government” agency, we conclude that the plan administrator’s reading is not “without reason, unsupported by the evidence or erroneous as a matter of law.” Id. McElroy argues that the plan administrator’s reading of the Plan’s offset provision conflicts with In re: Unisys Corp. Long Term Disability Plan ERISA Litigation, where we held that a plan must specify which benefits are to be considered in an offset provision. 97 F.3d 710 (3d Cir.1996). In Unisys, the defendant drafted a new long term disability plan which provided that benefits received by employees could be adjusted if the employees received pension benefits from other sources. After the original publication of the plan, the plan was revised to state that benefits were subject to reduction by amounts of any dependents’ Social Security awards. The plaintiffs, employee participants of the plan, argued that only benefits they themselves received should be deducted from plan benefits. Defendants argued that this new language expressed a continuation, rather than a change of an existing provision. The district court granted summary judgment in favor of defendants. On appeal, we examined the language of the plan and reversed the district court. We concluded, “There is no evidence in the record which supports Unisys’ argument that the words ‘benefits you receive’ are susceptible of meaning ‘benefits you and your dependents receive.’ ” Id. at 715. Significantly,- however, we held that the language from the provision at issue that did not refer to a plan participant’s dependents was “unambiguous.” Id. at 717. Because the language was “unambiguous,” we were as able as the plan administrator to determine which benefits were specified by the" }, { "docid": "22110137", "title": "", "text": "break in service occurred before he fulfilled the requirements for obtaining a Total Disability Retirement Pension under ¶3.4 — that is, before he became disabled — Nowak, pursuant to ¶2.5, lost all credited service accumulated before 1973. Accordingly, he was unable to accrue the fifteen years of credited service needed to obtain a disability pension under ¶3.4. Nowak argues that the break-in-service provision of ¶ 2.5 is ambiguous insofar as the term “other requirements” in ¶ 2.5 does not specifically incorporate ¶3.4’8 requirement that he be “Totally Disabled.” Contrary to Nowak’s contention, when read in conjunction with the rest of the Plan, the phrase “other requirements for retirement” clearly includes the criteria for receiving any of the retirement pensions defined in Section 3, including the Total Disability Retirement Pension. Because the criteria for qualification varies depending on the individual retirement pension sought by the applicant, the drafters reasonably employed the term “other requirements” in order to reach all of the different requirements of the various retirement pensions. Our view is further supported by the fact that Nowak offers no viable alternative interpretation of the phrase. Because we find the terms of the 1973 Plan to be unambiguous, we need not reach No-wak’s arguments urging us to apply contra proferentwm and other rules of construction to resolve the alleged ambiguity against the defendants. Based on the clear, unambiguous terms of the 1973 Plan, Nowak is ineligible for the disability retirement pension, and the district court properly granted summary judgment in favor of the defendants. III. Conclusion To summarize: 1. Because Nowak’s jurisdictional allegations were neither immaterial nor insubstantial, we construe the district court’s dismissal of his claim for pension benefits under ERISA as a dismissal on the merits pursuant to Rule 12(b)(6). 2. The district court acted within its discretion, pursuant to 28 U.S.C. § 1367(c)(3), in exercising supplemental jurisdiction over No-wak’s related state law claims. 3. Because the Plan clearly and unambiguously rendered Nowak ineligible for a disability pension, summary judgment was properly granted in favor of the defendants. Accordingly, the judgment of the district court is affirmed. . Under" }, { "docid": "6559604", "title": "", "text": "did not give proper consideration to the evidence and was infected by a conflict of interest, was not supported by substantial evidence. We disagree with the former conclusion and cannot accept the District Court’s analysis as to the latter. 1. Whether CIGNA Complied With the Plan The District Court concluded that, because CIGNA’s decision did not explicitly address salary or provide examples of suitable alternative 60% jobs, CIG-NA failed to comply with the Plan provision requiring it to determine whether Funk was “incapable of performing the requirements of any job for any employer ... for which the individual is qualified or may reasonably become qualified ..., other than a job that pays less than 60 percent [of his former pay].” (App. 2 at 167.) CIGNA argues that it was not required to explicitly discuss salary and alternative 60% jobs because it had authority under the Plan to reasonably interpret Plan provisions, and it was reasonable to interpret the Plan as not requiring an analysis of alternative 60% jobs when it had determined that Funk could return to his former job. ERISA plans commonly grant authority to plan administrators to interpret the plan’s terms. Goldstein v. Johnson & Johnson, 251 F.3d 433, 441 (3d Cir.2001). Even so, plan administrators do not have unfettered discretion in undertaking that task. If the terms are unambiguous, then any actions taken by the plan administrator inconsistent with the terms of the document are arbitrary. But actions reasonably consistent with unambiguous plan language are not arbitrary. If the reviewing court determines the terms of a plan document are ambiguous, it must take the additional step and analyze whether the plan administrator’s interpretation of the document is reasonable. Bill Gray Enters., Inc. Emp. Health & Welfare Plan v. Gourley, 248 F.3d 206, 218 (3d Cir.2001); see also McElroy v. Smith-Kline Beecham Health & Welfare Benefits Trust Plan for U.S. Emps., 340 F.3d 139, 143 (3d Cir.2003) (holding that plan administrator was authorized to interpret plan language that was “equivocal”). Regardless of CIGNA’s characterization of what it did here, it does not appear that it interpreted ambiguous Plan" }, { "docid": "16595328", "title": "", "text": "employees received pension benefits from other sources. After the original publication of the plan, the plan was revised to state that benefits were subject to reduction by amounts of any dependents’ Social Security awards. The plaintiffs, employee participants of the plan, argued that only benefits they themselves received should be deducted from plan benefits. Defendants argued that this new language expressed a continuation, rather than a change of an existing provision. The district court granted summary judgment in favor of defendants. On appeal, we examined the language of the plan and reversed the district court. We concluded, “There is no evidence in the record which supports Unisys’ argument that the words ‘benefits you receive’ are susceptible of meaning ‘benefits you and your dependents receive.’ ” Id. at 715. Significantly,- however, we held that the language from the provision at issue that did not refer to a plan participant’s dependents was “unambiguous.” Id. at 717. Because the language was “unambiguous,” we were as able as the plan administrator to determine which benefits were specified by the plan. Unisys does not control in this case, because, unlike Unisys, here the language of the SmithKline Plan is ambiguous. Because the language of the SmithKline Plan is equivocal, the plan administrator was authorized to interpret it, and we must defer to this interpretation unless it is arbitrary or capricious. We conclude that the plan administrator’s interpretation of the Plan is neither and, hence, reasonable. IV. McElroy also asserts that because the plan administrator did not review his claim file in making his determination, he shirked his duties, as enumerated in 29 U.S.C. § 1104(a)(1)(D) and 29 C.F.R. § 2560.503-l(h)(2)(iv). An examination of these ERISA provisions, however, shows that the plan administrator did not fail to meet his fiduciary obligations. Section 1104(a)(1)(D) states that “a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and ... in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this title and title IV.” 29 U.S.C." }, { "docid": "22110138", "title": "", "text": "that Nowak offers no viable alternative interpretation of the phrase. Because we find the terms of the 1973 Plan to be unambiguous, we need not reach No-wak’s arguments urging us to apply contra proferentwm and other rules of construction to resolve the alleged ambiguity against the defendants. Based on the clear, unambiguous terms of the 1973 Plan, Nowak is ineligible for the disability retirement pension, and the district court properly granted summary judgment in favor of the defendants. III. Conclusion To summarize: 1. Because Nowak’s jurisdictional allegations were neither immaterial nor insubstantial, we construe the district court’s dismissal of his claim for pension benefits under ERISA as a dismissal on the merits pursuant to Rule 12(b)(6). 2. The district court acted within its discretion, pursuant to 28 U.S.C. § 1367(c)(3), in exercising supplemental jurisdiction over No-wak’s related state law claims. 3. Because the Plan clearly and unambiguously rendered Nowak ineligible for a disability pension, summary judgment was properly granted in favor of the defendants. Accordingly, the judgment of the district court is affirmed. . Under ¶ 1.19 of the Plan, the Administrator may accept a determination of eligibility for Social Security disability benefits as a determination of a permanent disability for purposes of the Plan, . 28 U.S.C. § 1447(c) provides in relevant part: “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” . Credited Service is defined in ¶ 2.1 of the Plan: CREDITED SERVICE shall mean a total of an Employee's Credited Past Service and Credited Future Service as determined in accordance with this Section 2. . \"Break in service” is defined in ¶ 2.4 of the Plan: BREAK IN SERVICE shall mean a break in the continuity of an Employee's employment after June 1, 1966, and shall be deemed to have occurred if such employee fails to accrue at least 600 hours of Credited Future Service within any period of two consecutive years. .Paragraph 2.5 of the 1973 Plan states that \"[i]f an Employee suffers a Break in Service before he has completed the" }, { "docid": "23072210", "title": "", "text": "his determination regarding the distribution of payments, the plan administrator exercised his discretionary authority to construe the terms of the Plan. Section 8.1(h) of the Plan provides, “If the [plan administer] receives a QDRO with respect to a Member’s divorce from his Spouse, it will comply with such Order and reduce the benefits otherwise payable to or on behalf of such Member under this Plan or the Actuarial Equivalent of any benefits payable to his Spouse under this Plan pursuant to such QDRO.” Additionally, the Plan Procedures for Domestic Relations Orders provides that any amount that would be payable to an alternate payee under a QDRO will be separately accounted for under the Plan and will remain segregated while the plan participant or alternate payee appeals the administrator’s QDRO determination. At the end of this appeal period, “the segregated amounts, adjusted for investment results, will be paid to the plan participant or the alternate payee (or credited to the account of the plan participant or alternate payee) in accordance with the determination of the [plan administrator].” Thus, the district court erred in refusing to give deference to the administrator’s holding that Talcott’s pension is payable over her lifetime, and instead holding that payments to Talcott will terminate when Hul-lett’s pension payments terminate. The court was required to uphold the administrator’s determination as to QDRO payments unless it was arbitrary and capricious. It was not. In summary, the district court erred by granting in part Hullett’s motion for partial summary judgment. Talcott has presented reasonable alternative interpretations of the contractual language regarding the distribution of Hullett’s pension and the provision requiring payment upon Hullett’s retirement if Talcott remains unmarried. Thus, these provisions are ambiguous and are appropriate for a factfinder’s resolution upon remand. Finally, although the district court properly reviewed the plan administrator’s interpretation of the Agreement on a de novo basis, it erred in refusing to give deference to the plan administrator’s determination regarding the payment of benefits under the QDRO. VI. Accordingly, the district court’s grant of partial summary judgment in favor of Hullett will be reversed and the" }, { "docid": "22573550", "title": "", "text": "binding obligation on the Company. The lower court then ruled that although the language in the plan master document was unambiguous, when viewed in light of the conflicting SPD, an ambiguity was created as to whether Bergt was eligible to participate in the retirement plan. Since the court found an ambiguity, it considered extrinsic evidence, concluding that Bergt was not eligible to participate in the retirement plan because the understanding of the parties was that an employee could not be a participant in both the retirement plan and a company-sponsored profit-sharing plan. Although the court reviewed the Committee’s decision for an abuse of discretion, it noted that it would have granted summary judgment even if it had applied a de novo review. II. Discussion A. Standard of Review We review a district court’s grant or denial of a motion for summary judgment de novo. Lang v. Long-Term, Disability Plan of Sponsor Applied Remote Tech., 125 F.3d 794, 797 (9th Cir.1997). We also determine which standard of review to apply to a committee’s decision de novo. Snow v. Standard Ins. Co., 87 F.3d 327, 331 (9th Cir.1996). In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court said that when an ERISA plan grants discretionary authority to the plan administrator to determine plan eligibility, the court will ordinarily review a committee’s decision to deny benefits for an abuse of discretion. In Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999), the Ninth Circuit held that the plan documents must grant this discretionary authority unambiguously; if the plan fails to do this, the district court must review a committee’s decision de novo. In this case, the retirement plan language unambiguously gives the Committee broad discretion to determine eligibility benefits. It grants the administrative committee the “power” and “duty” to “interpret the plan and to resolve ambiguities, inconsistencies and omissions” and to “decide on questions concerning the plan and the eligibility of any Employee .... ” See Sandy v. Reliance Standard Life Ins. Co., 222 F.3d 1202, 1207 (9th" }, { "docid": "11709819", "title": "", "text": "“some offset” for the benefits he receives. As is clear from Wells, once we have determined that the plan invests the administrator with the requisite discretionary authority, “this court may not overrule [the administrator’s] interpretation of the Plan language unless the administrator’s reading may be said to be arbitrary and capricious. That standard of review asks whether [such] interpretation of the Plan language is ‘reasonable.’ ” Wells, 950 F.2d at 1249 (quoting Firestone, 489 U.S. at 111, 109 S.Ct. at 954). Applying this standard, we determine that while the case is close, the interpretation offered by Eaton is reasonable. Indeed, the case is close precisely because both parties have submitted rational readings of this ambiguous text, which is clear only in indicating that a setoff of some sort is permitted. As we cannot say that Eaton’s pension plan committee acted capriciously in deciding that the phrase “at the expense of” refers only to “premiums” rather than “benefits,” nor in reading the phrase “provided by” broadly, we must allow its interpretation to stand. We note that this same conclusion was reached by the district court in Horace v. Auto Specialties Mfg. Co., 663 F.Supp. 54 (W.D.Mich.1987), a pre-Firestone case involving the Michigan Silicosis Fund and an identical integration provision. The Horace court held that despite the employer’s reimbursement for the benefits it paid to plaintiff, it was not unreasonable or capri cious for the plan administrator to offset plaintiff’s pension payments by the entirety of those benefits on the basis of the employer’s annual premiums. Id. at 56. We also note that similarly ambiguous language, calling for deductions (from disability pension benefits) of amounts “for which the Company ... is liable pursuant to Worker’s Compensation,” was elsewhere held to have been reasonably read by the plan administrator to allow deductions for the full amount of the awards even though the employer was not strictly “liable” for the payments, but merely contributed to the fund from which the payments were made. Gust v. Coleman Co., 740 F.Supp. 1544, 1552 (D.Kan.1990) (emphasis added), affd, 936 F.2d 583 (10th Cir.1991). In reaching this decision," }, { "docid": "22837314", "title": "", "text": "with unambiguous plan language.” Bill Gray Enters. v. Gourley, 248 F.3d 206, 218 (3d Cir.2001). When a plan’s language is ambiguous and the administrator is authorized to interpret it, courts “must defer to this interpretation unless it is arbitrary or capricious.” McElroy v. SmithKline Beecham Health & Welfare Benefits Trust Plan, 340 F.3d 139, 143 (3d Cir.2003). “The determination of whether a term is ambiguous is a question of law. A term is ambiguous if it is subject to reasonable alternative interpretations.” Taylor v. Cont'l Group Change in Control Severance Pay Plan, 933 F.2d 1227, 1233 (3d Cir.1991) (citations omitted). Courts defer to an administrator’s findings of facts when they are supported by “substantial evidence,” which we have “defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Soubik v. Dir., Office of Workers’ Comp. Programs, 366 F.3d 226, 233 (3d Cir.2004). When reviewing an administrator’s factual determinations, we consider only the “evidence that was before the administrator when he made the decision being reviewed.” Mitchell, 113 F.3d at 440. The Standard Policy vests the administrator with: “[F]ull and exclusive authority to control and manage the Group Policy, to administer claims, and to interpret the Group Policy and resolve any questions arising in the administration, interpretation, and application of the Group Policy.” (A.79.) This language clearly triggers application of the deferential abuse of discretion standard of review. See Abnathya, 2 F.3d at 45, abrogated on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 112, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). In the District Court, Fleisher argued that Standard’s decision is not entitled to arbitrary and capricious review, asserting that this deferential standard only applies to an administrator’s interpretation of documents that are part of the plan itself. Because Standard’s deduction decision was based in part on its finding that the North American Policy — a non-plan document — • constituted “group insurance coverage,” Fleisher reasoned that de novo review is appropriate. We rejected a similar argument in Mitchell, in which a plan administrator denied Mitchell’s claim for benefits" }, { "docid": "10633380", "title": "", "text": "court agreed that many of these employees may have relied on these bald assertions to their detriment; however, because the actual plan included “unambiguous reservation of rights clauses,” the court determined that the employees’ estoppel claims were precluded because relying to their detriment that they would receive lifetime benefits, which conflicted with the plain language of the plan, was unreasonable. The court ultimately held: While our decisions have not required an express finding of plan ambiguity as an element for establishing an estoppel claim, we have required that reliance be reasonable. Because our decisions require that any detrimental reliance on plan language also be “reasonable,” our finding that the [terms of the Plan] are unambiguous undercuts the reasonableness of any detrimental reliance by the retirees. Accordingly, we hold that the district court did not err in concluding, on summary judgment, that the retirees’ estoppel claim failed as a matter of law. Id. at 908. Therefore, because we have determined that the language of the E-Systems Plan granting complete discretion to the plan administrator to offset group disability plan and other income benefits is not ambiguous, we hold that the doctrine of ERISA-estoppel does not apply in this case. High cannot reasonably rely on the actual receipt of disability benefits when the policy itself details that such reliance is unreasonable. In High’s final argument, he asserts that the doctrine of waiver applies; he argues that when E-Systems paid the full amount of his benefits without offsetting VA benefits for a six year period, it waived the right to subsequently take those benefits away from him. E-Systems urges that this theory is preempted by ERISA. Even if the doctrine of waiver were to apply to any effort by E-Systems to recover the overpayments, the case law, including that relied upon by High, does not support an application of it here. Our caselaw defines waiver as “a voluntary or intentional relinquishment of a known right.” Pitts v. Am. Sec. Life Ins. Co., 931 F.2d 351 (5th Cir.1991); Rhorer, 181 F.3d at 639 (5th Cir.1999). In this case, however, once MetLife discovered the overpayments," }, { "docid": "23072211", "title": "", "text": "administrator].” Thus, the district court erred in refusing to give deference to the administrator’s holding that Talcott’s pension is payable over her lifetime, and instead holding that payments to Talcott will terminate when Hul-lett’s pension payments terminate. The court was required to uphold the administrator’s determination as to QDRO payments unless it was arbitrary and capricious. It was not. In summary, the district court erred by granting in part Hullett’s motion for partial summary judgment. Talcott has presented reasonable alternative interpretations of the contractual language regarding the distribution of Hullett’s pension and the provision requiring payment upon Hullett’s retirement if Talcott remains unmarried. Thus, these provisions are ambiguous and are appropriate for a factfinder’s resolution upon remand. Finally, although the district court properly reviewed the plan administrator’s interpretation of the Agreement on a de novo basis, it erred in refusing to give deference to the plan administrator’s determination regarding the payment of benefits under the QDRO. VI. Accordingly, the district court’s grant of partial summary judgment in favor of Hullett will be reversed and the case remanded for proceedings consistent with this opinion. . The district court exercised jurisdiction over this case pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e)(1). This court has jurisdiction over this appeal from a final judgment pursuant to 28 U.S.C. § 1291. . This amounted to a pension under the Pension Plan of $7,258.37 per month commencing January 1, 2001, plus a social security supplement under the Plan of $554.14 per month from January 1, 2001 through May 31, 2003, plus a supplemental pension of $3,220.30 per month commencing January 1, 2001. . A QDRO is defined in 29 U.S.C. § 1056(d)(3)(B)(i). Prior to 1984, ERISA’s provisions failed to clearly delineate the interest of a non-employee spouse in pension benefits of the employee spouse. Under the 1984 amendments to ERISA, if a domestic relations order provides for distribution of part or all of a participant’s benefits under a qualified pension plan to an alternate payee and meets the requirements set forth in the statute, then the creation, recognition, or assignment of these" }, { "docid": "22837313", "title": "", "text": "review appropriate,” id. at 111, 109 S.Ct. 948, and “we review a denial of benefits under an ‘arbitrary and capricious’ standard.” Orvosh v. Program of Group Ins. for Salaried Emps. of Volkswagen of Am., Inc., 222 F.3d 123, 129 (3d Cir.2000). Likewise, when an administrator acts pursuant to her authority “to construe the terms of the plan,” Gritzer v. CBS, Inc., 275 F.3d 291, 295 (3d Cir.2002) or “to act as a finder of facts,” Mitchell v. Eastman Kodak Co., 113 F.3d 433, 438 (3d Cir.1997), abrogated on other grounds as recognized by Miller v. Am. Airlines, Inc., 632 F.3d 837, 847 (3d Cir.2011), we also apply the arbitrary and capricious standard when reviewing those interpretations and factual findings. “An administrator’s decision is arbitrary and capricious ‘if it is without reason, unsupported by substantial evidence or erroneous as a matter of law.’ ” Miller, 632 F.3d at 845 (quoting Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 45 (3d Cir.1993)) (internal quotation marks omitted). An administrator’s interpretation is not arbitrary if it is “reasonably consistent with unambiguous plan language.” Bill Gray Enters. v. Gourley, 248 F.3d 206, 218 (3d Cir.2001). When a plan’s language is ambiguous and the administrator is authorized to interpret it, courts “must defer to this interpretation unless it is arbitrary or capricious.” McElroy v. SmithKline Beecham Health & Welfare Benefits Trust Plan, 340 F.3d 139, 143 (3d Cir.2003). “The determination of whether a term is ambiguous is a question of law. A term is ambiguous if it is subject to reasonable alternative interpretations.” Taylor v. Cont'l Group Change in Control Severance Pay Plan, 933 F.2d 1227, 1233 (3d Cir.1991) (citations omitted). Courts defer to an administrator’s findings of facts when they are supported by “substantial evidence,” which we have “defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Soubik v. Dir., Office of Workers’ Comp. Programs, 366 F.3d 226, 233 (3d Cir.2004). When reviewing an administrator’s factual determinations, we consider only the “evidence that was before the administrator when he made the decision being reviewed.” Mitchell, 113 F.3d" }, { "docid": "5797660", "title": "", "text": "court and sought summary judgment. The district court granted Reliance’s third summary judgment motion. The district court concluded that, as long as Reliance had considered the contrary opinion of Thomas’ doctors when making its coverage decision, Reliance had not abused its discretion in discrediting those opinions and denying Thomas’ claim. DISCUSSION I. Standard of Review “[A] denial of benefits challenged under [ERISA] is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The principal issue on appeal is whether the district court erred in reviewing Reliance’s decision for abuse of discretion based on its conclusion that the Policy granted Reliance discretionary authority. We review the district court’s grant of summary judgment de novo. See Lang v. Long-Term Disability Plan, 125 F.3d 794, 797 (9th Cir.1997). We also review de novo Thomas’ “contention that the district court did not apply the proper standard of review.” McDaniel v. Chevron Corp., 203 F.3d 1099, 1107 (9th Cir.2000). Our consideration of Thomas’ claim is guided by our recent en banc decision, Kearney v. Standard Ins. Co., in which we held that district courts must review claims de novo unless the discretion to grant or deny claims is “unambiguously retained” by a plan administrator or fiduciary. 175 F.3d at 1090 (quoting Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir.1992)). We concluded that unambiguous retention of discretion by an administrator or fiduciary is required because of the well-settled rule of policy interpretation dictating that “ambiguities are construed in favor of the insured.” Id. Applying this principle to the plan at issue in that case, we held that a policy that conditions payment of benefits on the “receipt of satisfactory written proof’ of disability is ambiguous because it is susceptible of at least three interpretations, two of which would not confer absolute discretion on the administrator or fiduciary. Id. at 1089-90 (quoting benefit plan)" }, { "docid": "88949", "title": "", "text": "benefits retroactive to November 1, 2000, the effective date of Hartford’s termination. Both parties filed motions for summary judgment, which the district court denied. The district court set the case for a bench trial, but the parties agreed to forego a bench trial in favor of proceedings on the briefs and a stipulated fact record. Sloan filed a motion for introduction of additional evidence outside the administrative record, i.e., the favorable social security decision and the medical records contained in the social security administrative record. The district court granted his motion, finding good cause existed under the circumstances present in this case. Sloan v. Hartford Life & Accident Ins. Co., 433 F.Supp.2d 1037, 1039 (D.N.D.2006). Because the plan did not grant Hartford discretion to interpret plan language or determine eligibility for benefits, the district court applied de novo review to determine whether Sloan qualified for long-term disability benefits. Id. at 1047-48. Under that standard, the district court determined he was entitled to disability benefits. The district court based its decision, in part, on a conclusion the plan was ambiguous with respect to whether long-term disability benefits were owed only to a claimant who could not engage in any work — whether part-time or full-time — or whether a claimant who could work part-time was still entitled to benefits. The district court construed the ambiguity against Hartford and concluded the plan provided benefits to a claimant who could work part-time. In the alternative, the district court found as a matter of fact that Sloan could not engage in even part-time work, basing its finding upon the medical evidence in the record, the favorable social security decision, and Sloan’s failed attempt to work part time in late 2001 and early 2002. Id. at 1049-50. Because Hartford was allowed to offset the social security disability benefits Sloan was entitled to receive as of January 2001, the district court calculated the amount of past due disability benefits Hartford owed after offsetting social security benefits, as follows: • From November-Deeember 2000, the full amount of LTD benefits amounts to $1,701 per month for a total" } ]

[ { "docid": "16950048", "title": "", "text": "contested confirma tion hearing. As it did in the Original Memorandum Opinion, the Court finds again that this is a core proceeding over which it has jurisdiction to enter a final order. Alternatively, even if this is a non-core proceeding, as a result of its repeated prior admissions, CIT has consented to this Court’s jurisdiction to enter a final order. See 28 U.S.C. § 157(c)(2); Hiser v. Neumann Medical Center, Inc. (In re St. Mary Hospital), 117 B.R. 125, 181 (Bankr. E.D.Pa.1990) (“An admission that a proceeding is core accords irrevocable consent to a bankruptcy court to determine the proceedings, even if it is non-core”); see also Gravel and Shea v. Vermont Nat’l Bank, 162 B.R. 961, 966 (D.Vt.1993) (finding that in the context of an adversary proceeding, “[i]n its answer to VNB’s Complaint, Gravel and Shea admitted that the proceeding was core. The Bankruptcy Judge below found that Gravel and Shea’s admission that the proceeding was core amounted to explicit consent ... Such an admission has been deemed express consent to the bankruptcy court’s final determination of the matter”) (citations omitted); cf. McFarland v. Leyh (In re Texas General Petroleum Corp.), 52 F.3d 1330, 1337 (5th Cir.1995). 2. § 524(e) CIT reargues its earlier objection to confirmation and contends that the Further Modified Plan does not comply with § 1129(a)(1) of the Code because the permanent injunction and temporary injunction provisions of the Further Modified Plan improperly discharge non-debtor third parties in violation of § 524(e) of the Bankruptcy Code. For the reasons stated in the Original Memorandum Opinion and as further clarified below, CIT’s objections are overruled. It is important to understand what the Further Modified Plan does, and perhaps more importantly, does not do. The permanent injunction provision of the Further Modified Plan, section 11.03, has no effect on CIT at all. CIT’s requested language from paragraph 19 of the January 30 Objection was placed in section 11.03 of the Further Modified Plan. Section 11.03 of the Further Modified Plan now provides that Nothing in this paragraph 11.03 shall constitute a permanent injunction against CIT from commencing" } ]

[ { "docid": "2529490", "title": "", "text": "law violation claim, final orders and judgments may not be entered by a bankruptcy court with respect to a noncore matter “except with the express consent of the parties.” Fed.R.Bankr.P. 7012(b), 11 U.S.C.A. (West 2003) (emphasis added). Relying on such bankruptcy rule, some courts hold that the requisite consent under § 157(c) can only be express and cannot be supplied by implication. See, e.g., In re Norton, 87 B.R. 1021, 1022-1023 (Bankr.D.S.D.1988) (finding that the matters at issue therein were noncore despite the parties’ agreement to the contrary, failing to find the requisite consent under § 157(c) by implication notwithstanding the parties’ aforesaid agreement, and directing the parties to amend their complaint, counter-complaint, and responses thereto so as to indicate whether they expressly consent to the entry of final orders and judgments regarding noncore matters). Such bankruptcy rule notwithstanding, however, much caselaw exists to the effect, indeed perhaps “ ‘[t]he substantial weight of authority[ ] indicates!,] that a party can impliedly consent to entry of judgment by the bankruptcy court in a non-core related matter.’ ” In re Pisgah Contractors, Inc., 215 B.R. 679, 682 (W.D.N.C.1995) (quoting from In re Johnson, 960 F.2d 396, 403 (4th Cir.1992), and citing other similar decisions); see also 10 Collier on Bankruptcy ¶ 7012.11 at 7012-25 n. 3 (Bender 2003) (citing numerous cases to the same effect); In re Farmland Industries, Inc., 2003 WL 1950004 at *4 (Bankr.W.D.Mo.2003) (plaintiff deemed to have consented to the entry of a final order or judgment in a noncore matter by virtue of having filed complaint in the first place). Moreover, case authority exists for the proposition that a defendant’s admission that a matter is core “may be deemed an expression of consent to allowing ... [a] court to determine ... [a] matter, even if it is non-core.” In re Grigsby, 119 B.R. 479, 484 (Bankr.E.D.Pa.1990), vacated on other grounds, 127 B.R. 759 (E.D.Pa.1991). Of course, if such an admission by a defendant constitutes express consent by that party to the entry of final orders and judgments in a noncore matter, then certainly a plaintiffs allegation contained within" }, { "docid": "2529492", "title": "", "text": "a complaint to the effect that a matter is core should also constitute similar express consent — indeed, the Court believes that to deem such an allegation by a plaintiff an expression of such consent is particularly appropriate given that plaintiffs in general, at least in the Court’s experience, will, from time to time, allege that matters are core when they full well know the exact opposite, that is that such matters are noncore, with the hope that, by so alleging, perhaps they can obtain the entry of a final judgment by the Court in their favor. In light of the foregoing, the Court rules that the parties herein expressly consented to the entry of final orders and judgments with respect to the Debtor’s usury law violation claim, with such express consent effected by virtue of the Debtor’s allegation and First Mount Vernon’s admission to the effect that such claim is core; such ruling negates the necessity of having to resolve whether the consent called for by § 157(c) can be supplied by implication. Because the parties consent to the entry of final orders and judgments with respect to the Debtor’s usury law violation claim, the Court’s rulings in Part I above, to wit that First Mount Vernon’s cross-motion for summary judgment is granted and the Debtor’s motion for summary judgment is denied with prejudice to the extent that the same pertain to the Debtor’s Count 1 for usury law violation, shall constitute a final, in contrast to a proposed, order/judgment upon the Court’s full adjudication of the remaining counts within the Debtor’s complaint (i.e., Counts 2 and 3 therein). As an aside, the Court notes that, from a practical standpoint, whether its rulings with respect to the Debtor’s usury law violation claim can constitute a final order rather than a proposed order may not be significant, and notwithstanding that proposed rulings by a bankruptcy court — both factual and legal — that are the subject of a specific objection are reviewed de novo by a district court, see 28 U.S.C.A. § 157(c)(1), whereas only legal rulings by a bankruptcy" }, { "docid": "10199993", "title": "", "text": "statement that the party does or does not consent to entry of final orders or judgment by the bankruptcy judge. In non-core proceedings final orders and judgments shall not be entered on the bankruptcy judge’s order except with the express consent of the parties. Fed.R.Bankr.P. 7012(b). In this case, Sierracin’s failure to admit or deny the Plaintiffs averment that the matter was a “core” proceeding is deemed an “admission” in accordance with general rules of pleading under Rule 8(d) of the Federal Rules of Civil Procedure. The Plaintiffs averment that the proceeding was “core” is not the kind of allegation to which no responsive pleading is required. In fact, such a responsive pleading is explicitly required under Bankruptcy Rule 7012(b). See Fed.R.Bankr.P. 7012(b). Moreover, Sierra-cin never objected to the bankruptcy court’s exercise of “core” jurisdiction over Count II at the pre-trial conference or at the hearing on summary judgment. Accordingly, the Court finds that Sierracin consented to the bankruptcy court’s “core” jurisdiction over Count II, see In re G.S.F. Corp., 938 F.2d 1467, 1476 (1st Cir.1991) (consent to bankruptcy court’s jurisdiction over related matters need not be necessarily explicit and may be implied). Based on that consent and in accordance with § 157(b)(3), the Court hereby makes an explicit determination that it has “core” jurisdiction over Count II pursuant to § 157(b)(2). Sierracin’s second argument concerns the propriety of entering final judgment on fewer than all claims in an adversary pro ceeding. It has been generally held that Rule 54(b) of the Federal Rules of Civil Procedure, as made applicable to adversary proceedings by Bankruptcy Rule 7054, allows the Court to confer finality upon an order adjudicating fewer than all of the claims in an adversary proceeding. See Fed.R.Civ.P. 54(b). When the court directs the entry of a final judgment as to less than all of the claims or parties it must determine that there is no just reason for delay in entry of the judgment. See Darr v. Muratore, 8 F.3d 854, 862 (1st Cir.1993); Section 1120(A)(1) Committee of Unsecured Creditors v. Interfirst Bank (In re Wood and Locker," }, { "docid": "2924895", "title": "", "text": "proof of claim.” Id. . The Trustee admits in the Complaint that \"[tjhis adversary proceeding involves counterclaims by the estate against persons that have filed claims in the Soporex Debtors’ cases, and, thus, is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(C).” Compl., ¶ 1. . Related to proceedings are those that neither arise in nor arise under title 11, but otherwise \"could conceivably affect the estate being administered in bankruptcy.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383 (5th Cir.2010); In re Morrison, 555 F.3d 473 (5th Cir.2009). . Whether consent works after Stem remains an open issue. See, e.g., In re BearingPoint, Inc., 453 B.R. 486, 497 (Bankr.S.D.N.Y.2011) (“it's fair to assume that it will now be argued, that consent, no matter how uncoerced and unequivocal, will never again be sufficient for bankruptcy judges ever to issue final judgments on non-core matters. That huge uncertainty presages litigation over that issue with the potential to tie up this case, and countless others, in knots”); Jonathan Azoff and Thomas Szaniawski, Stern v. Marshall and the Limits of Consent, 30 Am. Bankr. L. J. 28 (2011). . Whether the parties can remove the constitutional impediment identified in Stem by consent is unclear. See supra n.8. Given that uncertainty, and given the fact that the Defendants have not yet answered the Complaint, it is unclear whether the Defendants would consent to this Court finally determining the claims asserted against them by the Trustee (even assuming consent works). See Fed. R. Bankr.P. 7012(b) (requiring a defendant to state if he consents to the entry of final orders or judgment by the bankruptcy judge in non-core proceedings). If a challenge is made to these proposed findings and conclusions such that the district court is required to review them de novo, guidance from the district court regarding whether it believes consent suffices to remove the constitutional impediment identified in Stem would be of great assistance to the bankruptcy judges of this district, the Defendants, and future litigants. . The Court therefore rejects the Outside Directors’ argument that the Trustee" }, { "docid": "12599364", "title": "", "text": "terms of art that draw a divide in this federal bankruptcy jurisdiction between (1) \"core” proceedings \"arising under” or \"arising in,” in which a bankruptcy judge can enter final orders, and (2) noncore \"related to” proceedings, in which only a district court can enter final orders absent consent of the parties to a bankruptcy court adjudication.” Ralph Brubaker, Article Ill’s Bleak House (Part I): The Statutory Limits of Bankr. Judges' Core Jurisdiction, 31 NO. 8 Bankr. L. Letter 1, 16 (Aug., 2011) [hereinafter \"Brubaker, Part I ”] (quoting Ralph Brubaker, On the Nature of Fed. Bankr. Jurisdiction: A Gen. Statutory & Constitutional Theory, 41 Wm. & Mary L. Rev. 743, 857 (2000) (footnotes omitted)). . See In re Apex Express Corp., 190 F.3d 624, 631 (4th Cir.1999) (applying and interpreting BAFJA's core/non-core distinction); Wood, 825 F.2d at 95-98 (interpreting and applying the jurisdictional provisions of BAFJA); In re Ben Cooper, Inc., 896 F.2d 1394 (2d Cir.1990) (assuming the constitutionality of the BAFJA without analysis); see also Meoli v. Huntington Nat’l Bank (In re Teleservs. Grp., Inc.), 456 B.R. 318, 320 (Bankr.W.D.Mich.2011) (\"For over twenty-five years, my colleagues and I have operated with the understanding that we were properly constituted judges capable of rendering final judgments in many, but not all, matters arising in connection with a bankruptcy proceeding.\"). . See, e.g., Teleservs. Grp., 456 B.R. at 323 (\"[Stern] offers virtually no insight as to how to recalibrate the core/non-core dichotomy. ...”). . For an extensive discussion of the facts and procedural posture of Stem, see In re USDigital, Inc., 461 B.R. 276, 280-81 (Bankr.D.Del.2011); In re Safety Harbor Resort & Spa, 456 B.R. 703, 707-10 (Bankr.M.D.Fla. 2011); Brubaker, Part I, at 2-6. .“Stern distinguished prior cases that considered trustees' counterclaims against proofs of claim by noting that whereas those counterclaims 'assert[ed] a right of recovery created by federal bankruptcy law,’ the tortious interference claim was ‘in no way derived from or dependent upon bankruptcy law.’ ” Siegel v. FDIC (In re IndyMac Bancorp Inc.), 2011 WL 2883012, at *6 (C.D.Cal. July 15, 2011) (quoting Stern, 131 S.Ct. at 2618). See" }, { "docid": "12697786", "title": "", "text": "Rule of Bankruptcy Procedure 7008, which implements the statutory core/non-core dichotomy, provides: Proceedings before a bankruptcy judge are either core or non-core. 28 U.S.C. § 157. A bankruptcy judge may enter a final order or judgment in a core proceeding. In a non-core proceeding, absent consent of the parties, the bankruptcy judge may not enter a final order or judgment but may only submit proposed findings of fact and conclusions of law to the district judge who will enter the final order or judgment. 28 U.S.C. § 157(c)(1). The amendment to subdivision (a) of this rule requires an allegation as to whether a proceeding is core or non-core. A party who alleges that the proceeding is non-core shall state whether the party does or does not consent to the entry of a final order or judgment by the bankruptcy judge. Failure to include the statement of consent does not constitute consent. Only express consent in the pleadings or otherwise is effective to authorize entry of a final order or judgment by the bankruptcy judge in a non-core proceeding. Amendments to Rule 7012 require that the defendant admit or deny the allegation as to whether the proceeding is core or non-core. Fed. R. Bankr.P. 7008 advisory committee's note (1987) (emphasis added). . The dissent relies upon various cases, some cited with approval in In re G.S.F., in which the specific issue involved consent by a party' — unlike Sheridan — who had invoked the bankruptcy court's jurisdiction. See Canal Corp. v. Finnman (In re Johnson), 960 F.2d 396, 398 (4th Cir.1992) (noting that appellant was plaintiff in adversary proceeding); Mann v. Alexander Dawson, Inc. (In re Mann), 907 F.2d 923, 925-26 (9th Cir.1990) (same); Daniels-Head & Assocs. v. William M. Mercer, Inc. (In re Daniels-Head & Assocs.), 819 F.2d 914, 919 (9th Cir.1987) (same); Pisgah Contractors, Inc. v. Rosen (In re Pisgah Contractors, Inc.), 215 B.R. 679, 682 (W.D.N.C.1995) (\"[B]y asserting a counterclaim against the debtor in the adversary proceeding, the Ro-sens subjected themselves to the equitable power of the Bankruptcy Court.”); Jefferson Nat'l Bank v. I.A. Durbin, Inc. (In re" }, { "docid": "2529488", "title": "", "text": "it does because (a) the extent of the Court’s subject matter jurisdiction, that is whether a proceeding is core or noncore, must be ascertained separately with respect to each claim for which relief is sought within an adversary proceeding, see In re Passodelis, 234 B.R. 52, 62 (Bankr.W.D.Pa.1999) (quoting from and citing to Halper v. Halper, 164 F.3d 830, 836 & 838-839 (3rd Cir.1999)), (b) it thus matters not when ascertaining whether the Debtor’s usury law violation action constitutes a core matter that the Debtor’s separate count for constructive fraudulent conveyance is a core matter, (c) “ ‘[a] proceeding is core [1] if it invokes a substantive right provided by Title 11 [of the U.S.Code] or [2] if it is a proceeding, that by its nature, could arise only in the context of a bankruptcy case,’ ” In re Guild and Gallery Plus, Inc., 72 F.3d 1171, 1178 (3rd Cir.1996); Halper, 164 F.3d at 836-837, (d) the Debtor’s usury law violation claim neither invokes a substantive right provided by Title 11 nor is a proceeding that by its nature could only have arisen within the context of a bankruptcy case, and (e) the Debtor’s usury law violation claim does not fall within any of the illustrative matters listed in § 157(b)(2) including, and notwithstanding the contrary plea of the Debtor, those matters set forth in paragraphs (H), (K), and (0) of § 157(b)(2). Because the Debtor’s constructive fraudulent conveyance action constitutes a core matter, the Court is empowered to enter final orders and judgments with respect thereto. See 28 U.S.C.A. § 157(b)(1) (West 1993). However, since the Debtor’s usury law violation count constitutes only a noncore matter, the Court may enter final orders and judgments regarding such action only if the parties consent thereto. See 28 U.S.C.A. § 157(c) (West 1993). Must such consent be express or can it also be implied? Furthermore, if such consent must be express, how can express consent be effected? The bankruptcy rules straightforwardly provide that, within the context of an adversary proceeding, such as, for instance, the present one wherein arises the Debtor’s usury" }, { "docid": "2529491", "title": "", "text": "” In re Pisgah Contractors, Inc., 215 B.R. 679, 682 (W.D.N.C.1995) (quoting from In re Johnson, 960 F.2d 396, 403 (4th Cir.1992), and citing other similar decisions); see also 10 Collier on Bankruptcy ¶ 7012.11 at 7012-25 n. 3 (Bender 2003) (citing numerous cases to the same effect); In re Farmland Industries, Inc., 2003 WL 1950004 at *4 (Bankr.W.D.Mo.2003) (plaintiff deemed to have consented to the entry of a final order or judgment in a noncore matter by virtue of having filed complaint in the first place). Moreover, case authority exists for the proposition that a defendant’s admission that a matter is core “may be deemed an expression of consent to allowing ... [a] court to determine ... [a] matter, even if it is non-core.” In re Grigsby, 119 B.R. 479, 484 (Bankr.E.D.Pa.1990), vacated on other grounds, 127 B.R. 759 (E.D.Pa.1991). Of course, if such an admission by a defendant constitutes express consent by that party to the entry of final orders and judgments in a noncore matter, then certainly a plaintiffs allegation contained within a complaint to the effect that a matter is core should also constitute similar express consent — indeed, the Court believes that to deem such an allegation by a plaintiff an expression of such consent is particularly appropriate given that plaintiffs in general, at least in the Court’s experience, will, from time to time, allege that matters are core when they full well know the exact opposite, that is that such matters are noncore, with the hope that, by so alleging, perhaps they can obtain the entry of a final judgment by the Court in their favor. In light of the foregoing, the Court rules that the parties herein expressly consented to the entry of final orders and judgments with respect to the Debtor’s usury law violation claim, with such express consent effected by virtue of the Debtor’s allegation and First Mount Vernon’s admission to the effect that such claim is core; such ruling negates the necessity of having to resolve whether the consent called for by § 157(c) can be supplied by implication. Because" }, { "docid": "17547109", "title": "", "text": "of the Code, thereby “arising under” title 11, nor are dependent on the bankruptcy case’s existence, thereby “arising in” a case under title 11, the outcome of these claims could conceivably effect the administration of the bankruptcy estate because any recoveries on claims before the closure, dismissal, or conversion of Humes’s case would become property of the Chapter 13 estate under § 1306(a)(1). See Price v. America’s Servicing Co. (In re Price), 403 B.R. 775, 779 (Bankr.E.D.Ark. 2009) (finding “related to” jurisdiction over Chapter 13 debtor’s FDCPA and breach of contract claims predicated on prepetition conduct). Having established jurisdiction, the Court must now determine which claims involve core proceedings and which ones do not. Id. at 779-80. Proceedings that “arise under” or “arise in” a bankruptcy case are core proceedings whereas proceedings that are merely “related to” the bankruptcy case are noncore proceedings. 28 U.S.C. § 157(b)-(c); Frelin, 292 B.R. at 377; see also Specialty Mills, Inc. v. Citizens State Bank, 51 F.3d 770, 773-74 (8th Cir.1995). Generally in core proceedings, the bankruptcy court may enter final orders and judgments, subject to district court appellate review. See 28 U.S.C. § 157(b)(1). In noncore proceedings otherwise related to a case under title 11, “the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court” unless the parties consent to the bankruptcy court’s entry of a final judgment. Id. § 157(c)(1)-(2). The issue here is the bankruptcy court’s authority to enter a final judgment on Humes’s claims. The Court has already determined that Humes’s § 522(h) lien avoidance action and proof of claim objection are proceedings that “arise under” or “arise in” a case under title 11. These actions are also “core” and the Court has the authority to enter a final judgment on them. See Id. § 157(b)(2) (providing non-exhaustive list of core proceedings). However, because the Court only has related to jurisdiction over Humes’s remaining claims (claims one through five), these claims are noncore. The Defendants have not consented to the bankruptcy court’s entry of a final judgment on these noncore claims, and the" }, { "docid": "10250410", "title": "", "text": "and a possible discharge of the prepetition claims pursuant to 11 U.S.C. § 1141(d)(1) in the event that the debtor succeeds in achieving a confirmed plan of reorganization. A confirmed plan of reorganization also acts as res judicata with respect to claims resolved as a result of the confirmation. See Howe v. Vaughan (In re Howe), 913 F.2d 1138 (5th Cir.1990). Consent to Non-Article III Jurisdiction A bankruptcy judge may enter a final order or judgment in a non-core proceeding in accordance with 28 U.S.C. § 157(c)(2) “with the consent of all the par ties to the proceeding.” In the instant case, “all the parties” have not consented to such jurisdiction. Manifestly, the defendants did not consent when they refrained from filing proofs of claims and filed counterclaims only after being sued by the debt- or. The defendants’ failure to consent was further evidenced by their demands for a jury trial in the answers which they filed. Moreover, the debtor has not consented to non-Article III jurisdiction. In its complaint, the debtor expressly stated that its action against the defendants was a non-core proceeding. However, such statement need not be regarded as a nonrebuttable judicial admission in the pleadings. See United States Aviex Co., Inc. v. Aviex International, Inc. (In re United States Aviex Co., Inc.) 96 B.R. 874, 879 (N.D.Ind.1989). Nonetheless, the debtor’s characterization of its proceeding as non-core is certainly inconsistent with a consent to non-Article III jurisdiction, especially when Bankruptcy Rule 7008(a) requires a clear and unambiguous “consent of all the parties to the proceeding.” The Advisory Committee Note to Bankruptcy Rule 7008(a) states in relevant part: “Only express consent in the pleadings or otherwise is effective to authorize entry of a final order or judgment by the bankruptcy judge in a non-core proceeding.” Additionally, Bankruptcy Rule 7012(b) states in relevant part: In non-core proceedings final orders and judgments shall not be entered on the bankruptcy judge’s orders except with the express consent of the parties. (Emphasis added). In the instant case, neither the debtor, nor the defendants expressly consented to the bankruptcy judge’s authority to enter" }, { "docid": "14524385", "title": "", "text": "or judgment consistent with Article III of the United States Constitution.” To the extent that any claim in the Complaint is a non-core claim, the moving parties have explicitly consented to this Court’s entry of a final judgment dismissing or preserving those claims. Non-Debtors’ Mot. at 1, Debtors’ Mot. ¶ 3. The Defendants filed their respective Motions on March 6, 2013. The Motions seek dismissal of the Complaint under Rule 12(b)(5) for insufficient service of process, Rule 12(b)(6) for failure to state a claim upon which relief may be granted, and the judicial doctrines of collateral es-toppel and res judicata. Plaintiffs did not respond to the Motions or appear at the hearing on the Motions. II. DISCUSSION A. Authority to Enter Final Judgment Count I of the Complaint alleges that Defendants violated the automatic stay created by the Bankruptcy Code, so the claim is a core matter over which the bankruptcy court may enter final judgment. 28 U.S.C. § 157(b). Other claims included in the Complaint appear to be non-core claims, but that issue need not be completely resolved. If a matter brought before the bankruptcy court is non-core, “the parties may consent to entry of a final order or judgment by a bankruptcy judge.” Executive Sounding Board Assocs. Inc. v. Advanced Machine & Engineering Co. (In re Oldco M Corp.), 484 B.R. 598, 605 (Bankr.S.D.N.Y.2012) (citing Stern v. Marshall, — U.S. -, 131 S.Ct. 2594, 2606, 2609, 180 L.Ed.2d 475 (2011)); 28 U.S.C. § 157(c)(2). Here, the defendants expressly consented to the Court entering final orders or judgment. Since filing the Complaint, the Plaintiffs have not appeared or filed any additional pleadings. While the Plaintiffs did not comply with Local Bankruptcy Rule 7008-1, they did expressly request that the Court enter judgment in their favor on all of the claims in the Complaint. Under these circumstances, the Court concludes that the Plaintiffs likewise consented to the Court entering final orders or judgment in this case. B. Legal Standard Bankruptcy Rule 7012 incorporates by reference Rule 12(b)-(i) of the Federal Rules of Civil Procedure (the “Rules”). Fed. R. Bankr.P. 7012(b)." }, { "docid": "18603035", "title": "", "text": "consent to entry of final orders or judgment by the bankruptcy judge. (b) ATTORNEY’S PEES. A request for an award of attorney’s fees shall be pleaded as a claim in a complaint, cross-claim, third-party complaint, answer, or reply as may be appropriate. COMMITTEE NOTE Proceedings before a bankruptcy judge are either core or non-core. 28 U.S.C. § 157. A bankruptcy judge may enter a final order or judgment in a core proceeding. In a non-core proceeding, absent consent of the parties, the bankruptcy judge may not enter a final order or judgment but may only submit proposed findings of fact and conclusions of law to the district judge who will enter the final order or judgment. 28 U.S.C. § 157(c)(1). The amendment to subdivision (a) of this rule requires an allegation as to whether a proceeding is core or non-core. A party who alleges that the proceeding is non-core shall state whether the party does or does not consent to the entry of a final order or judgment by the bankruptcy judge. Failure to include the statement of consent does not constitute consent. Only express consent in the pleadings or otherwise is effective to authorize entry of a final order or judgment by the bankruptcy judge in a non-core proceeding. Amendments to Rule 7012 require that the defendant admit or deny the allegation as to whether the proceeding is core or non-core. F.R.Civ.P. 8(a) sets forth three basic requirements for a complaint: 1) a statement of the Court’s jurisdiction; 2) a short and plain statement of the claim showing that the pleader is entitled to relief; and, 3) a demand for relief. See, Carter v. Larkham, (In re Larkham), 31 B.R. 273, 275, 10 BCD 1093 (Bkrtcy.D.Vt.1983). A generalized summary of the claims is usually sufficient to afford notice to opposing parties. Friedlander v. Cimino, M.D., 520 F.2d 318 (2d Cir.1975); Vermont Real Estate Investment Trust v. Crowell, (In re Vermont Real Estate Inv. Trust), 21 B.R. 744, 746 (Bkrtcy.D.Vt.1982). The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may" }, { "docid": "10698275", "title": "", "text": "the reference, notwithstanding the bankruptcy court’s inability, absent consent, to issue a final judgment on the claims, have also cited Men’s Sportswear with approval. See Weisfelner v. Blavatnik (In re Lyondell Chem. Co.), 467 B.R. 712, 722 (S.D.N.Y.2012) (Cote, J.); Messer v. Bentley Manhattan Inc. (In re Madison Bentley Assocs., LLC), 474 B.R. 480, 436 (S.D.N.Y.2012) (Scheindlin, J.). In both cases, the courts found that the moving parties had not consented to the bankruptcy court’s adjudication of the matters. In Weisfelner, the court held that the defendants’ participation in proceedings before the bankruptcy court without objection for over a year, and the bankruptcy court’s order confirming the plan and allowing the court to “hear and determine” claims, did not amount to the defendants’ consent to the court’s ability to enter final judgment on their core fraudulent transfer claims. 467 B.R. at 722. First, the court explained that implied consent appeared to be insufficient under Fed.R.CivP. 12(b), made applicable by Bankruptcy Rule 7012(b), because Rule 7012(b) requires the “express consent of the parties” for a bankruptcy court to issue a final judgment in non-core matters. Id. (“There is no implied consent where, as here, defendants seek withdrawal at the close of discovery before any trial activities or judgment, and where new precedent renders unclear the authority of the bankruptcy to enter final judgment on certain claims.”). Significantly, Rule 7012(b) presupposes that a party responded to a complaint; this makes the rule inapplicable to default judgment determinations, where no response has been filed. In addition, the court drew a distinction between subject matter jurisdiction and the court’s authority to enter final judgments, finding that, while the plan’s language authorizing the court to “hear and determine” claims conferred jurisdiction upon the court, it did not confer authority for the court to enter final judgments. Id. In Messer, the complaint asserted fraudulent conveyance and alter ego claims. The district court found that the defendants had not consented to the court’s adjudication of their claims by failing to timely file a motion to withdraw the reference. 474 B.R. at 436-37. The court noted that, pursuant" }, { "docid": "10724946", "title": "", "text": "28 U.S.C. § 157(b)(2)(A) and (H) and 28 U.S.C. § 1334. This Court has jurisdiction over adversary proceeding 09-02045-JAD pursuant to 28 U.S.C. § 157(c) and 28 U.S.C. § 1334. The matters within adversary proceeding 09-02045-JAD are not core proceedings but are otherwise related to a case under title 11; all parties have consented to this Court to hear and determine the proceedings related to a case under title 11 and to enter appropriate orders and judgments pursuant to 28 U.S.C. § 157(c)(2). (See Adv. No. 09-02045-JAD, Doc. # 79, Order Approving Joint Discovery Plan, ¶ 4). In his Pre-Trial Statement, EZIII relies on the recent Supreme Court decision in Stern v. Marshall, — U.S. -, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011), to argue that this Court lacks the ability to enter a final judgment on the Trustee’s state law claims. (Adv. No. 09-2045-JAD, Doc. # 109, pp. 4-5). This Court rejects EZIII’s assertion because both parties have consented to the entry of a final judgment by this Court. (See Adv. No. 09-02045-JAD, Doc. # 79). Such consent is sufficient to allow this Court to hear and finally determine the instant matters, regardless of whether they are statutorily defined as “core” or “non-core,” pursuant to 28 U.S.C. § 157(c)(2). ARDI Limited Partnership v. The Buncher Company, (In re River Entertainment Co.), 467 B.R. 808 (Bankr.W.D.Pa.2012) (parties’ consent to entry of final judgment by the bankruptcy court permits final adjudication by non-Article III bankruptcy courts of non-core and core matters alike as Stem v. Marshall did not impact the consent provision of 28 U.S.C. § 157). For the reasons set forth below, the Court finds EZIII liable for the Trustee’s count of breach of fiduciary duty to the Debtor. However, the Court finds the Trustee’s argument concerning EZIII’s liability as to deepening insolvency unpersuasive. Additionally, the Court finds Hillcrest liable for the value of the fraudulent transfer it received from the Debtor, and the Court finds EZJr liable for the value of the fraudulent transfers, from which he benefited, from the Debtor. Lastly, the Court finds the Trustee’s argument that" }, { "docid": "22792424", "title": "", "text": "trust. As was discussed above, bankruptcy judges may hear non-core related proceedings, but they may not enter final orders; in such cases they are usually required to submit proposed findings and conclusions to the district court where they are subject to de novo review. 28 U.S.C. § 157(c). The only exception to this requirement occurs when the district court refers a non-core related matter to the bankruptcy court under § 157(c)(2). Under § 157(c)(2) a bankruptcy court may enter appropriate orders and judgments in non-core related matters where such matters are referred by the district court and it has the consent of all the parties. The statute does not address the question of whether consent must be express or whether it may be implied. Various courts and commentators have taken differing approaches. Some courts hold that consent must be express and that failure to object to the bankruptcy court exercising jurisdiction in a related proceeding does not waive the right to claim that the bankruptcy court lacked jurisdiction. In re Nell, 71 B.R. 305, 311 (D.Utah 1987); See Norton Bankruptcy Law and Practice (Callaghan) § 5.33 (1987) (concluding that consent to entry of judgment in non-core related proceedings must be express). Other courts hold that a party’s right to challenge entry of judgment by the bankruptcy court in a non-core related matter can be waived by failure to make a timely objection. In re Men’s Sportswear, Inc., 834 F.2d 1134, 1137-38 (2d Cir.1987); In re Daniels-Head & Assocs., 819 F.2d 914, 918-19 (9th Cir.1987); In re Southern Indus. Banking Corp., 809 F.2d 329, 331 (6th Cir.1987); Lombard-Wall Inc. v. New York City Housing Devel. Corp, 44 B.R. 928, 12 C.B.C.2d 492 (S.D.N.Y.1984). The substantial weight of authority, indicates that a party can impliedly consent to entry of judgment by the bankruptcy court in a non-core related matter. Canal and RED’s acquiescence to the December 20, 1989 order constitutes such a waiver. Canal and RED were apparently content with the December 20,1989 order which contemplated distribution through the general partnerships. They consented without objection to the court deciding to distribute through" }, { "docid": "2529489", "title": "", "text": "that by its nature could only have arisen within the context of a bankruptcy case, and (e) the Debtor’s usury law violation claim does not fall within any of the illustrative matters listed in § 157(b)(2) including, and notwithstanding the contrary plea of the Debtor, those matters set forth in paragraphs (H), (K), and (0) of § 157(b)(2). Because the Debtor’s constructive fraudulent conveyance action constitutes a core matter, the Court is empowered to enter final orders and judgments with respect thereto. See 28 U.S.C.A. § 157(b)(1) (West 1993). However, since the Debtor’s usury law violation count constitutes only a noncore matter, the Court may enter final orders and judgments regarding such action only if the parties consent thereto. See 28 U.S.C.A. § 157(c) (West 1993). Must such consent be express or can it also be implied? Furthermore, if such consent must be express, how can express consent be effected? The bankruptcy rules straightforwardly provide that, within the context of an adversary proceeding, such as, for instance, the present one wherein arises the Debtor’s usury law violation claim, final orders and judgments may not be entered by a bankruptcy court with respect to a noncore matter “except with the express consent of the parties.” Fed.R.Bankr.P. 7012(b), 11 U.S.C.A. (West 2003) (emphasis added). Relying on such bankruptcy rule, some courts hold that the requisite consent under § 157(c) can only be express and cannot be supplied by implication. See, e.g., In re Norton, 87 B.R. 1021, 1022-1023 (Bankr.D.S.D.1988) (finding that the matters at issue therein were noncore despite the parties’ agreement to the contrary, failing to find the requisite consent under § 157(c) by implication notwithstanding the parties’ aforesaid agreement, and directing the parties to amend their complaint, counter-complaint, and responses thereto so as to indicate whether they expressly consent to the entry of final orders and judgments regarding noncore matters). Such bankruptcy rule notwithstanding, however, much caselaw exists to the effect, indeed perhaps “ ‘[t]he substantial weight of authority[ ] indicates!,] that a party can impliedly consent to entry of judgment by the bankruptcy court in a non-core related matter.’" }, { "docid": "20214478", "title": "", "text": "hear fraudulent conveyance claims as core proceedings. They are focusing on the dicta of Stern, not its holding. I believe that this approach thrusts unnecessary burdens on already overworked district courts, especially when bankruptcy courts have a particular expertise in and familiarity with avoidance actions.”). This Court concludes that the Trustee’s fraudulent transfer claims are core proceedings stemming from the bankruptcy itself for which this Court has authority to enter final orders. Stem’s narrow holding does not apply to the claims at issue. B. Consent Even if it were determined that the Court lacks authority to enter final orders because the Trustee’s fraudulent transfer claims are merely “related to” the bankruptcy, § 157(c)(2) provides that a bankruptcy judge can issue final judgments in non-core proceedings if the parties consent. In this matter, the Court finds that the IRS explicitly and impliedly consented to this Court’s final resolution of the claims at issue. Specifically, the Complaint’s allegation, the IRS’ admission, and the IRS’ stipulation that this action is a core proceeding serves as the IRS’ explicit consent for the Court to treat this matter as a core proceeding in which it may enter a final order. See e.g., Mercury Cos., Inc. v. FNF Security Acquisition, Inc., 2011 WL 5127613, *2 (D.Colo. Oct. 31, 2011) (citing In re C.W. Mining Co., 2009 WL 4906702, *2 (D.Utah Dec. 11, 2009)); In re St. Mary Hosp., 117 B.R. 125, 131 (Bankr.E.D.Pa. 1990) (“An admission that a proceeding is core accords irrevocable consent to a bankruptcy court to determine the proceeding, even if it is non-core”); In re Peacock II, 455 B.R. at 812 (“Authority exists for the proposition that consent may be implied and that even a mistaken admission of core jurisdiction acts as consent.”). Consent can also be implied from a litigant’s course of conduct. Stern, 131 5.Ct. at 2608. Recognizing the value of waiver and forfeiture in complex cases, the Stem Court concluded that if the defendant believed the Bankruptcy Court lacked authority to decide his defamation claim, he should have said so and said so promptly. Id. The Court further noted" }, { "docid": "18603009", "title": "", "text": "under Title 11; and d) A civil proceeding related to a case under Title 11. Taxel v. Commercebank (In re World Financial Services Center, Inc.), 64 B.R. 980, 982, 14 BCD 1306, 15 CBC.2d 836, 838 (Bkrtcy.S.D.Cal.1986). See, Allis-Chalmers Corp. v. Borg-Warner Acceptance Corp. (In re Dr. C. Huff Co., Inc.), 44 B.R. 129, 134, 11 CBC.2d 1039, 40 UCCRS 284 (Bkrtcy.W.D.Ky.1984) (three classes of legal controversies: 1. core cases; 2. non-core related cases; and 3. non-core unrelated cases). Under 28 U.S.C. § 157(a), the District Court may provide that any or all cases under Title 11 and any or all proceedings arising in or related to a case under Title 11 may be referred to Bankruptcy Judges for the District. VLBR 7012 con tains the Bankruptcy Court’s reference for the District of Vermont. The distinction between core and non-core is important in at least one respect, that being a Bankruptcy Court’s ability to enter a final order. 28 U.S.C. §§ 157(c)(1) and (2) provide that a Bankruptcy Judge may hear non-core proceedings that are otherwise related to a case under Title 11, but may not enter a final order or judgment without the consent of the parties. Instead, the Bankruptcy Judge must submit proposed findings of fact and conclusions of law for the District Court’s de novo review. In a core matter we may enter a final order. In some pro- eeedings, we may determine the circumstances are appropriate for us to determine that the parties consented to the entry of a final order despite the absence of an express consent. The distinction between core and non-core should not be confused with our power to hear the matter. We have subject matter jurisdiction regardless of its core or non-core status. See, In re Wefco, Inc., 97 B.R. 749, 19 BCD 423 (E.D.N.Y.1989). The core or non-core distinction affects only our ability to enter a final order. “Core” is not defined, nor is it limited to the fifteen nonexclusive categories contained in 28 U.S.C. § 157(b)(2). Some Courts have confined themselves to a narrow approach in ascertaining the scope of" }, { "docid": "10250411", "title": "", "text": "its action against the defendants was a non-core proceeding. However, such statement need not be regarded as a nonrebuttable judicial admission in the pleadings. See United States Aviex Co., Inc. v. Aviex International, Inc. (In re United States Aviex Co., Inc.) 96 B.R. 874, 879 (N.D.Ind.1989). Nonetheless, the debtor’s characterization of its proceeding as non-core is certainly inconsistent with a consent to non-Article III jurisdiction, especially when Bankruptcy Rule 7008(a) requires a clear and unambiguous “consent of all the parties to the proceeding.” The Advisory Committee Note to Bankruptcy Rule 7008(a) states in relevant part: “Only express consent in the pleadings or otherwise is effective to authorize entry of a final order or judgment by the bankruptcy judge in a non-core proceeding.” Additionally, Bankruptcy Rule 7012(b) states in relevant part: In non-core proceedings final orders and judgments shall not be entered on the bankruptcy judge’s orders except with the express consent of the parties. (Emphasis added). In the instant case, neither the debtor, nor the defendants expressly consented to the bankruptcy judge’s authority to enter final orders or judgment in this non-core proceeding. Indeed, the defendants object to this proceeding being characterized as core, whereas the debtor expressly declared in its complaint in this adversary proceeding that the action was non-core. In these circumstances, the bankruptcy judge may not enter final orders or judgment in this non-core proceeding in which the defendants have not filed any proofs of claim and have demanded a jury trial with respect to all the issues because all of the parties have not consented to a final determination of this non-core proceeding by the bankruptcy court. In sum, the debtor’s non-core adversary proceeding for a breach of a prepetition contract arising out of the defendants’ prepetition and post-petition alleged defaults in paying the amounts due under the surplus notes should be tried by a jury as to the disputed issues of fact after the district court withdraws the reference as to this proceeding pursuant to 28 U.S.C. § 167(d). A bankruptcy court does not have authority to conduct a jury trial in a non-core proceeding" }, { "docid": "20214479", "title": "", "text": "consent for the Court to treat this matter as a core proceeding in which it may enter a final order. See e.g., Mercury Cos., Inc. v. FNF Security Acquisition, Inc., 2011 WL 5127613, *2 (D.Colo. Oct. 31, 2011) (citing In re C.W. Mining Co., 2009 WL 4906702, *2 (D.Utah Dec. 11, 2009)); In re St. Mary Hosp., 117 B.R. 125, 131 (Bankr.E.D.Pa. 1990) (“An admission that a proceeding is core accords irrevocable consent to a bankruptcy court to determine the proceeding, even if it is non-core”); In re Peacock II, 455 B.R. at 812 (“Authority exists for the proposition that consent may be implied and that even a mistaken admission of core jurisdiction acts as consent.”). Consent can also be implied from a litigant’s course of conduct. Stern, 131 5.Ct. at 2608. Recognizing the value of waiver and forfeiture in complex cases, the Stem Court concluded that if the defendant believed the Bankruptcy Court lacked authority to decide his defamation claim, he should have said so and said so promptly. Id. The Court further noted that “[i]n such cases, as here, the consequences of ‘a litigant ... “sandbagging” the court — remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor,’ — can be particularly severe.” Id. (internal citations omitted). In this case, the IRS actively litigated this matter for more than a year. During this time the IRS filed a Motion to Dismiss in which it voiced only one objection to this Court’s jurisdiction — sovereign immunity. The Court, finding the objection to be without merit, denied the Motion to Dismiss. Nearly one year after the Complaint was filed, the IRS filed a Motion for Partial Summary Judgment in which it argued that it was entitled to summary judgment based upon an argued lack of evidence establishing the elements of the claims. At no time did the IRS seek to withdraw the reference from this Court to the District Court. At no time prior to the Objection did the IRS advance any argument that the claims in this action" } ]

[ { "docid": "21948435", "title": "", "text": "U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). 2. Underlying Constitutional Violation Taking the facts in the light most favorable to Pendergrass, we assume that she suffered a constitutional injury and would therefore survive judgment as a matter of law on the first step of a municipal liability claim under § 1983. To succeed on her municipal liability claim, Pendergrass must demonstrate both: (1) the deprivation of a constitutional right, and (2) the School District is responsible for that violation. Doe v. Claiborne County, 103 F.3d 495, 505-06 (6th Cir.1996). To demonstrate that her punishment violated her substantive due process rights, Pendergrass must prove that “the force applied caused injury so severe, was so disproportionate to the need presented, and was so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.” Webb v. McCullough, 828 F.2d 1151, 1158 (6th Cir. 1987) We assume that, taking the facts in the light most favorable to Pendergrass, Gibbs’s actions met this standard. According to Pendergrass, because she forgot to bring a pencil to class, Gibbs grabbed her and slammed her head against the blackboard. Gibbs then threw her on the ground and choked her for approximately one minute. As a result, Pendergrass suffered petechia and contusions on her neck. Later, Pendergrass also exhibited symptoms consistent with post-traumatic stress disorder. See id. at 1154,1158-59 (holding that a high school principal’s actions, in breaking down a student’s door, throwing the student against a wall, and slapping the student, were shocking to the conscience). 3. Custom or Policy of Failure to Train or Supervise Pendergrass’s claim of failure to train or supervise nonetheless fails because no reasonable jury could find that the School District was deliberately indifferent to complaints of abuse by substitute teachers. A plaintiff who sues a municipality for a constitutional violation under § 1983 must prove that the municipality’s policy or custom caused the alleged injury. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct." } ]

[ { "docid": "10117552", "title": "", "text": "either ground must fail. As discussed in Part II.B.l, supra, Baynes failed to present facts upon which a reasonable juror could conclude that the individual defendants’ conduct constituted deliberate indifference to a serious medical need under the Eighth Amendment. Without an underlying unconstitutional act, Baynes’ claim against the County under § 1983 must also fail. See Grabow v. Cnty. of Macomb, 580 Fed.Appx. 300, 311-12 (6th Cir.2014) (affirming the trial court’s grant of summary judgment to the county-defendant where plaintiff failed to present facts upon which a reasonable juror could conclude the inmate’s Eighth and Fourteenth Amendment rights to adequate medical care were violated, noting that “[ajbsent an underlying constitutional violation, [plaintiffs] claim against the county under § 1983 must also fail.”) (internal citations omitted); see also, e.g., Wilson v. Morgan, 477 F.3d 326, 340 (6th Cir.2007) (“There can be no Monell municipal liability under § 1983 unless there is an underlying unconstitutional act.”). Even if there were an underlying constitutional violation, however, Baynes’ claim would fail because he fails to show a genuine issue of material fact as to whether there was a “direct causal link” between the County’s action and any alleged deprivation of federal rights, which is required to surpass summary judgment. See Perez v. Oakland Cnty., 466 F.3d 416, 432 (6th Cir.2006) (holding that plaintiffs claim of deliberate indifference by a municipality failed in part because he failed to show a genuine question as to whether there was a direct causal link between the municipality’s action and the deprivation of federal rights). III. CONCLUSION For these reasons, we hold that Defendants Cleland and Maiorana are not entitled to qualified immunity for Baynes’ claim of excessive force. Accordingly, the district court’s judgment on Baynes’ excessive force claim is hereby REVERSED and REMANDED to proceed to trial. We further hold that Baynes’ claim of deliberate indifference to a serious medical need is insufficient to withstand summary judgment, and hereby AFFIRM the district court’s judgment on that claim. . The parties do not dispute that the deputies were acting under the color of state law during the incidents at" }, { "docid": "20718639", "title": "", "text": "109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) and Monell, 436 U.S. at 692-94, 98 S.Ct. 2018). “The policy or custom need not be memorialized in a specific rule or regulation.” Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir.1996) (citing Sorlucco v. N.Y. City Police Dep’t, 971 F.2d 864, 870 (2d Cir.1992)). A policy, custom, or practice of the municipal entity may be inferred where “ ‘the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.’ ” Patterson, 375 F.3d at 226 (quoting Kern, 93 F.3d at 44). However, a municipal entity may only be held liable where the entity itself commits a wrong; “a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell, 436 U.S. at 691, 98 S.Ct. 2018. Here, it is not disputed that Suffolk County maintains a “Mandatory Arrest Policy” in situations involving an alleged violation of a protection order. {See Defs.’ Mem. of Law at 6-8.) However, because probable cause existed for plaintiffs arrest — and, therefore no constitutional violation occurred — no Monell claim can lie against Suffolk County. See, e.g., Vippolis v. Haverstraw, 768 F.2d 40, 44 (2d Cir.1985) (“A plaintiff who seeks to hold a municipality liable in damages under section 1983 must prove that the municipality was, in the language of the statute, the ‘person who ... subjected, or cause[d][him] to be subjected,’ to the deprivation of his constitutional rights.” (citing 42 U.S.C. § 1983)); Wray v. City of N.Y., 490 F.3d 189, 196 (2d Cir.2007) (granting summary judgment to city on Monell claim because police officer’s conduct did not deprive plaintiff of his constitutional rights); Torraco, 539 F.Supp.2d at 652 (“[S]ince the individual defendants did not violate plaintiffs’ rights, there can be no liability against the Port Authority.”). Therefore, the Court grants defendants’ motion for summary judgment as to plaintiffs Monell claims. B. State Law Claims Plaintiff also asserts claims under New York State law for false arrest, malicious prosecution, and negligent infliction of emotional injury. (See Compl. ¶¶ 43-54.)" }, { "docid": "20007792", "title": "", "text": "this court. See Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n. 1 (5th Cir.2004) (“Failure adequately to brief an issue on appeal constitutes waiver of that argument.”). Since James fails to present any competent summary judgment evidence that Kle-inheksel participated in the decision to terminate his employment, the district court did not err by dismissing James’s claims against Kleinheksel in his individual capacity. III. Claim Against Collin County Having determined that James’s section 1983 claims against the Commissioners and Kleinheksel, in their individual capacities, were properly dismissed. James’s only remaining claim is against Collin County. To maintain a section 1983 claim against a municipality, a plaintiff must show that officials acted in accordance with an official policy or custom. Monell v. Dep’t of Soc. Servs. of New York City, 436 U.S. 658, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). Thus, municipalities are not vicariously liable for rights violations committed by their employees, but they are liable whenever “their official policies cause their employees to violate another person’s constitutional rights.” City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 923, 99 L.Ed.2d 107 (1988); see also Beattie v. Madison County Sch. Dist., 254 F.3d 595, 601 (5th Cir.2001) To establish a retaliatory discharge claim under the First Amendment, the plaintiff must prove that: (1) he suffered an adverse employment action, (2) his speech involved a matter of public concern, (3) his interest in commenting on the matter of public concern outweighed the defendant’s interest in promoting efficien cy (balancing under Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)), and (4) his speech was a substantial or motivating factor behind the defendant’s actions. Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 220 (5th Cir.1999). James asserts that he suffered an adverse employment action, his termination, because he exercised his First Amendment rights on two separate occasions. The first was his June 19, 2003 letter reporting Kleinheksel for various inappropriate conduct. The second was his 2004 campaign for the Republican nomination for Collin County Commissioner. We will" }, { "docid": "1025985", "title": "", "text": "county. Thus, the official capacity claims against him must be dismissed. Wooten v. Logan, 92 Fed.Appx. 143, 145-47 (6th Cir.2004) (holding that a rape committed by a county sheriff could not be considered part of the county’s “policy or custom” and thus affirming district court’s dismissal of claims against the county). Doe also has not offered any evidence or otherwise demonstrated that Patton was responsible for setting county policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). B. Magoffin County & Salyer’s Motion [Record No. 112] 1. Section 1983 Claims Magoffin County and Salyer (the “County Defendants”) make numerous arguments regarding vicarious liability, sovereign immunity, official immunity, and qualified official immunity with regard to Doe’s 1983 claims. The Court, however, will confine its discussion to relevant Supreme Court cases which establish the requirements for a plaintiff to bring a successful § 1983 claim against a local government for negligent hiring. The discussion must begin by noting that the County Defendants cannot be vicariously liable for Patton’s alleged acts. As the Supreme Court has noted: [i]n Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), we decided that a municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under § 1983. Id., at 694-695, 98 S.Ct. 2018. “It is only when the ‘execution of the government’s policy or custom ... inflicts the injury’ that the municipality may be held liable under § 1983.” Springfield v. Kibbe, 480 U.S. 257, 267, 107 S.Ct. 1114, 94 L.Ed.2d 293 (1987) (O’Connor, J., dissenting) (quoting Monell, [436 U.S.] at 694, 98 S.Ct. 2018). Thus, our first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (emphasis in original). The Sixth" }, { "docid": "3926930", "title": "", "text": "manner identified with particularity what this Defendant did that indicates deliberate indifference. Plaintiffs have put forth no factual support for a claim that this Defendant acted with deliberate indifference towards their plight. Therefore, Plaintiffs have not raised a genuine issue of material fact so as to survive this motion for summary judgment. Consistent with the settled doctrine that traditional concepts of respondeat superior do not apply to civil rights actions arising under section 1983, Plaintiffs claim against Defendant Gordon in his individual capacity must be dismissed on the pleadings. Accord, Rizzo v. Goode, 423 U.S. 362, 375-76, 96 S.Ct. 598, 606, 46 L.Ed.2d 561 (1976); Gay v. Petsock, 917 F.2d 768, 771 (3rd Cir.1990); Heine v. Receiving Area Personnel, 711 F.Supp. 178, 186-88 (D.Del.1989). B. Dismissal of All of Plaintiffs’ Section 1983 Claims Against Defendants Government and Police Department and Defendants Gordon and Scelsi in Their Official Capacities for Failure to Demonstrate the Required Official Custom or Policy It is well established that a municipality cannot be held liable under section 1983 based on a theory of respondeat superi- or. Monell v. Department of Social Sens., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To state a civil rights claim against the New Castle County Government or New Castle County Police Department, the Plaintiffs must present evidence that the allegedly unconstitutional activities of the police officers were pursuant to a “policy statement, ordinance, regulation or decision officially adopted and promulgated by [the County’s] officers.” Id. at 690, 98 S.Ct. at 2036. “The execution of a government policy or custom must inflict the injury and be the moving force behind the alleged constitutional violation.” Cooper v. Merrill, 736 F.Supp. 552, 566 (D.Del.1990) (citing Monell, 436 U.S. at 694, 98 S.Ct. at 2037; City of Canton, 489 U.S. 378, 109 S.Ct. 1197 (need direct causal link between policy and alleged constitutional deprivation). Further, in an official capacity suit, “the entity’s ‘policy or custom’ must have played a part in the violation of federal law.” Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985) (citations" }, { "docid": "16405017", "title": "", "text": "(affirming judgment as a matter of law because the correctional officers’ alleged misconduct in carrying out an official’s order, and not the order itself, was the cause of the constitutional deprivation). This single instance of allegedly failing to follow official policy may rise to the level of negligence. It does not, however, suffice to establish causation as required to advance a claim of municipal liability under § 1983. Wilson v. Lawrence County, 260 F.3d 946, 955 (8th Cir.2001) (citing Daniels, 474 U.S. at 334, 106 S.Ct. 662, for the proposition that “protections of the Due Process Clause are not triggered by negligence”). We also note that the failure of individual County employees to comply fully with ADC policy is not the basis of Russell’s claim. As such, his reliance on Davis v. Hall is inapposite. There, certain prison officials’ disregard for a written order of release resulted in a prolonged incarceration of 57 days. The Davis Court concluded that those individuals responsible for Davis’s prolonged incarceration were not entitled to qualified immunity. 375 F.3d at 720. Unlike this case, the plaintiff in Davis did not claim that his prolonged incarceration was directly caused by prison policy or custom. And unlike Davis, Russell does not claim that any county employee is individually responsible for his prolonged detention. Russell also appears to argue that the custom of failing to follow ADC policy caused his prolonged detention. “A municipal custom is a practice of municipal officials that is not authorized by written law, but which is ‘so permanent and well-settled ... as to [have] the force of law.’ ” Harris v. City of Pagedale, 821 F.2d 499, 504 n. 7 (8th Cir.1987) (quoting Monell, 436 U.S. at 691, 98 S.Ct. 2018). To establish a constitutional violation resulting from such a custom, a plaintiff must show that his alleged injury was caused by municipal employees engaging in a widespread and persistent pattern of unconstitutional misconduct that municipal policymakers were either deliberately indifferent to or tacitly authorized. Larson v. Miller, 76 F.3d 1446, 1453 (8th Cir.1996) (en banc). In the context of this litigation, therefore," }, { "docid": "3370443", "title": "", "text": "our review of the record, we conclude that the plaintiff failed to present evidence from which a reasonable jury could find liability on the part of these defendants. A municipality cannot be responsible for damages under section 1983 on a vicarious liability theory, Monell v. Dept. of Soc. Servs., New York City, 436 U.S. 658, 694-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and “can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue.” City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). District Courts must review claims of municipal liability “independently of the section 1983 claims against the individual police officers.” Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir.1996); Fagan v. City of Vineland, 22 F.3d 1283, 1294 (3d Cir.1994). The plaintiffs municipal liability claim can be divided into two categories: (1) failure to properly train its police officers in the constitutional use of deadly force and (2) failure to equip police officers with alternatives to lethal weapons. A plaintiff must identify a municipal policy or custom that amounts to deliberate indifference to the rights of people with whom the police come into contact. City of Canton, 489 U.S. at 388, 109 S.Ct. 1197. This typically requires proof of a pattern of underlying constitutional violations. Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir.2000). Although it is possible, proving deliberate indifference in the absence of such a pattern is a difficult task. See id. In addition to proving deliberate indifference, a plaintiff must also demonstrate that the inadequate training caused a constitutional violation. See Grazier v. City of Philadelphia, 328 F.3d 120, 124-25 (3d Cir.2003). There must be “a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.’ ” Brown v. Muhlenberg Township, 269 F.3d 205, 214 (3d Cir.2001) (quoting City of Canton, 489 U.S. at 385, 109 S.Ct. 1197). The record here fails to establish deliberate indifference or causation. Chief Zuger testified that officers attend annual in-service courses, where they study, among other subjects, relevant" }, { "docid": "22885100", "title": "", "text": "‘into operation,’ ” 349 F.3d at 904, establishing the defendant’s active participation in the constitutional violation. In both Taylor and Leary the plaintiffs presented evidence that it was the active performance of the defendants’ individual job function which directly resulted in their constitutional injury. Plaintiff presents no evidence that any execution of the supervisors’ job function resulted in Plaintiffs injury. It is clear from the record that Plaintiff has failed to introduce evidence that would make Thomas, Ammon, and Kessinger liable in their role as supervisors of the alleged tortfeasors. We accordingly affirm the district court’s dismissal of Plaintiffs supervisory liability claims. E. CITY LIABILITY 1. City Liability Under § 1983 The district court granted the City summary judgment on all claims. Because we find that the district court erred when it dismissed Plaintiffs claims against the City, we reverse the district court’s summary judgment for Defendant City. Section 1983 does not permit' a plaintiff to sue a local government entity on the theory of respondeat superior. Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 692-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A plaintiff may only hold a local government entity liable under § 1983 for the entity’s own wrongdoing. Id. A local government entity violates § 1983 where its official policy or custom actually serves to deprive an individual of his or her constitutional rights. Id. A city’s custom or policy can be unconstitutional in two ways: 1) facially unconstitutional as written or articulated, or 2) facially constitutional but consistently implemented to result in constitutional violations with explicit or implicit ratification by city policymakers. Id. Where the identified policy is itself facially lawful, the plaintiff “must demonstrate that the municipal action was taken with ‘deliberate indifference’ as to its known or obvious consequences. A showing of simple or even heightened negligence will not suffice.” Bd. of County Comm’rs v. Brown, 520 U.S. 397, 407, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (quoting Harris, 489 U.S. at 388, 109 S.Ct. 1197 (1989)). “Deliberate indifference is a stringent standard of fault, requiring proof that a municipal" }, { "docid": "21424316", "title": "", "text": "plaintiffs’ PHRA claims for reasons identical to those discussed above. . Were plaintiffs able to advance their § 1983 claims against the police department or the City of Harrisburg, granting summary judgment in favor of defendants would nevertheless remain an appropriate disposition of their claims. A municipality acting through its constituent agencies may be held liable only if the plaintiff can \"identify a municipal 'policy' or ‘custom’ that caused the plaintiff's injury.” Bd. of County Comm'rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Liability may not be founded exclusively on the actions of the municipalities' employees via respondeat superior. Colburn v. Upper Darby Twp., 946 F.2d 1017, 1027 (3d Cir.1991). Municipal liability also requires the plaintiff to demonstrate that \" 'there is a direct causal link between [the] municipal policy or custom and the alleged constitutional deprivation.’ \" Brown v. Muh-lenberg Twp., 269 F.3d 205, 214 (3d Cir.2001) (quoting City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). In the present matter, plaintiffs have failed to adduce any evidence that any defendant violated their equal protection rights. See infra Part III.B.2. Moreover, they have not identified any policy or custom of the police department that operated to produce the purported constitutional violations. . Plaintiffs’ complaint does not specify whether they pursue their equal protection claims under the protected-class theory or the class-of-one theory. The court has addressed these claims under the protected-class theory because plaintiffs predicate them upon the \"right[ 1 to be free from race discrimination.” (Doc. 1 ¶¶ 54, 59.) Membership in a protected class is not required for a class-of-one claim. Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (explaining that equal protection prevents intentional, arbitrary discrimination against individuals) Nevertheless, were plaintiffs to rely on the class-of-one theory, they would remain obligated to produce evidence of similarly situated individuals whom defendants treated differently. Hill v. Borough of Kutztown," }, { "docid": "7653945", "title": "", "text": "prisoners—as embodied in its contract with SecureCare—led to that constitutional violation. This claim implicates the familiar principles set forth in Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In Monell, the Supreme Court explained that municipal liability under section 1983 may only attach where the “execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury” complained of. Thus, Graham must prove two basic elements: (1) that a constitutional violation occurred; and (2) that the County “is responsible for that violation.” Doe v. Claiborne Cty., 103 F.3d 495, 505-06 (6th Cir.1996). Our decisions in Watkins and Weaver, discussed above, would be relevant to the first element— i.e., whether Mr. Graham suffered a deprivation of his constitutional right to adequate medical care. We need not decide that issue, however, because we find that even assuming that a constitutional violation occurred, the County cannot be held liable for it. A plaintiff asserting a section 1983 claim on the basis of a municipal custom or policy must “identify the policy, connect the policy to the [County] itself and show that the particular injury was incurred because of the execution of that policy.” Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir.), cert. denied, 510 U.S. 1177, 114 S.Ct. 1219, 127 L.Ed.2d 565 (1994). Graham’s claim is based upon the County’s contract with SecureCare, which gives SecureCare responsibility over the provision of medical care to prisoners in the County jail. The County concedes that this contract constitutes a municipal “policy” within the meaning of Monell. The primary issue is whether Graham has alleged sufficient facts to establish that the alleged constitutional violation happened “because of the execution of [the County’s] policy.” Id. (emphasis added). There must be “a direct causal link” between the policy and the alleged constitutional violation such that the County’s “deliberate conduct” can be deemed the “moving force” behind the violation. Waters v. City of Morristown, 242 F.3d 353, 362 (6th" }, { "docid": "10117546", "title": "", "text": "withstand summary judgment. Terrance, 286 F.3d at 843. Therefore, even if Baynes could satisfy the objective component by showing that his breathing condition qualifies as a serious medical need, he cannot meet the subjective component of his claim as to either Defendant Cleland or Maiorana. Thus, summary judgment as to both Defendants on Baynes’ claim of deliberate indifference to a serious medical need is proper. 2. Defendant Macomb County It is well established that a municipal entity may not be sued for injuries inflicted solely by its employees or agents under § 1983. Monell v. Dep’t of Social Sevrs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A plaintiff may only hold a municipal entity liable under § 1983 for the entity’s own wrongdoing. Gregory v. City of Louisville, 444 F.3d 725, 752 (6th Cir.2006) (“Section 1983 does not permit a plaintiff to sue a local government entity on the theory of respondeat superior.” (citing Monell, 436 U.S. at 692-94, 98 S.Ct. 2018)). Stated otherwise, for a municipal entity to be hable for a violation of § 1983, a plaintiff must show: (1) a deprivation of a constitutional right; and (2) that the municipal entity is responsible for that deprivation. Doe v. Claiborne Cnty., Tenn. By & Through Claiborne Cnty. Bd. of Educ., 103 F.3d 495, 505-06 (6th Cir.1996) (citing Collins v. City of Harker Heights, 503 U.S. 115, 120, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)). Moreover: [a] local government entity violates § 1983 where its official policy or custom actually serves to deprive an individual of his or her constitutional rights. A city’s custom or policy can be unconstitutional in two ways: 1) facially unconstitutional as written or articulated, or 2) facially constitutional but consistently implemented to result in constitutional violations with explicit or implicit ratification by city policymakers. Id. Where the identified policy is itself facially lawful, the plaintiff “must demonstrate that the municipal action was taken with ‘deliberate indifference’ as to its known or obvious consequences. A showing of simple or even heightened negligence will not suffice.” Bd. of County Comm’rs v. Brown," }, { "docid": "10117548", "title": "", "text": "520 U.S. 397, 407, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (quoting [City of Canton, Ohio u] Harris, 489 U.S. at 388, 109 S.Ct. 1197[, 103 L.Ed.2d 412] (1989)). “Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Brown, 520 U.S. at 410, 117 S.Ct. 1382. In other words, the risk of a constitutional violation arising as a result of the inadequacies in the municipal policy must be “plainly obvious.” Id. at 412, 117 S.Ct. 1382; see also Stemler v. City of Florence, 126 F.3d 856, 865 (6th Cir.1997). Gregory, 444 F.3d at 752-53. A plaintiff must show a “direct causal link between the custom and the constitutional deprivation; that is, she must show that the particular injury was incurred because of the execution of that policy.” Doe, 103 F.3d at 508 (internal quotation marks omitted); see also Fair v. Franklin Cnty., Ohio, 215 F.3d 1325 (6th Cir.2000) (table decision) (“Monell requires that a plaintiff identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy.”) (internal quotation marks omitted). To show the existence of a municipal policy or custom leading to the alleged violation, a plaintiff can identify: (1) the municipality’s legislative enactments or official policies; (2) actions taken by officials with final decision-making authority; (3) a policy of inadequate training or supervision; or (4) a custom of tolerance of acquiescence of federal violations. Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir.2005) (citing Monell). In Baynes’ complaint, he asserted a § 1983 claim against Macomb County, arguing that the County “developed and maintained policies or customs exhibiting deliberate indifference to the Constitutional rights of persons within the county, which caused the violation of Plaintiffs rights.” Baynes specifically alleged that Defendant Macomb County “and its sheriffs’ department” implemented the following unconstitutional customs and practices: a. Tolerated and encouraged its police officer to harass its citizens by performing warrantless and unconstitutional searches/seizures on innocent citizens without any legal cause or" }, { "docid": "15144679", "title": "", "text": "we affirm the grant of summary judgment to DeSoto on plaintiffs claim for malicious prosecution whether asserted under state or federal law. D. Negligent Hiring, Training, and Retention With respect to the claim of municipal liability under § 1983, plaintiff argued that the Airport Authority failed to exercise ordinary care in the hiring, training and/or retention of DeSoto. As the district court observed, the applicable standard for municipal liability is deliberate indifference. City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Bd. of County Comm’rs v. Brown, 520 U.S. 397, 411, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). As a result, the district court found that the failure of “ordinary care” asserted by plaintiff was insufficient to establish municipal liability under § 1983. Even before reaching the issue of whether the municipality was deliberately indifferent, however, the plaintiff must demonstrate a constitutional violation at the hands of an agent or employee of the municipality. Ellis v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir.2006); Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir.2001). This is, of course, because municipal defendants may only be sued under § 1983 for their own unconstitutional or illegal policies and may not be held vicariously liable for the unconstitutional acts of their employees. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Having concluded that plaintiff has failed to demonstrate a constitutional violation, whether for unreasonable search and seizure, excessive force, or malicious prosecution, we find plaintiff cannot prevail on his claim for municipal liability under § 1983. Moreover, while it appears that plaintiff did not marshal his evidence regarding an alleged municipal custom or policy in response to the defendants’ dis-positive motions, we cannot help but note that the evidence recounted on appeal simply falls short of what is needed to demonstrate deliberate indifference. Plaintiff specifically asserts that the Airport Authority’s failure to adequately scrutinize DeSoto’s background constituted deliberate indifference to the rights of persons with whom he would come in contact. Harris, 489" }, { "docid": "14955486", "title": "", "text": "de novo the district court’s grant of summary judgment. Farhat v. Jopke, 370 F.3d 580, 587 (6th Cir.2004). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). III. DISCUSSION A. FOURTEENTH AMENDMENT Garretson has asserted a claim against Madison Heights and several individual officers under 42 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution. The Fourteenth Amendment’s Due Process Clause grants pretrial detainees a right to adequate medical treatment — a right analogous to the Eighth Amendment rights of prisoners. Watkins v. City of Battle Creek, 273 F.3d 682, 685 (6th Cir.2001). 1. Madison Heights The language of § 1983 does not create municipal liability “unless action pursuant to official municipal policy of some nature caused a constitutional tort.” Monell v. Dept. of Soc. Serv. of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Additionally, “a municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Id; see also Stemler v. City of Florence, 126 F.3d 856, 865 (6th Cir.1997) (“While a municipality may be held liable under 42 U.S.C. § 1983 for a constitutional violation directly attributable to it, § 1983 does not impose vicarious liability on a municipality for the constitutional torts of its employees.”). To prove her case, Garretson must show that the Madison Heights officers acted with deliberate indifference to her medical needs. Stemler, 126 F.3d at 865, 870. This is a “stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Id. at 865 (internal quotations omitted). Furthermore, Madison Heights can only be liable under § 1983 if the risks of a constitutional violation were plainly obvious. Id. (citing County Comm’rs of Bryan County" }, { "docid": "16405008", "title": "", "text": "2001, the court sentenced Russell to a stay of imposition of sentence with a 53-day term at the ADC as one of the conditions. He was given 53 days’ credit against that sentence for the entire time he spent at the ADC. Russell then brought this suit against Hennepin County and four current and former county officials in their individual and official capacities. In his complaint, Russell alleged that ADC policy or custom caused his prolonged detention in violation of the Fourth and Fourteenth Amendments to the United States Constitution. He also asserted claims against the County for violating Article I, Section 10 of the Minnesota Constitution and for false imprisonment. The defendants argued in a motion for summary judgment that Russell did not suffer a deprivation of constitutional rights, failed to identify an unconstitutional policy or custom and could not prove that a County policy caused his prolonged detention. In his response to the defendants’ motion for summary judgment, Russell agreed to dismiss three of the four individuals while pursuing his claims against the remaining defendants, Henne-pin County and Sheriff McGowan. The district court granted the County’s summary judgment motion, entered judgment in favor of the defendants, dismissed the § 1983 claim and declined to exercise supplemental jurisdiction over the state law claims. II. DISCUSSION A municipality may be liable under § 1983 when an official municipal policy or custom caused a violation of a plaintiffs substantive due process rights. Hayes v. Faulkner County, 388 F.3d 669, 674 (8th Cir.2004); see also City of Canton v. Harris, 489 U.S. 378, 389-91, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (requiring that a plaintiff establish a municipal policy or custom that caused a deprivation of his constitutional rights). Further, “[m]unicipal officials who have final policy-making authority may, by their actions, subject the government to Section 1983 liability.” Angarita v. St. Louis County, 981 F.2d 1537, 1546 (8th Cir.1992) (citing St. Louis v. Praprotnik, 485 U.S. 112, 121-22, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)). Before a municipality can be held liable, however, there must be an unconstitutional act by a municipal" }, { "docid": "14878662", "title": "", "text": "iii. Failure to train Plaintiff contends that the Borough of Sharpsburg and the Borough of Etna violated Nykiel’s Fourteenth Amendment rights by showing “deliberate indifference” to persons suffering a cocaine overdose, cocaine-induced excited delirium, and seizures by failing to adequately train their officers. Plaintiff further contends that had Officers Duffy and Mitchell been adequately trained to deal with an arrestee who was overdosing on cocaine, they would not have tasered him or allegedly broken his neck. Defendants contend plaintiff has failed to produce any evidence of a policy from the Borough of Sharpsburg or the Borough of Etna that was deliberately indifferent, designed to cause, and actually caused a deprivation of any of Nykiel’s constitutional rights. Defendants also assert that none of plaintiffs experts, including her police procedures expert, Van Blaricom, claims the existence of such a policy in his report. When an action against a municipality is based on Section 1983, the municipality can only be liable when the alleged constitutional violation consists of the implementation or execution of a policy, regulation, or decision that has been officially adopted by the municipality or informally adopted by custom. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 659, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Thus, although there can be no liability for the municipality based on vicarious liability, it can be held responsible in and of itself when injury is caused by its adopted policy or custom. See Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir.1996) (citing Monell, 436 U.S. at 694-96, 98 S.Ct. 2018). To establish a Section 1983 claim for a municipality’s failure to train and supervise employees, a plaintiff must (1) identify, with particularity that what the supervisory officials failed to do demonstrates “deliberate indifference,” and (2) [show] a close causal link between the alleged failure and the alleged injury. Daniels v. Delaware, 120 F.Supp.2d 411, 423 (D.Del.2000) (citations omitted); see Reitz v. County of Bucks, 125 F.3d 139, 145 (3d Cir.1997). A plaintiff alleging failure to train is also required to allege facts “demonstrat[ing] a ‘plausible nexus’ or ‘affirmative" }, { "docid": "17424945", "title": "", "text": "658, 691-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The doctrine of respondeat superi- or is inapplicable in § 1983 actions. Id. Rather, municipal liability can attach only when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts may fairly be said to represent official policy, inflicts the injury. Id. at 694, 98 S.Ct. 2018. Moreover, the official policy or custom “must be the moving force of the constitutional violation in order to establish the liability of a government body under § 1983.” Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (quoting Monell, 436 U.S. at 694, 98 S.Ct. 2018); see also Bd. of County Comm’rs v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (noting that a plaintiff must show that municipal action was taken with requisite degree of culpability and must demonstrate a direct causal link between the municipal action and a deprivation of federal rights); Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir.1993) (stating that plaintiff must identify the policy at issue, connect the policy to the governmental body, and show that injuries were incurred because of the execution of that policy) (citing Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir.1987)). Plaintiff argues that the City should be held liable under § 1983 for failure to supervise, failure to train, failure to investigate or discipline, and failure to develop plans and policies to deal effectively with a long known and recognized risk of isolated misconduct during student celebrations. Defendants contend that Plaintiff has failed to present evidence sufficient to support the key elements of her claims against the City. In particular, Defendants relate the details of the extensive training that prepares officers for riot situations and of the extensive planning that is part of the CDP’s preparation for such situations. Defendants also assert that incidents that occurred after Plaintiffs injury — including other alleged constitutional violations by police on April 29, 2001, and the alleged failure to investigate or discipline — cannot" }, { "docid": "17874360", "title": "", "text": "that he “did not personally participate in the booking, incarceration, or supervision of [plaintiff] during the one week period that he was held in the Angelina County Jail.” Def. Ex. # 4. See also Def.Ex. # 5, pp. 127-28. B. Plaintiffs Section 1983 Claim There are two essential elements to any section 1983 action. First, the conduct complained of must have been committed by a person acting under color of state law; and second, this conduct must have deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Augustine v. Doe, 740 F.2d 322, 324-25 (5th Cir.1984). Plaintiff brings claims against Angelina County and the Sheriff of Angelina County in both his official and individual capacities. The § 1983 claim against the county and the claim against the sheriff in his official capacity require that the plaintiff demonstrate municipal causation, in conformity to the principles governing municipal liability set out in Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) and succeeding cases. His claim against Sheriff Lawrence in his individual capacity similarly involves demonstrating that Lawrence was responsible for his constitutional deprivation in accordance with case law governing the liability of supervisory officials for constitutional violations committed by their subordinates. Thompkins v. Belt, 828 F.2d 298 (5th Cir.1987). In order to merit a grant of summary judgment, plaintiff must demonstrate that there is “no genuine issue of material fact” as to each of these three requirements, that is, (1) state action, (2) constitutional deprivation, and (3) municipal or supervisory responsibility. Because there is no dispute that the conduct complained of took place under color of state law, the first question for determination relates to the plaintiff’s alleged constitutional deprivation. C. Deprivation of a Right Secured by the Constitution and Laws Plaintiff argues that he is entitled to summary judgment on his § 1983 claim based on the Due Process and Equal Protection clauses of the Fourteenth Amendment. The Supreme Court’s decisions in Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018," }, { "docid": "14135290", "title": "", "text": "(emphasis in original); accord Jarrett v. Town of Yarmouth, 331 F.3d 140 (1st Cir.2003); Hayden v. Grayson, 134 F.3d 449 (1st Cir.1998). (b). Solitro’s Training. The gravamen of the allegations set forth against Ryan and Cohen in Count II and against the City in Counts III and IV as the allegations pertain to Solitro’s training are that defendants failed to provide Solitro with appropriate training concerning the use of lethal force and the risks related to off-duty police action, including the danger of misidentifieation and shooting of non-uniformed African-American and Hispanic police officers. The jury determined that Solitro violated decedent’s Fourth Amendment right to be free from an unreasonable seizure of his person. Because plaintiff has voluntarily dismissed, with prejudice, all of her claims against Solitro and Saraiva in their individual capacities, she is precluded from recovering monetary damages from Solitro under § 1983. The jury’s determination satisfies only one element of plaintiffs supervisory and municipal liability claims. In addition to proving that he has suffered a violation of a constitutional right, a plaintiff seeking to hold a municipality liable under § 1983 must identify a municipal policy or custom that caused plaintiffs injury. Bd. of County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “[A] municipality may not be held liable under § 1983 solely because it employs a tortfeasor.” Bd. of County Comm’rs of Bryan County, supra (citing Monell, 436 U.S. at 691, 98 S.Ct. 2018). The plaintiff must “demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Id. at 404, 117 S.Ct. 1382. Similarly, a supervisor cannot be held liable under § 1983 for the acts of a subordinate on a respondeat superior theory. City" }, { "docid": "16045389", "title": "", "text": "“persons” subject to liability under 42 U.S.C. § 1983 where official policy or custom causes a constitutional tort. Monell v. Dep’t of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, a municipality may not be held vicariously liable for the unconstitutional acts of its employees under the theory of respondeat superior. Id. at 691, 98 S.Ct. 2018; Bd. of County Comm’rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). 72. To impose municipal liability under § 1983 for a violation of constitutional rights, Plaintiff must show that: (1) he possessed a constitutional right of which he was deprived; (2) the municipality had a policy; (3) the policy amounted to deliberate indifference to his constitutional rights; and (4) the policy was the moving force behind the constitutional violation. Plumeau v. Sch. Dist. No. 40 County of Yamhill, 130 F.3d 432, 438 (9th Cir.1997). 73. Here, the Court finds that Plaintiff has established the first element, but he presented no evidence regarding a policy of the City of Oakland, let alone whether any such policy amounted to deliberate indifference and was the moving force behind the constitutional violation. 74. Accordingly, Plaintiff has not established that he is entitled to judgment as to his municipal liability claim against Defendant City of Oakland. F. Negligence 75. Plaintiffs third claim for relief alleges that the individual defendants’ negligence caused his damages, and that the City of Oakland is liable as respondeat superior. 76. California Civil Code section 1714(a) provides that: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” To prevail on a claim for negligence, Plaintiff must establish: (1) a legal duty to use due care; (2) a breach of that duty; and (3) injury that was proximately caused" } ]

[ { "docid": "22739954", "title": "", "text": "parties and witnesses, and further, that it is in the interest of justice to do so.” The precise issue before us is whether, despite these, expressions, the law remains unchanged. Petitioner so contends. First. The court below relied on the language of § 1404 (a), supra, which it regarded as “unambiguous, direct, clear.” We agree. The reach of “any civil action” is unmistakable. The phrase is used without qualification, without hint that some should be excluded. From the statutory text alone, it is impossible to read the section as excising this case from “any civil action.” The only suggestion petitioner offers in this regard is that “any civil action” embraces only those actions for which special venue requirements are prescribed in §§ 139L-1403 of Revised Title 28, since these sections immediately precede § 1404 (a), and all are within the Venue Chapter '.(§§ 1391-1406, inclusive) of the Code. To accept this contention, we would be required completely to disregard the Congressional admonition that “No inference of a legislative construction is to be drawn by reason of the chapter in Title 28 ... in which any any [sic] section is placed . ...” Furthermore, petitioner's argument proves too much: §§ 1391-1393, which also are in the Venue Chapter and also refer to “any civil action,” would be read as applying only to actions for which special venue requirements are established in neighboring sections of the Code, although they were obviously intended by Congress to be the general venue sections applicable to ordinary actions. It seems more reasonable to hold that § 1404 (a) in terms applies generally, i. e., to “any civil action.”. Second. Although petitioner wishes to restrict the literal meaning of “any civil action,” he would expand the sense of “may transfer ... to any other district or division where it might have been brought” beyond the exact scope of those words. Obviously, the express language gives no clue as to where the action “might have been brought.” . Yet the essence of petitioner’s position is that the order below, transferring his suit, effects a repeal of § 6" } ]

[ { "docid": "23202552", "title": "", "text": "Federal Employers’ Liability Act could be transferred under the provisions of § 1404(a). It was pointed out that § 1404(a) was to meet the problem of abuses in the selection of forums. Section 6 of the Federal Employers’ Liability Act granted the right to sue “in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action.” The court stated that the two sections deal with two separate and distinct problems and that § 1404(a) does not limit or otherwise modify any right granted in Section 6 of the Liability Act to bring suit in any jurisdiction named in the section. Such action, however, it was held, would be subject to transfer under § 1404(a). The inference is that if a party suing under the Federal Employers’ Liability Act had the right to bring a suit in any district mentioned in that Act and the same was transferred under § 1404 (a) to a more convenient forum that no frights acquired in the forum selected by (plaintiff would be lost on transfer. To hold otherwise would be to say that upon transfer the litigants would be in the same position as though the action had been originally brought there. Substantially the same situation would then exist as before the passage of the section and the venue code (Title 28 U.S.C.A. § 1391) would be mutilated. As Moore says the purpose of the section was not to narrow the choice of venue or to restrict the application of established principles of law. The plaintiff further contends that upon the showing made to the court the case should not have been dismissed nor should it have been transferred. Under the provisions of the statute, it is necessary, prior to making a transfer under Section 1404(a), that the court find that such transfer will be not only for the convenience of the parties and their witnesses but further that it is in the interests of justice. Ex Parte Collett, supra; Schoen v." }, { "docid": "14656164", "title": "", "text": "(e) was passed, the venue would have been proper. If the trial judge finds that the convenience of the parties and the interest of justice would be served by transferring the case to Oregon, the policies of Section 1391(e) and Section 1404(a) would be furthered by permitting transfer in this case. Section 1391(e) was intended to relieve plaintiffs of the burden of litigating far from their residences, to relieve the courts in the District of Columbia of some of their case load, and to take advantage of the expertise district judges acquire in the problems peculiar to their areas. S.Rep.No. 1992, 87th Cong., 2d Sess. (1962), 2 U.S.Code Cong. & Ad. News, p. 2784 (1962). In a letter to the Judiciary Committee, the Deputy Attorney General noted that the principal beneficiaries of the venue change would be “those who wish to seek review of decisions relating to public lands, such as * * * consideration of land patent applications * * Id. at p. 2789. Hence, the District Court in Oregon should be regarded as a district where the action “might have been brought” for purposes of § 1404(a). In our view, Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960), does not compel a different conclusion. In that case the defendant moved under Section 1404(a) for a change of venue. Although plaintiff could not have brought the action originally in the transferee jurisdiction because venue was not proper, defendant consented to suit there. The Court held that Section 1404(a) did not authorize transfer in these circumstances. The opinion rested on two interrelated propositions. First, that it would “inject gross discrimination” to permit a defendant to increase the number of districts in which a trial can be held. This would give the defendant an advantage that the plaintiff does not have. That argument has no relevance here since either party would be in a position to move for transfer of the case to Oregon. Second, Hoffman relies to some extent on the “plain meaning” of Section 1404(a). The section states that “a district court may transfer" }, { "docid": "14656161", "title": "", "text": "familiar with the other papers before he rendered his judgment, and hence that the judgment was not based on any material found in them. Since the judgment is to be reversed and the case remanded, another point raised by appellant should be discussed. Appellant asserts that the trial judge erred in denying his pretrial motions to have the case transferred to the District Court in Oregon. There is some merit in the appellant’s argument. At the time his action was filed, April 25, 1962, the only proper venue was the District of Columbia. Subsequently, on October 5, 1962, the following subsection was added to 28 U.S.C. § 1391: “(e) A civil action in which each defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, may, except as otherwise provided by law, be brought in any judicial district in which: (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action. “The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought.” 28 U.S.C. § 1391(e) (Supp. V, 1959-63). Under this subsection, it seems clear that venue would be proper in Oregon if a new suit were brought. Prior to the passage of this amendment, appellant had moved to have the case transferred under 28 U.S.C. § 1404(a). This motion was denied, presumably because venue would not have been proper in Oregon. Appellant again moved to have the case transferred in March, 1963, after the amendment of Section 1391. This motion was also denied. The trial court did not give reasons for the" }, { "docid": "23202553", "title": "", "text": "more convenient forum that no frights acquired in the forum selected by (plaintiff would be lost on transfer. To hold otherwise would be to say that upon transfer the litigants would be in the same position as though the action had been originally brought there. Substantially the same situation would then exist as before the passage of the section and the venue code (Title 28 U.S.C.A. § 1391) would be mutilated. As Moore says the purpose of the section was not to narrow the choice of venue or to restrict the application of established principles of law. The plaintiff further contends that upon the showing made to the court the case should not have been dismissed nor should it have been transferred. Under the provisions of the statute, it is necessary, prior to making a transfer under Section 1404(a), that the court find that such transfer will be not only for the convenience of the parties and their witnesses but further that it is in the interests of justice. Ex Parte Collett, supra; Schoen v. Mountain Producers Corporation, supra; Reviser’s Notes, Title 28 U.S.C.A. § 1404(a); House Report 308, 80th Congress, 1st Session, A. 132. In the Gulf Oil case, Justice Jackson says: “Unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” [330 U.S. 501, 67 S.Ct. 843] Moore observes that this language was used prior to the enactment of § 1404(a) and the court was dealing with forum non conveniens at a time when, if applied, would result in a dismissal. He thinks that now the courts may properly utilize the doctrine more freely than when dismissal resulted. With this we agree but we are of the view that, even though now a dismissal will not result, the doctrine should not be applied, and the plaintiff’s choice of forum disturbed, unless the balance in the defendant’s favor is shown by clear axid convincing evidence. Hex-e the court had before it only an agreement that the cause of action arose in Califoxmia, that the defendant was amenable to process in" }, { "docid": "12390845", "title": "", "text": "arose” within the meaning of 28 U.S.C. § 1391(a) and that venue is proper in that district. V Section 1404(a) of Title 28, U.S.C., provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” Plaintiff’s action “might have been brought” in the Middle District of Florida for essentially the same reasons that we have concluded that venue is proper in that district. We find that any trial of plaintiff’s complaint could be more conveniently tried in the Middle District of Florida than in this district. For many of the witnesses who would be called to testify at trial would obviously be located in Florida rather than in Missouri. We therefore conclude that the interest of justice requires that this case be transferred for the convenience of the parties and witnesses. Professor Moore discusses transfer on plaintiffs motion in ¶ 0.145 [6.-2] of his work on Federal Practice. He there pointed out that the “language of § 1404(a) does not preclude a plaintiff from moving for a transfer to another district.” He also noted that in a particular case a “plaintiff may not be able to obtain effective service of process on the defendant” and that the plaintiff might under such a circumstance “seek a change of venue to a district where service can be obtained.” The transfer to the Middle District of Florida will obviously moot the defendants’ motions to dismiss filed in this Court. For plaintiff may, after transfer, seek to obtain personal service in the transferee district in accordance with applicable law. The transferee court may also consider practical procedures under which the procedures in the pending state court case may be coordinated with the procedures to be directed in this case after its transfer to the Middle District of Florida. The factors stated in this paragraph provide further support for a Section 1404(a) transfer in the interest of justice. VI For the reasons stated, it is ORDERED (1) that this case should be and" }, { "docid": "13654871", "title": "", "text": "contract in the delivery of defective equipment. Stottler, Stagg’s suit is currently pending in the United States District Court for the Middle District of Florida. It is against this background that the Court must consider Stottler, Stagg’s motion to transfer the suit filed by Inter-graph. Title 28, U.S.C. § 1404(a) provides the controlling criteria: For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. It is clear that this action “might have been brought” in the Middle District of Florida. It is clear that Stottler, Stagg would have been amenable to suit there, and venue would, of course, be proper there since all the defendants concededly reside in that district. 28 U.S.C. §§ 1391(a), 1391(c). The propriety of transfer, then, boils down to this: would a transfer best serve the convenience of the parties and the witnesses and the interests of justice? In deciding this question, the plaintiff’s choice of forum must be given considerable weight. Howell v. Tanner, 650 F.2d 610, 616 (5th Cir.1981). However, if the plaintiff’s choice is clearly outweighed by considerations of convenience, cost, judicial economy, and expedition of the discovery and trial processes, a district court has discretion to disregard the plaintiff’s choice of forum and transfer the action to a forum that better promotes these interests. Id. The weighing of relative inconveniences and the determination of the forum in which judicial resources can most efficiently be utilized is a matter committed to the discretion of the trial court. Norwood v. Kirkpatrick, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789 (1966). See also Howell v. Tanner, 650 F.2d at 616. In the present case, there can be little doubt that the Middle District of Florida would be a much more convenient forum for the expeditious resolution of this controversy. To begin with, Intergraph appears to be far more capable of litigating outside its home state than is Stottler, Stagg. Intergraph admittedly sells and services computers in many states, including Florida. Although it" }, { "docid": "10838073", "title": "", "text": "giving rise to the claim occurred,” or where “the defendants are subject to personal jurisdiction at the time the action commenced, if there is no other district in which the action may otherwise be brought.” 28 U.S.C. § 1391(a). A defendant corporation resides, for venue purposes, wherever it is subject to personal jurisdiction at the time the action commenced. 28 U.S.C. § 1391(c). This Court has already determined that it has general jurisdiction over the defendant, which finding renders venue in this district proper, unless some other circumstance would make it improper. Courtaulds’ only argument on the issue of venue, however, is that the Court has no personal jurisdiction over Courtaulds in this case, making venue here improper. In its motion, the defendant also suggested that a transfer may be proper “in the interests of justice,” which the Court interprets as a motion to change the venue pursuant to 28 U.S.C. § 1404(a). Section 1404(a) provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” This section gives the district court discretion “to adjudicate motions for transfer according to an ‘individualized, ease-by-ease consideration of convenience and fairness.’ ” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). When exercising its discretion, the court considers the three factors specified in § 1404(a)—the convenience of the parties, the convenience of the witnesses, and the interest of justice—in light of all the circumstances of the case. Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 & n. 3 (7th Cir.1986). The relative weight to be accorded each factor is not specified in § 1404(a), rather, “[t]he weighing of factors for and against transfer necessarily involves a large degree of subtlety and latitude, and, therefore, is committed to the sound discretion of the trial judge.” Id. The movant bears the burden of persuading the court that the cause should be transferred. Boone v. Sulphur Creek Resort, Inc., 749 F.Supp. 195, 201 (S.D.Ind.1990)." }, { "docid": "545618", "title": "", "text": "This latter section has been held to constitute the definition of corporate “residence” applicable in determining same under the diversity venue provisions of § 1391(a). Pure Oil Co. v. Suarez, 384 U.S. 202, 86 S.Ct. 1394, 16 L.Ed.2d 474 (1966). Both parties to the instant action are corporations. Plaintiff being an Oklahoma corporation is a “resident” of Oklahoma for the purposes of establishing venue and venue is proper in this Court under 28 U.S.C. § 1391. Defendant’s Motion to Dismiss should be overruled as far as it is based on alleged improper venue. It is presumed Defendant’s Motion to Transfer is based on 28 U.S.C. § 1404(a) which provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” Defendant asserts the breach in question occurred in Illinois where Plaintiff admits the contract was executed. Plaintiff in its Response asserts that the malfunctioning of equipment for which reimbursement is sought which is the very basis of the instant action occurred in Oklahoma and its witnesses are located here. It asserts the requested transfer would merely shift the inconvenience from Defendant to Plaintiff. It further contends that Defendant has failed to sustain its burden to justify transfer of this action. The Court agrees with Plaintiff’s position. In Wm. A. Smith Contracting Co. v. Travelers Indemnity Company, 467 F.2d 662 (Tenth Cir. 1972) the Court stated: “The movant under § 1404(a) has the burden of establishing that the suit should be transferred. Unless the balance is strongly in favor of the movant the plaintiff’s choice of forum should rarely be disturbed. The transfer is with the discretion of the trial court . . ” The Defendant has wholly failed to meet its burden in the instant Motion to Transfer and same in the Court’s discretion should be denied. Defendant is directed to Answer the Complaint herein within 20 days of this date. . Relevant allegations in the Complaint include the following: “That on or about October of 1971 the plaintiff" }, { "docid": "7674246", "title": "", "text": "the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). Under this statute, the burden to be met by a defendant seeking transfer is something less than a showing of forum non conveniens, the old doctrine superseded by § 1404(a). But even under § 1404(a) a plaintiff still has the right to select a proper forum of his choice and such “choice should not be disturbed unless the movant demonstrates that the balance of convenience and justice weighs heavily in favor of transfer.” Security National Bank v. Republic National Life Insurance Co., 364 F.Supp. 585 (S.D.N.Y.1973). In deciding a motion to transfer under this section, a court must consider 1) the convenience of the parties; 2) the convenience of the witnesses; and 3) the interests of justice. Further, a case may only be transferred to a court in which the case “might have been brought.” In considering the last requirement first we conclude that this ease might have been brought in the Northern District of Oklahoma. Defendant Liberty is incorporated in the State of Massachusetts with its principal place of business there and has at all relevant times been authorized to do business and is doing business in the Northern District of Oklahoma. 28 U.S.C. § 1391(a) provides that venue in diversity actions such as this lies “in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose.” Corporate residence for purpose of venue is “any judicial district in which it is incorporated or licensed to do business or is doing business . . . .” 28 U.S.C. § 1391(c). Liberty is the sole defendant. The Northern District of Oklahoma is therefore a district in which this case might have been brought. In considering the convenience of the parties we find the equities to be fairly balanced. Neither defendant nor plaintiff has shown that any real inconvenience would result if the case were to be tried in the Southern District of New York. CSC is incorporated" }, { "docid": "4120097", "title": "", "text": "that the language was adopted only to fill venue gaps and not for the convenience of plaintiffs. However indisputable this proposition now becomes, by reason of the Court’s having stated it, the significance of the claim-arising language under Section 1391(e) remains unexplained, although it would appear to have been the most relevant analogy in construing Sections 1391(a) and (b), and the possibility of protecting defendants while at the same time accommodating plaintiffs remains unexplored. D. Request for Transfer Under 28 U.S.G. § 1404(a) Defendants’ request for a transfer under Section 1404(a) is the final venue issue presented. The Northern District of New York, defendants claim, is more convenient for the parties and witnesses in this case than this district. Moreover, they argue that a transfer is “in the interest of justice” because plaintiffs engaged in forum shopping by bringing suit far from the place where all the important witnesses and records are located, and far from where plaintiffs initiated their state court actions. In fact, the principal witnesses in this case will be state officials, most of whom have offices in Albany. Little need exists for the testimony of members of the plaintiff class who reside here. Even the lawyers in this case are from Albany. However welcome such able counsel may be in this district, one cannot help but be suspicious of a party’s motivations when his attorney has to travel several hours to attend a session in his chosen forum. Plaintiffs’ counsel concedes that he consciously chose the Southern District despite its distance from his office. He argues, however, that his motivation was not to inconvenience defendants, but to avoid anticipated delays in an overburdened forum. Section 1404(a) poses little difficulty for courts resolved either to grant or deny motions for transfer. If a court is inclined to grant a transfer, it has available the established doctrine that the section was intended to prevent forum shopping. If a court is inclined to deny a transfer, it usually suffices to invoke the equally well established doctrines that a plaintiff’s choice of forum is entitled to respect, and that a" }, { "docid": "3369230", "title": "", "text": "USC § HOh(a)), Apart from Question of Convenience and Justice of Transfer, 7 A.L.R.Fed. 9, 38-41 (1971). Section 1404(a) states, in pertinent part, the following: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C.A. § 1404(a) (West 1976). Yet, Section 1404(a)’s language is too general to be dispositive in most specific cases. Board of Trustees, Sheet Metal Workers Nat’l Fund v. Baylor Heating & Air Conditioning, Inc., 702 F.Supp. 1253, 1255 (E.D.Va.1988). If venue is proper in the transferor forum, and if the proposed transferee forum is one where the action might have been brought, then the district courts have substantial discretion to decide Section 1404(a) transfer motions by weighing various judge-made factors, all of which have been developed to take account of “the convenience of the parties and witnesses” or “the interest of justice” or both. E.g., id. at 1255-57 & nn. 6, 14 (“the transfer calculus is qualitative, not quantitative”); see also Akers v. Norfolk & W. Ry. Co., 378 F.2d 78, 80 (4th Cir.1967) (reversal of § 1404(a) transfer decision for abuse of discretion). Under Section 1391(a) of Title 28, United States Code, the Western District of North Carolina — the transferor forum — is a proper forum for the present case because Plaintiff resides in this District; North Carolina is Datasouth’s state of incorporation, and Datasouth has its principal place of business in Charlotte, which is within the Western District of North Carolina. Under Section 1391(a) and Section 1391(c), the District of Massachusetts — the prospective transferee district — is a district where this action might have been brought because 3D was subject to personal jurisdiction there at the time Plaintiffs action was commenced. 28 U.S.C. § 1391(a), (c) (West 1976 & Supp.1989) (“a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced”). Thus, the two basic prerequisites for Section 1404(a)" }, { "docid": "4334385", "title": "", "text": "suffering and medical expenses in the amount of two hundred and fifty thousand dollars from each named Defendant for their alleged negligence. Plaintiff initially filed suit against Defendants in the Circuit Court for Cecil County. Defendants removed the case to this Court, pursuant to 28 U.S.C. § 1441(a), on the basis of diversity jurisdiction. Defendants previously sought to transfer venue, arguing that 28 U.S.C. § 1391(a) determined venue and alleging that because all Defendants reside in Pennsylvania and all of the events Plaintiff asserts in his complaint took place in Pennsylvania, venue was proper in the United States District Court for the Eastern District of Pennsylvania. This Court denied Defendants’ motion to transfer for improper venue because it was a removed action. Venue was proper pursuant to 28 U.S.C. § 1441(a), and transfer through 28 U.S.C. § 1391(a) did not apply. See September 19, 2002 Memorandum and Order at 2. Defendants now move to transfer the action to the United States District Court for the Eastern District of Pennsylvania, pursuant to 28 U.S.C. § 1404(a). II. DISCUSSION Section 1404(a) provides: (f)or the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. 28 U.S.C. § 1404. This provision “was intended to enlarge the common law power of the court under the well-established doctrine of forum non conveniens and was enacted to prevent the waste of time, energy and money as well as to protect litigants, witnesses and the public against unnecessary inconvenience and expense.” Dicken v. United States, 862 F.Supp. 91, 92 (D.Md.1994)(citing Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) and Norwood v. Kirkpatrick, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789 (1955)). In a motion pursuant to § 1404(a), the burden is on the moving party to show that transfer to another forum is proper. Verosol B.V. v. Hunter Douglas, Inc., 806 F.Supp. 582, 592 (E.D.Va.1992). In deciding whether a motion to transfer should be granted, courts are to consider" }, { "docid": "4921848", "title": "", "text": "and division embracing the place where such action is pending. Section 1441(d) governs the venue of an action removed from state court. Under its clear terms, venue is appropriate in the federal district “embracing the place where such action is pending.” Willner v. Thompson, 285 F.Supp. 394, 395 (E.D.N.Y.1968). Defendant insists that under 28 U.S.C. § 1391(f), which sets forth the general federal venue requirements for actions against foreign states, venue was improper in the Southern District of Texas. However, 28 U.S.C. § 1391(f) applies only to actions which originally are “brought” in federal court. In that the present case was initially brought in state court and removed to federal court, section 1391(f) does not serve to render venue improper in the Southern District of Texas. Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 665-66, 73 S.Ct. 900, 902-03, 97 L.Ed. 1331 (1953); Minnesota Mining and Manufacturing Co. v. Kirkevold, 87 F.R.D. 317, 321-22 (D.Minn.1980). That Court was the appropriate forum for venue purposes under section 1441 and, accordingly, the Court erred in basing the transfer of the action on 28 U.S.C. § 1406(a). The appropriate basis for transfer was section 1404(a) and, as a result, we must apply the statute of limitations which would have been applied had the action proceeded in the transferor court — namely the Texas statute of limitations. II. Plaintiff’s Motion to Transfer Plaintiff moves to transfer this case to the Northern District of Texas on the grounds that venue in this Court is improper. 28 U.S.C. § 1406(a). Alternatively, plaintiff urges us to transfer the case “for the convenience of parties and witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). We disagree with plaintiff’s assertion that venue is improper in the District of Columbia, but we grant its motion to transfer the case for the prudential considerations outlined in section 1404(a). This is a Court of proper venue to hear the present action. The Republic of Haiti, as a foreign state, is subject to suit in the United States District Court for the District of Columbia. 28 U.S.C. § 1391(f)(4). The two" }, { "docid": "950015", "title": "", "text": "rendered a final judgment. See 28 U.S.C. § 144. It is moot and frivolous because Judge Black did not decide her case. B. Improper Transfer and Subject-Matter Jurisdiction. Next Ms. Weber contends, in essence, that the Gibson court lacked jurisdiction because a venue statute or local rule was violated in assigning the case' there. Neither statute nor rule is jurisdictional. The FOIA places jurisdiction in the judicial district where complainant resides, not to particular courts within that district. 5 U.S.C. § 552(a)(4)(B). Any district court in the Southern District of Texas would have had jurisdiction to hear the complaints and proper venue under 28 U.S.C. § 1391(e)(4) or § 1404. Ms. Weber misconstrues section 1404. That section clearly provides that, for the convenience of parties and in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. Ms. Weber’s action might have been brought in the Galveston Division. Moreover, the district court has wide discretion to determine whether to transfer for the convenience of parties and in the interest of justice. Bearden v. United States, 320 F.2d 99, 101 (5th Cir. 1963), cert. denied, 376 U.S. 922, 84 S.Ct. 679, 11 L.Ed.2d 616 (1964). Our review discerns no abuse of discretion. Finally, Ms. Weber’s voluntary appearance in the action waives the defects, if any, as to venue. Murphy v. Travelers Insurance Co., 534 F.2d 1155, 1159 (5th Cir. 1976). Although she protested the venue change in general terms when she appeared before the court, she concluded by stating, “I don’t really oppose the venue because I would like to have a hearing in this case.” She was granted a hearing forthwith. C. Attorney’s Fees. Ms. Weber argues that her claim is still pending because Judge Gibson failed to adjudicate her claim for attorney fees. She is mistaken; these were necessarily denied when the court dismissed her action and taxed its costs against her and when the court denied her motion for a hearing on that express subject and others by order of June 12, 1980. Such" }, { "docid": "83619", "title": "", "text": "transferred to the court where Hile is pending. II. This court may transfer venue to another district for reasons of convenience when it is “in the interest of justice.” 28 U.S.C. § 1404(a). The moving party must show that (1) venue is proper in this district; (2) venue is proper in the transferee district; (3) the transferee district is more convenient for both the parties and witnesses; and (4) transfer would serve the interest of justice. Bryant v. ITT Corp., 48 F.Supp.2d 829, 832 (N.D.Ill.1999). In ruling on a motion to transfer, I must consider these statutory factors “in light of all the circumstances of the case.” See Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th Cir.1986) (citations omitted). Section 1404(a) does not indicate the relative weight to afford to each of these factors; this is left to the discretion of the district court. See id. at 219, n. 3. The weighing of the relevant factors “involves a large degree of subtlety and latitude, and, therefore, is committed to the sound discretion of the trial judge.” Id. at 219; see also N. Shore Gas Co. v. Salomon Inc., 152 F.3d 642, 648, n. 3 (7th Cir.1998) (citation omitted); Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) (noting that the remedial purpose of § 1404(a) requires “individualized, case-by-case consideration of convenience and fairness”). The movant bears the burden of establishing that the transferee forum is more convenient. Coffey, 796 F.2d at 219. In this case, the plaintiff argues that venue is not proper in the Northern District of California on the grounds that defendant does not reside there or have any contacts other than the present lawsuits. However, defendant operates multiple stores within that district and has consented to personal jurisdiction there. Under 28 U.S.C. § 1391(b), “[a] civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State.” Under § 1391(c), “a" }, { "docid": "23459353", "title": "", "text": "are more so, or the most so.” Merchants National Bank v. SafraBank (California), 776 F.Supp. 538, 541 (D.Kan.1991) (quoting Siegel, Commentary on 1990 Revision of Subdivisions (a), (b) and (e), 28 U.S.C.A. § 1391 (1991)). Since this action was brought in a proper judicial district, transfer or dismissal under Section 1406(a) is inappropriate. III. Section 1404 Transfer In the alternative, defendants move to transfer venue to the Southern District of Florida pursuant to 28 U.S.C. § 1404(a), which provides: For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. 28 U.S.C. § 1404(a). Transfer is appropriate under Section 1404(a) where the moving party demonstrates that (1) venue is proper in the transferor district, (2) venue and jurisdiction are proper in the transferee district, and (3) the transfer will serve the convenience of the parties, the convenience of the witnesses, and the interest of justice. Habitat Wallpaper and Blinds, Inc. v. K.T. Scott Limited Partnership, 807 F.Supp. 470, 474 (N.D.Ill. 1992) (citations omitted). Because the task of weighing factors for and against transfer “necessarily involves a large degree of subtlety and latitude,” the decision to transfer is committed to the sound discretion of the trial judge. Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th Cir.1986) (citations omitted); Heller Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1293 (7th Cir.1989) (citations omitted). The first two elements have been met in this case. First, as explained above, venue is proper in this forum. Second, jurisdiction and venue are proper in the Southern District of Florida (“Southern District”). The Southern District can exercise subject matter jurisdiction over this lawsuit based on diversity of citizenship, as well as personal jurisdiction over these resident defendants. Venue is proper under 28 U.S.C. § 1391(a) since both defendants reside in the Southern District, and the Marina, the property that is the subject of this action, is situated therein. Hence, this Court’s inquiry must focus on the third element, i.e., whether a" }, { "docid": "14656162", "title": "", "text": "arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action. “The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought.” 28 U.S.C. § 1391(e) (Supp. V, 1959-63). Under this subsection, it seems clear that venue would be proper in Oregon if a new suit were brought. Prior to the passage of this amendment, appellant had moved to have the case transferred under 28 U.S.C. § 1404(a). This motion was denied, presumably because venue would not have been proper in Oregon. Appellant again moved to have the case transferred in March, 1963, after the amendment of Section 1391. This motion was also denied. The trial court did not give reasons for the denial of appellant’s motions. However, there is no suggestion on the record that the court exercised its discretion and concluded that transfer would not be “[f]or the convenience of parties and witnesses, [and] in the interest of jus tice * * 28 U.S.C. § 1404(a) We think that the trial judge should consider this matter further in the light of the following principles: Initially, we must consider whether Section 1391(e) should be taken to apply to cases pending at the time of its passage. We conclude that it does. See, e. g., Seay v. Kaplan, 35 F.R.D. 118 (S.D.Ia.1964) (applying Section 1391(f) to an action pending on the date of its passage, December 23, 1963). In Ex parte Collett, 337 U.S. 55, 71, 69 S.Ct. 944, 959, 93 L.Ed. 1207 (1949), the Supreme Court held that Section 1404(a) was itself applicable to actions pending at the time of its passage. If appellant had originally filed his suit in Oregon and the suit had been pending in the District Court there at the time Section 1391" }, { "docid": "14656163", "title": "", "text": "denial of appellant’s motions. However, there is no suggestion on the record that the court exercised its discretion and concluded that transfer would not be “[f]or the convenience of parties and witnesses, [and] in the interest of jus tice * * 28 U.S.C. § 1404(a) We think that the trial judge should consider this matter further in the light of the following principles: Initially, we must consider whether Section 1391(e) should be taken to apply to cases pending at the time of its passage. We conclude that it does. See, e. g., Seay v. Kaplan, 35 F.R.D. 118 (S.D.Ia.1964) (applying Section 1391(f) to an action pending on the date of its passage, December 23, 1963). In Ex parte Collett, 337 U.S. 55, 71, 69 S.Ct. 944, 959, 93 L.Ed. 1207 (1949), the Supreme Court held that Section 1404(a) was itself applicable to actions pending at the time of its passage. If appellant had originally filed his suit in Oregon and the suit had been pending in the District Court there at the time Section 1391 (e) was passed, the venue would have been proper. If the trial judge finds that the convenience of the parties and the interest of justice would be served by transferring the case to Oregon, the policies of Section 1391(e) and Section 1404(a) would be furthered by permitting transfer in this case. Section 1391(e) was intended to relieve plaintiffs of the burden of litigating far from their residences, to relieve the courts in the District of Columbia of some of their case load, and to take advantage of the expertise district judges acquire in the problems peculiar to their areas. S.Rep.No. 1992, 87th Cong., 2d Sess. (1962), 2 U.S.Code Cong. & Ad. News, p. 2784 (1962). In a letter to the Judiciary Committee, the Deputy Attorney General noted that the principal beneficiaries of the venue change would be “those who wish to seek review of decisions relating to public lands, such as * * * consideration of land patent applications * * Id. at p. 2789. Hence, the District Court in Oregon should be regarded as" }, { "docid": "3118703", "title": "", "text": "“shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business....” 42 U.S.C. § 405(g). In this case, however, § 405(g) and (h) do not apply, because this action is collateral to any claim for benefits. Accordingly, venue will be determined in accordance with the customary principles: A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in ... (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated.... 28 U.S.C. § 1391(b). Under § 1391(b), venue is proper in this District, as the Secretary is deemed to reside here when she is sued in her official capacity. See Archuleta v. Sullivan, 725 F.Supp. 602, 605 (D.D.C.1989). Venue would also lie, however, in California, where most of the “events and omissions giving rise to the claim ... occurred.” 2. Transfer of Venue under 28 U.S.C. § 1404(a) is Not Warranted HHS contends that this action should be transferred to California pursuant to 28 U.S.C. § 1404(a). That section provides that “[f|or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). The court has broad discretion to determine whether to transfer an action under § 1404(a). See Rhee Bros., Inc. v. Seoul Shik Poom, Inc., 869 F.Supp. 31, 33-34 (D.D.C.1994) (citation omitted). The factors to consider in exercising that discretion include the preference given to plaintiffs choice of forum; the convenience of the parties and witnesses; the location of the record; and the interest of justice. See Hawksbill Sea Turtle v. FEMA 939 F.Supp. 1, 3 (D.D.C.1996). The interest-of-justice factor encompasses the desire to avoid multiple litigation from a single transaction, to try related litigation together and to consider the regional" }, { "docid": "2355998", "title": "", "text": "the Court transfer this case to the District of Arizona. Transfer analysis must begin with the language of the federal transfer statute, 28 U.S.C. § 1404, which provides: (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. 28 U.S.C. § 1404. Under this scheme, the Court must first determine whether the case could have been brought in the district where the defendant seeks to transfer the matter, in this case Arizona. To make such a determination, the Court must apply the venue statute, 28 U.S.C. § 1391. Under Section 1391(a)(1), venue is proper in a diversity case in the “judicial district where any defendant resides, if all defendants reside in the same state.” In this case both defendants reside in Arizona. Venue would be proper in Arizona. In making its transfer determination, under Section 1404, the Court must next consider three factors: (a) the convenience of the parties; (b) the convenience of the witnesses; and (c) the interest of justice. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir.1995). When weighing these factors, the moving party bears the burden of establishing the need for a transfer of venue. Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir.1992). Because, in any evaluation of a motion to transfer under Section 1404, the plaintiffs choice of forum is entitled to great weight and “shall not be lightly disturbed.” Jumara, 55 F.3d at 879. After reviewing the memoranda of the parties and the accompanying affidavits, the Court finds that the balance of convenience to the parties is flat. Trying the case in Massachusetts would be inconvenient for the defendant. Trying the case in Arizona would be inconvenient for the plaintiff. The defendant has failed to establish that it would be any more inconvenient for the defendant to try the case in Massachusetts than it would be for the plaintiff to try the case in Arizona. Since a transfer to Arizona would merely shift the burden of litigating" } ]

[ { "docid": "19855306", "title": "", "text": "done. The plaintiffs then endorsed Hibernia’s check and delivered it to Salloum. Repeated attempts to negotiate the check given to the plaintiffs by Mr. Salloum failed, of course, because Building Materials was a co-payee and its authorized endorsement was required. By certified letters of October 20, 1973, the plaintiffs sought to rescind the transaction. The defendants took no action to refund to the plaintiffs any money paid by them or to reflect the termination of any security interest created by the transaction. This lawsuit was filed on April 9, 1974. JURISDICTION The provisions of the Act apply to and our jurisdiction depends upon an extension of credit, wherein the underlying transaction qualifies as a consumer credit transaction and not one for “business or commercial purposes.” 15 U.S.C. §§ 1601, 1603(1). “Consumer credit” is defined as “credit offered or extended to a natural person, in which the money, property, or service which is the subject of the transaction is primarily for personal, family, household, or agricultural purposes and for which either a finance charge is or may be imposed or which pursuant to an agreement, is or may be payable in more than four installments.” 12 C.F.R. § 226.2(k); see also 15 U.S.C. § 1602(h). In determining whether a particular transaction is exempt, “the purpose of the transaction or extension of credit is controlling” and not the property which is the subject of the security interest involved. Sapenter v. Dreyco Incorporated, 326 F.Supp. 871, 874 (E.D.La.), aff’d, 450 F.2d 941 (5 Cir.), cert. denied, 406 U.S. 920, 92 S.Ct. 1775, 32 L.Ed.2d 120 (1971). We find that the plaintiffs obtained a loan from Hibernia and entered into a contractual agreement with Building Materials for the purpose of repairing and/or improving their intended residence, prior to occupancy. The transaction was not one for “business or commercial purposes” and, therefore, was not exempt from the provisions of the Act. “CREDITOR” SUBJECT TO DISCLOSURE REQUIREMENTS In enacting truth-in-lending legislation, it was Congress’ intention to “assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various" } ]

[ { "docid": "19309581", "title": "", "text": "the appropriate disclosures. The defendant contended, inter alia, that the mortgage was an exempted transaction and that the suit ought to be dismissed. The District Court agreed, ruling that the “extension of credit to the plaintiffs . . . was certainly not for ‘personal, family, household or agricultural purposes,’ ” but rather was for the purpose of extending “a past due obligation which plaintiffs had incurred on rental property which they purchased and owned as an investment.” 326 F.Supp. at 873. The Fifth Circuit summarily affirmed the decision without a written opinion, Sa-penter v. Dreyco, Inc., 450 F.2d 941 (5th Cir. 1971). In Puckett, the plaintiff owned a mobile home that he was renting to a tenant. This mobile home was destroyed by a fire so the plaintiff negotiated for the purchase of a new one with the defendant. The plaintiff’s testimony revealed that although he sought the new mobile home as a replacement for his tenant, he intended eventually to reside in the replacement home himself. Although the plaintiff did not aver the time at which he intended to take up residence in the replacement home, the evidence was clear that the plaintiff was not in the business of renting mobile homes and had never owned more than one at a time. After the plaintiff purchased the mobile home with the aid of a credit extension from the defendant, the plaintiff filed suit alleging non-disclosure of items required by the Truth-In-Lending Act. The District Court concluded that the credit extension was an exempted transaction not subject to the Truth-In-Lending Act disclosures, finding that the credit extension was made for a business, rather than a personal, family, or household purpose. 5. These decisions, while instructive to some extent, are all qualitatively distinguishable from the matter sub judice and none is controlling. Clearly Gerasta stands, as Moss avers, for the proposition that a landowner obtaining improvements on his or her property with the intent of residing there does not have a business purpose. That is not this case. Similarly, Chapman clearly indicates that when the primary purpose of a credit transaction" }, { "docid": "23182973", "title": "", "text": "(1975). In the first instance, the district court in its discretion on remand should decide whether the plaintiff’s pendent claims should be reinstated. . Accordingly, we leave for yet another day consideration of plaintiffs alternative contention that the appeal should not be dismissed since the failure to obtain the Rule 54(b) certificate was allegedly inadvertent and the district court has now entered the required certificate nunc pro tunc. This court in 1963 held that belatedly entered Rule 54(b) certificates would not retroactively confer appellate jurisdiction in these situations, since the district court was without jurisdiction to enter the delayed certificate. Bush v. United Benefit Fire Insurance Company, 311 F.2d 893 (5th Cir. 1963). More recently, this court questioned the wisdom of the Bush holding and noted that some commentators support giving retroactive effect to Rule 54(b) nunc pro tunc certificates. Kirtland v. McDermott & Co., 568 F.2d 1166, 1170 (5th Cir. 1978). See 10 C. Wright & A. Miller, Federal Practice and Procedure § 2660 at 88-89 (1973). . The Truth in Lending Act is subchapter 1 of the Consumer Credit Protection Act, 15 U.S.C. §§ 1601-1667. The Board of Governors of the Federal Reserve System is authorized by 15 U.S.C. § 1604 to “prescribe regulations to carry out the purpose of this subchapter.” Pursuant to this authority, the Board has issued an interpretative regulation, popularly referred to as “Regulation Z.” 12 C.F.R. §§ 226.1-.1503. See generally, “Civil Remedies of Consumer for Violations of Truth in Lending Act,\" 11 A.L.R. Fed. 815 (1972). For a recent appraisal of the Truth in Lending Act, see Lander & Rohner, A Functional Analysis of Truth in Lending, 26 UCLA L.Rev. 711 (1979). . While prior jurisprudence is an aid to classification, the nature of the credit transaction is ultimately determined by the entire surrounding factual circumstances. See, e. g., Poe v. First National Bank of DeKalb County, supra (purpose of loan transaction was to finance corporation, and thus transaction is commercial, notwithstanding that individual debtors joined in note and gave personal security); Gerasta v. Hibernia Nat'l Bank, 411 F.Supp. 176, 185 (E.D.La.1975), modified," }, { "docid": "19309577", "title": "", "text": "violations alleged in the complaint, and pendent jurisdiction to remedy the alleged state statutory violations, and common law violations. Since the Court is convinced that the jurisdictional issue entails no dispute of material fact, summary judgment is proper. 2. The jurisdictional question is whether the July 14, 1975 contract and the July 23, 1975 contract were transactions of such a nature that this Court’s jurisdiction under the federal Truth-In-Lending Act, Title 15, U.S.C.A. § 1601 et seq. might be invoked. Section 1603(1) exempts consumer credit transactions that involve extensions of credit for business or commercial purposes, and the defendant contends that the Moss contracts involved such purposes. Clearly then the ultimate jurisdictional question in this case is whether the Moss transactions are characterized as having business or commercial purposes, or whether they are deemed to be transactions within the comprehension of the Truth-In-Lending Act. 3. Each party has cited cases in support of their respective positions. Moss relies upon Gerasta v. Hibernia National Bank, 411 F.Supp. 176 (E.D.La.1975), aff’d 575 F.2d 580 (5th Cir. 1978), and Smith v. Chapman, 436 F.Supp. 58 (W.D.Tex.1977). In Gerasta the plaintiffs were residents of New Orleans who were renting an apartment at 4306 Prytania Street at the time of the transaction in question. They purchased a two-family residence located in another part of town (Valence Street) with funds procured through a government loan and secured by a V.A. mortgage. Although both portions of the two-family residence were initially rented to third parties for a time, it was the ultimate intention of the plaintiffs to reside in one portion of the building and rent the other. They actually did move in about lVz years after the purchase and resided in the house during the lawsuit. The transaction in question in the suit was a home improvement loan entered into after the purchase but prior to the time when the plaintiffs actually moved in. When the plaintiffs filed suit alleging that the defendant-creditor had failed to make the necessary disclosures in accordance with the Truth-In-Lending Act, the defendant contended that this was an exempted commercial transaction" }, { "docid": "8272512", "title": "", "text": "is primarily for personal, family, household, or agricultural purposes. .” 12 C.F.R. § 226.2(k) (emphasis supplied); see also 15 U.S.C.A. § 1602(h). 8. The court therefore further concludes as a matter of law that the transaction here involved was for business purposes and thus was exempt from the Act. The court is guided in this determination by the only two reported cases its research uncovers which deal with an interpretation of the “business or commercial purposes” exception. In Sapenter v. Dreyco, Inc., 326 F. Supp. 871 (E.D.La.), aff’d. 450 F.2d 941 (5th Cir. 1971) (per curiam), cert. denied 406 U.S. 920, 92 S.Ct. 1775, 32 L.Ed.2d 120 (1972), the plaintiffs in a Truth in Lending suit owned two pieces of real estate, one of which was their residence and the other a six-unit apartment building. The credit transaction which plaintiffs complained of as deficient under the Act involved the execution of a mortgage on their residence for the purpose of extending a past-due obligation which they had incurred on the rental property. The defendant moved to dismiss, citing, inter alia, the “business or commercial purposes” exemption of the statute. The plaintiffs countered that they were not in the business of owning real estate, but were otherwise employed and owned the apartment building merely as an investment, collecting the rent in their spare time. In granting the defendant’s motion to dismiss, the court stated: “The Truth In Lending Act exemption of credit extensions ‘for business or commercial purposes’ does not distinguish between full-time and part-time businesses. . . . Defendant’s extension of credit to plaintiffs was certainly not for ‘personal, family, household or agricultural purposes.’ Rather, it was to extend a past due obligation which plaintiffs had incurred on rental property which they purchased and owned as an investment. Plaintiffs intended to rent the apartments and derive revenues therefrom. While they may have had other, full-time occupations, plaintiffs were nevertheless engaged in the ‘business’ of owning and renting real estate for profit. Extensions of credit for such purposes were not intended by Congress to come within the purview of the Truth" }, { "docid": "23182974", "title": "", "text": "subchapter 1 of the Consumer Credit Protection Act, 15 U.S.C. §§ 1601-1667. The Board of Governors of the Federal Reserve System is authorized by 15 U.S.C. § 1604 to “prescribe regulations to carry out the purpose of this subchapter.” Pursuant to this authority, the Board has issued an interpretative regulation, popularly referred to as “Regulation Z.” 12 C.F.R. §§ 226.1-.1503. See generally, “Civil Remedies of Consumer for Violations of Truth in Lending Act,\" 11 A.L.R. Fed. 815 (1972). For a recent appraisal of the Truth in Lending Act, see Lander & Rohner, A Functional Analysis of Truth in Lending, 26 UCLA L.Rev. 711 (1979). . While prior jurisprudence is an aid to classification, the nature of the credit transaction is ultimately determined by the entire surrounding factual circumstances. See, e. g., Poe v. First National Bank of DeKalb County, supra (purpose of loan transaction was to finance corporation, and thus transaction is commercial, notwithstanding that individual debtors joined in note and gave personal security); Gerasta v. Hibernia Nat'l Bank, 411 F.Supp. 176, 185 (E.D.La.1975), modified, 575 F.2d 580 (5 th Cir. 1978) (second mortgage on future intended residence is consumer transaction); Adema v. Great N. Dev. Co., 374 F.Supp. 318, 319 (N.D.Ga.1973) (lot purchases for investment reasons are commercial transactions); Puckett v. Georgia Homes, Inc., 369 F.Supp. 614, 619 (D.S.C.1974) (purchase of home for intended rental purpose is commercial transaction); Sapenter v. Dreyco, Inc., 326 F.Supp. 871, 873 (E.D.La.), affd., 450 F.2d 941 (5th Cir. 1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1775, 32 L.Ed.2d 120 (1972) (second mortgage on residence to meet payments on rental property is commercial transaction); Allen v. City Dodge, Inc., 5 Cons. Cred. Guide (CCH) 1:98,428 (N.D.Ga. Sept. 8, 1975) (truck purchase for personal as well as business use is a consumer credit transaction)." }, { "docid": "5428757", "title": "", "text": "secured the note. On May 12, 1976 the debt was renewed, the Poes again guaranteed the debt, and the house secured it. On November 11, 1976 this action was filed alleging violations of 15 U.S.C.A. § 1601 et seq. and Regulation Z, 12 C.F.R. § 226.1 et seq. in the bank’s failure to describe the security deeds and make certain disclosures. The bank counterclaimed for payment of the debt. Both parties moved for summary judgment. The district court granted the bank’s motion for summary judgment on grounds that the Act covers only credit extended to natural persons where the money is primarily for personal, family, household, or agricultural purposes. The Truth-in-Lending Act specifically exempts from its scope extensions of credit for business or commercial purposes. 15 U.S.C.A. § 1603(1); 12 C.F.R. § 226.3(a). As to consumer credit transactions, the Act provides that the adjective “consumer” is specifically intended to characterize the transaction as one in which the party to whom credit is extended is a natural person and the money is primarily for personal, family, household, or agricultural purposes. 15 U.S.C.A. § 1602(h). The plaintiffs claim that the Act is applicable in this case because the Poes were required to guarantee the notes in their individual capacities, neither Poe “owned” the business, Mrs. Poe did not own stock in the corporation, and Mrs. Poe was required to secure the notes with her home. They argue therefore the loan was actually made to the Poes. The plaintiffs’ argument fails to recognize the clear meaning of §§ 1602(h) and 1603(1). The courts will look to the purpose of the loan to determine whether it is covered by the Act. Sapenter v. Dreyco, Inc., 326 F.Supp. 871 (E.D.La.), aff’d, 450 F.2d 941 (5th Cir. 1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1775, 32 L.Ed.2d 120 (1972); Tower v. Home Construction Co. of Mobile, Inc., 458 F.Supp. 112, 116-117 (S.D.Ala. 1978). In the instant case, there is no question that the purpose of each transaction was to finance the corporation. The transactions, therefore, were exempted from the Act. In plaintiffs’ argument that the" }, { "docid": "9865138", "title": "", "text": "make the best of a bad situation and to preserve the rights of her sister, which she worried that she might have the power to release, by drafting her own document. It is difficult to imagine that Ball, who admitted preparing a typewritten settlement document, would wait until after the credit transaction had been consummated to present it to Mad-dock. Even if this Court had the predisposition to believe Ball’s story after his initial testimony, the demeanor of Mrs. Thomas, who, from this Court’s observation, seemed nervous and embarrassed to give a corroborating version of Ball’s testimony, and who, when questioned responded in a guarded tone and with clipped statements, results in little weight and effect being accorded to her testimony. Moreover, in this Court’s opinion, Mr. Ball’s credibility was impinged by his statement regarding the size of the handwriting on the loan documents. This Court does not proceed in a vacuum and in recognizing human nature as it is, finds that the version offered by Maddock is the most logical and credible, and so finds that her testimony although the testimony of an interested party, is eminently believable in contrast to the chain of events testified to by others. Moreover, this Court finds that Mr. Ball’s conduct was entirely intentional, premeditated, coercive, and unreasonable, and that Maddock suffered embarrassment and mental anguish as a result. CONCLUSIONS OF LAW Plaintiffs’ claims of Truth-in-Lending violations based on 15 U.S.C. §§ 1639(a), 1640(a); 26 C.F.R. § 226.1 et seq., are federal questions conferring jurisdiction on this Court under 16 U.S.C. § 1640(e), since at all times in question plaintiffs were “customers” under the Act, 12 C.F.R. § 226.2(u); Mourning v. Family Publications Service, Inc., 411 U.S. 356, 98 S.Ct. 1652, 86 L.Ed.2d 818 (1973), defendant was a “creditor,\" 12 C.F.R. § 226.2(s) and the transactions in question were “consumer loans,\" 15 U.S.C, §§ 1602(h), 1608(1); 12 C.F.R. § 226.-2(p)-,3(a); Sapenter v. Dreyco, Inc., 326 F.Supp. 871 (E.D.La.), aff’d, 450 F.2d 941 (5th Cir. 1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1775, 32 L.Ed.2d 120 (1970); Gallegos v. Stokes, 598 F.2d 872," }, { "docid": "1675108", "title": "", "text": "Truth In Lending Act Claim The transaction between the parties was a consumer transaction subject to the Truth In Lending Act and Regulation Z. See 15 U.S.C.S. § 1602(h) (Law.Co-op.1982 & Supp.1986). The Underwoods are “consumers”. Id. American Home Mortgage Corporation is regularly in the business of extending credit for which the payment of a finance charge is required, and is the person to whom the debt was initially owed and is, therefore, a “creditor” as defined by 15 U.S.C.S. § 1602(f) (Law.Co-op.1982 and Supp.1986). The stated purpose of the Truth In Lending Act is “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of cred-it_” 15 U.S.C.S. § 1601(a) (Law.Co-op. 1982); see Powers v. Sims & Levin Realtors, 396 F.Supp. 12 (E.D.Va.1975), aff'd in part and rev’d in part on other grounds, 542 F.2d 1216 (4th Cir.1976). An objective of the Truth In Lending Act is to inform the consumer not only of the true cost of credit, but also of the nature of the terms of credit offered to him, including a description of the components of finance charge. Meyers v. Clearview Dodge Sales, Inc., 384 F.Supp. 722, 726 (E.D.La.1974), aff'd in part and rev’d in part on other grounds, 539 F.2d 511 (5th Cir.1976), cert. denied, 431 U.S. 929, 97 S.Ct. 2633, 53 L.Ed.2d 245 (1977). To this end, the Truth In Lending Act requires clear and conspicuous disclosure to the consumer of certain information. “Disclosure” under the Truth In Lending Act is a term of art which refers to the manner in which a creditor must convey the information which Congress deemed basic to an intelligent assessment of a credit transaction. Smith v. U.S. Credit Corp., 801 F.2d 661 (4th Cir.1986) (slip opinion); Doggett v. Ritter Finance Co., 384 F.Supp. 150, 153 (W.D.Va.1974). The finance charge and annual percentage rate involved in a transaction were considered by the Congress to be of such importance that they are required to be disclosed more conspicuously than" }, { "docid": "5319072", "title": "", "text": "374 F.Supp. 318, 319 (N.D.Ga.1973) (lots purchased for investment reasons do not make buyer a consumer); Puckett v. Georgia Homes, Inc., 369 F.Supp. 614, 619 (D.S.C. 1974) (purchase of mobile home to be used as rental unit is not a consumer credit transaction); Sapenter v. Dreyco, Inc., 326 F.Supp. 871, 873 (E.D.La.) aff’d without op., 450 F.2d 941 (5th Cir. 1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1775, 32 L.Ed.2d 120 (1972) (cash from second mortgage on residence to meet payments on investment property is not consumer transaction). In a case where a truck was purchased for personal as well as business use, the TIL disclosures were required to be made. Allen v. City Dodge, Inc., 5 Cons.Cred. Guide (CCH) 198,428 (N.D.Ga. Sept. 8,1975). The situation here presents an even stronger case for requiring disclosure, since it is more likely she would use it primarily for personal, family and household purposes. The purpose of TIL is to provide consumers with meaningful disclosures of credit terms and conditions, and encourage the informed use of credit. 15 U.S.C. § 1601(a). Theoretically TIL permits a consumer to “shop for credit” and thus compensate for a weaker bargaining position compared with business and commercial borrowers. Mrs. Gallegos did not have an ongoing business when she purchased the truck, nor the prospect of establishing one. She was a widow with a fifth grade education, who traded her only car and personal jewelry in on this purchase. Even if we take her testimony in the light most favorable to Stokes, she was a person engaged in a consumer credit transaction of the type intended to be protected by the required TIL disclosures. Ill We now consider the issue of whether Stokes should be found liable for a good faith and unintentional error. This is not a case where the plaintiff suffered no actual harm as a result of improper TIL disclosures. Mrs. Gallegos was left without transportation. She lost the car and jewelry she traded, considered to be worth $350, and had the use of the truck only a little more than one month before" }, { "docid": "5319071", "title": "", "text": "means of transportation. Stokes accepted her jewelry as part of the down payment. Her testimony at trial indicated she bought a truck because she moved often, and it would help transport her family and possessions. The defense also elicited testimony that she intended to use the truck to sell fresh produce, obtained from the Estancia Valley, as a means of making money. But Stokes made an attempt to comply with the TIL disclosures requirements, evidently assuming this was a consumer credit transaction. Had he believed then that the sale was not “primarily for personal, family, household, or agricultural purposes” he would not have attempted to comply. Cases considering whether a transaction is primarily consumer or commercial in nature look to the transaction as a whole and the purpose for which credit was extended. Many involve mortgaging real property or property purchased for rental use. Gerasta v. Hibernia Nat’l Bank, 411 F.Supp. 176, 185 (E.D.La.1975), modified, 575 F.2d 580 (5th Cir. 1978) (second mortgage on future residence is consumer transaction); Adema v. Great N. Dev. Co., 374 F.Supp. 318, 319 (N.D.Ga.1973) (lots purchased for investment reasons do not make buyer a consumer); Puckett v. Georgia Homes, Inc., 369 F.Supp. 614, 619 (D.S.C. 1974) (purchase of mobile home to be used as rental unit is not a consumer credit transaction); Sapenter v. Dreyco, Inc., 326 F.Supp. 871, 873 (E.D.La.) aff’d without op., 450 F.2d 941 (5th Cir. 1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1775, 32 L.Ed.2d 120 (1972) (cash from second mortgage on residence to meet payments on investment property is not consumer transaction). In a case where a truck was purchased for personal as well as business use, the TIL disclosures were required to be made. Allen v. City Dodge, Inc., 5 Cons.Cred. Guide (CCH) 198,428 (N.D.Ga. Sept. 8,1975). The situation here presents an even stronger case for requiring disclosure, since it is more likely she would use it primarily for personal, family and household purposes. The purpose of TIL is to provide consumers with meaningful disclosures of credit terms and conditions, and encourage the informed use of credit." }, { "docid": "9865139", "title": "", "text": "finds that her testimony although the testimony of an interested party, is eminently believable in contrast to the chain of events testified to by others. Moreover, this Court finds that Mr. Ball’s conduct was entirely intentional, premeditated, coercive, and unreasonable, and that Maddock suffered embarrassment and mental anguish as a result. CONCLUSIONS OF LAW Plaintiffs’ claims of Truth-in-Lending violations based on 15 U.S.C. §§ 1639(a), 1640(a); 26 C.F.R. § 226.1 et seq., are federal questions conferring jurisdiction on this Court under 16 U.S.C. § 1640(e), since at all times in question plaintiffs were “customers” under the Act, 12 C.F.R. § 226.2(u); Mourning v. Family Publications Service, Inc., 411 U.S. 356, 98 S.Ct. 1652, 86 L.Ed.2d 818 (1973), defendant was a “creditor,\" 12 C.F.R. § 226.2(s) and the transactions in question were “consumer loans,\" 15 U.S.C, §§ 1602(h), 1608(1); 12 C.F.R. § 226.-2(p)-,3(a); Sapenter v. Dreyco, Inc., 326 F.Supp. 871 (E.D.La.), aff’d, 450 F.2d 941 (5th Cir. 1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1775, 32 L.Ed.2d 120 (1970); Gallegos v. Stokes, 598 F.2d 872, 375 (10th Cir. 1979). Moreover, this Court has jurisdiction over plaintiff Maddock's claim based on the Equal Credit Opportunity Act, 15 U.S.C. § 1691(a)(8), under 15 U.S.C. § 1691e(f). I. TRUTH-IN-LENDING LIABILITY The purpose of the Consumer Credit Protection Act, 15 U.S.C. § 1601 et seq. (“Truth in Lending”), and Regulation “Z” promulgated pursuant to it, 26 C.F.R. § 226.1 et seq., obligates those who extend consumer credit to provide customers with a meaningful, nontechnical disclosure of the terms of the consumer loan transaction. Thus, the civil liability section of the Act, 15 U.S.C. § 1640(a)(2), has been interpreted to provide that one violation, however slight, in a consumer credit transaction, gives rise to civil liability under the Act. As stated by the Fifth Circuit in Grant v. Imperial Motors, Inc., 539 F.2d 506 (5th Cir. 1976): [O]nce the court finds a violation, no matter how technical, it has no discretion with respect to the imposition of liability . unless one of the defenses provided in the Act is applicable to this transaction, the Court" }, { "docid": "5428756", "title": "", "text": "PER CURIAM: This truth-in-lending action fails because the Act specifically exempts from its scope extensions of credit for business or commercial purposes. 15 U.S.C.A. § 1603(1). Although the individual plaintiffs joined in the notes and gave personal security, the purpose of each transaction was to finance a corporation and its business. The district court’s summary judgment for defendant must be affirmed. On December 5, 1975 the First National Bank of DeKalb County made a 90-day, $8,000 loan to a corporation, Ansel Poe & Associates, Inc., requiring that the corporation's principal stockholder, Ansel Poe, also sign the note. On January 19, 1976 an additional loan of $3,000 was made to the corporation, but the bank then required both Mr. and Mrs. Poe to sign the note as guarantors and required that the family home, owned by Mrs. Poe, be pledged as security. On February 12, 1976 an additional $7,000 was borrowed by the corporation for 90 days. The debt was consolidated with the two prior debts. The Poes again signed as guarantors and the house again secured the note. On May 12, 1976 the debt was renewed, the Poes again guaranteed the debt, and the house secured it. On November 11, 1976 this action was filed alleging violations of 15 U.S.C.A. § 1601 et seq. and Regulation Z, 12 C.F.R. § 226.1 et seq. in the bank’s failure to describe the security deeds and make certain disclosures. The bank counterclaimed for payment of the debt. Both parties moved for summary judgment. The district court granted the bank’s motion for summary judgment on grounds that the Act covers only credit extended to natural persons where the money is primarily for personal, family, household, or agricultural purposes. The Truth-in-Lending Act specifically exempts from its scope extensions of credit for business or commercial purposes. 15 U.S.C.A. § 1603(1); 12 C.F.R. § 226.3(a). As to consumer credit transactions, the Act provides that the adjective “consumer” is specifically intended to characterize the transaction as one in which the party to whom credit is extended is a natural person and the money is primarily for personal, family," }, { "docid": "5428758", "title": "", "text": "household, or agricultural purposes. 15 U.S.C.A. § 1602(h). The plaintiffs claim that the Act is applicable in this case because the Poes were required to guarantee the notes in their individual capacities, neither Poe “owned” the business, Mrs. Poe did not own stock in the corporation, and Mrs. Poe was required to secure the notes with her home. They argue therefore the loan was actually made to the Poes. The plaintiffs’ argument fails to recognize the clear meaning of §§ 1602(h) and 1603(1). The courts will look to the purpose of the loan to determine whether it is covered by the Act. Sapenter v. Dreyco, Inc., 326 F.Supp. 871 (E.D.La.), aff’d, 450 F.2d 941 (5th Cir. 1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1775, 32 L.Ed.2d 120 (1972); Tower v. Home Construction Co. of Mobile, Inc., 458 F.Supp. 112, 116-117 (S.D.Ala. 1978). In the instant case, there is no question that the purpose of each transaction was to finance the corporation. The transactions, therefore, were exempted from the Act. In plaintiffs’ argument that the instant transaction was not exempted from the Act, they rely in part on Federal Reserve Board Letter No. 650, CCH—CCG Spec. Rel. Tfr. Binder (Dec. 1, 1972), and the unreported decision of the special master in Allen v. City Dodge, Inc., No. C74427A (N.D.Ga. Sept. 8, 1975). Both of these involve factual situations distinguishable from the instant case. Plaintiffs argue what the law should be when there is a double purpose for obtaining credit, both personal and commercial. We do not have that situation here. Drawing heavily from a comprehensive analysis of the Act, plaintiffs argue that the law should be different than it is. Landers, Scope of Coverage of the Truth-in-Lending Act, Am. Bar Foundation Res. J. 565 (1976). Only Congress has the authority to make it so. Plaintiffs had alleged a violation of Georgia laws, Ch. 57-2, Ga.Code Ann. The district court dismissed the claim and the counterclaim without prejudice, finding no independent basis of federal jurisdiction. The matter was one for the district court’s discretion. United Mine Workers v. Gibbs, 383 U.S." }, { "docid": "18887307", "title": "", "text": "which had been destroyed is not a consumer loan); and Sapenter v. Dreyco, Inc., 326 F.Supp. 871, 873 (E.D.La.), aff'd, 450 F.2d 941 (5th Cir.1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1775, 32 L.Ed.2d 120 (1972) (cash used to make payments on an investment property is not a consumer loan), with Tower v. Moss, 625 F.2d 1161, 1166-67 (5th Cir.1980) (loan of a borrower presently living in apartment for repairs to her intended home is a consumer loan); and Greene v. Gibraltar Mortgage Investment Corp., 488 F.Supp. 177, 178-79 (D.D.C.1980) (loan by a borrower to repair her residence, though designated as made for the purpose of converting the home into a rooming house, is a consumer loan). Even if the 900 Property had been retained by the Debtors to be used as a home for one of their children, a recitation which we credit, we find that the Debtors could not, for that reason, establish that the 900 Property was “owner-occupied” under the terms of § 226.3(a)3 of the Commentary. Therefore, all of the loan proceeds were devoted to what must be determined to be “business purposes” under TILA, and TILA must be deemed not applicable to this transaction. The conclusion that the loan in issue was for a “business purpose” under the TILA does not foreclose a different result under Act 6. In Jungkurth, supra, 74 B.R. at 330-31, we considered, at some length, Act 6’s “business loan” exception to the interest-rate limitations set forth in 41 P.S. § 301(b) in what would otherwise be a “residential mortgage” obligation within the scope of § 301(b). That exception appears in 41 P.S. § 301(f)(v) and excepts “business loans the principal of which is in excess of ten thousand dollars ($10,000)” from the maximum interest rate and other restrictions set forth in § 301. We noted that the applicable Regulations, at 10 PA. CODE § 7.2 (definition of “Business loans”), flesh out definition of “business loans” as follows: Unless the context indicates otherwise, the following definitions and rules of construction apply: Business loans — For the purposes of the act" }, { "docid": "8272511", "title": "", "text": "5. The required credit disclosures must be made before the credit is extended, and may be made by disclosing the information in the contract to be signed by the purchaser. 15 U.S.C.A. § 1638(b); Burgess v. Charlottesville Savings and Loan Association, 477 F.2d 40 (4th Cir. 1973). 6. The form contract utilized by defendant in recording the transaction between the parties complied with the disclosure requirements of the statutes and regulations referred to above, and the disclosures were made at the appropriate time as required by the statute. Thus, with the properly filled in form contract, defendant disclosed to plaintiff all of the credit information required by law. 7. Specifically exempted from the disclosure requirements of the Truth in Lending Act are “credit transactions involving extensions of credit for business or commercial purposes.” 15 U.S.C.A. § 1603(1); see also 12 C.F.R. § 226.3(a). In this connection, the regulations define “consumer credit” as meaning “credit offered or extended to a natural person, in which the money, property, or service which is the subject of the transaction is primarily for personal, family, household, or agricultural purposes. .” 12 C.F.R. § 226.2(k) (emphasis supplied); see also 15 U.S.C.A. § 1602(h). 8. The court therefore further concludes as a matter of law that the transaction here involved was for business purposes and thus was exempt from the Act. The court is guided in this determination by the only two reported cases its research uncovers which deal with an interpretation of the “business or commercial purposes” exception. In Sapenter v. Dreyco, Inc., 326 F. Supp. 871 (E.D.La.), aff’d. 450 F.2d 941 (5th Cir. 1971) (per curiam), cert. denied 406 U.S. 920, 92 S.Ct. 1775, 32 L.Ed.2d 120 (1972), the plaintiffs in a Truth in Lending suit owned two pieces of real estate, one of which was their residence and the other a six-unit apartment building. The credit transaction which plaintiffs complained of as deficient under the Act involved the execution of a mortgage on their residence for the purpose of extending a past-due obligation which they had incurred on the rental property. The defendant moved" }, { "docid": "19309579", "title": "", "text": "since the property in question was rental property at the time of the extension of credit. The District Court disagreed and concluded that this transaction was not one for business or commercial purposes, finding that the plaintiffs’ intention in entering into the transaction was for “repairing and/or improving their intended residence, prior to occupancy.” 411 F.Supp. at 185. The Fifth Circuit affirmed this holding without discussion, 575 F.2d at 583, although it did reverse on other grounds. Chapman, supra, dealt with an entirely different situation. The plaintiff had purchased a 1969 Mercury automobile from the defendant by means of a credit transaction in which the defendant extended credit to the plaintiff for the purchase price of the vehicle. When the plaintiff filed suit alleging that the proper disclosures under the Truth-In-Lending Act had not been made, the defendant filed for summary judgment on the basis of the plaintiff’s deposition testimony that she used the automobile in connection with her business. The District Court found that the plaintiff had purchased the vehicle primarily for her personal use, and concluded that the primary use of the vehicle was the test to use in characterizing the transaction. The Court ruled that a transaction is not exempted when “the credit is given primarily for a person, family, or household use and not just when it is given entirely for a personal, family or household use.” 436 F.Supp. at 61. 4. The defendant cites two cases, Sapenter v. Dreyco, Inc., 326 F.Supp. 871 (E.D.La. 1971), aff’d 450 F.2d 941 (5th Cir. 1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1775, 32 L.Ed.2d 120 (1972), and Puckett v. Georgia Homes, Inc., 369 F.Supp. 614 (D.S.C.1974). The plaintiffs in Sapenter owned two separate pieces of property in New Orleans, their residence at 5822 Baccich Street and a six-unit apartment building at 2408 Chartres Street. To avoid foreclosure on the mortgages on the rental property, the plaintiffs executed a third mortgage on their residence on Baccich Street. The plaintiffs later filed suit to have the third mortgage rescinded under the Truth-In-Lending Act, alleging that they were not afforded" }, { "docid": "5319070", "title": "", "text": "an issue, not appearing in the pleadings, is raised without objection at trial, it is deemed to have been tried by the implied consent of the parties. E. g., United States Fidelity and Guar. Co. v. United States, 389 F.2d 697 (10th Cir. 1968); Kaye v. Smitherman, 225 F.2d 583 (10th Cir.), cert. denied, 350 U.S. 913, 76 S.Ct. 197, 100 L.Ed. 800 (1955). We hold the trial judge did not err when he allowed testimony on the commercial use defense.. II We turn next to whether the trial court was clearly erroneous in deciding that Gallegos’ purchase was not within the commercial use exception to TIL. This is a factual issue to be resolved by the trier of fact. Redhouse v. Quality Ford Sales, Inc., 511 F.2d 230 (10th Cir.), op. on rehearing en banc, 523 F.2d 1 (10th Cir. 1975). We find sufficient evidence in the record to support the trial judge’s finding that the truck$>was primarily for personal use. Mrs. Gallegos traded in her only automobile, and the truck became her sole means of transportation. Stokes accepted her jewelry as part of the down payment. Her testimony at trial indicated she bought a truck because she moved often, and it would help transport her family and possessions. The defense also elicited testimony that she intended to use the truck to sell fresh produce, obtained from the Estancia Valley, as a means of making money. But Stokes made an attempt to comply with the TIL disclosures requirements, evidently assuming this was a consumer credit transaction. Had he believed then that the sale was not “primarily for personal, family, household, or agricultural purposes” he would not have attempted to comply. Cases considering whether a transaction is primarily consumer or commercial in nature look to the transaction as a whole and the purpose for which credit was extended. Many involve mortgaging real property or property purchased for rental use. Gerasta v. Hibernia Nat’l Bank, 411 F.Supp. 176, 185 (E.D.La.1975), modified, 575 F.2d 580 (5th Cir. 1978) (second mortgage on future residence is consumer transaction); Adema v. Great N. Dev. Co.," }, { "docid": "18887305", "title": "", "text": "amount of just over $60,000 went towards liquidation of the Pitcairn mortgage on the 900 Property. The determination of whether a certain transaction is business or consumer credit is addressed in detail in the Official Staff Commentary on Regulation Z Truth in Lending (“the Commentary”), § 226.3(a). Five factors are to be weighed: • The relationship of the borrower’s primary occupation to the acquisition. The more closely related, the more likely it is to be business purpose. • The degree to which the borrower will personally manage the acquisition. The more personal involvement there is, the more likely it is to be business purpose. • The ratio of income from the acquisition to the total income of the borrower. The higher the ratio, the more likely it is to be business purpose. • The size of the transaction. The larger the transaction, the more likely it is to be business purpose. • The borrower’s statement of purpose for the loan. Id., § 226.3(a)2. Even more relevant to the instant factual matrix is the following passage at id., § 226.3(a)3: 3. Non-owner-occupied rental property. Credit extended to acquire, improve, or maintain rental property (regardless of the number of housing units) that is not owner-occupied is deemed to be for business purposes.... The latter passage avoids the necessity for us to engage in an almost evenly balanced weighing process of funds devoted to Brutus’s activities, which are clearly business-related, against those devoted to the 900 Property. See In re Klutzaritz, 46 B.R. 368, 370 (Bankr.E.D.Pa.1985) (loan in which over sixty (60%) percent of its proceeds were used for business purposes was found to be a business loan). This passage makes clear that the expenditure of funds towards the 900 Property, which has never been owner-occupied by the Debtors, must also be considered as an expenditure “for business purposes.” Compare Adema v. Great Northern Development Co., 374 F.Supp. 318, 319 (N.D.Ga.1973) (purchase of lots as an investment is not a consumer loan); Puckett v. Georgia Homes, Inc., 369 F.Supp. 614, 619 (D.S.C.1974) (purchase of mobile home to replace that of tenant of borrower" }, { "docid": "19309580", "title": "", "text": "use, and concluded that the primary use of the vehicle was the test to use in characterizing the transaction. The Court ruled that a transaction is not exempted when “the credit is given primarily for a person, family, or household use and not just when it is given entirely for a personal, family or household use.” 436 F.Supp. at 61. 4. The defendant cites two cases, Sapenter v. Dreyco, Inc., 326 F.Supp. 871 (E.D.La. 1971), aff’d 450 F.2d 941 (5th Cir. 1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1775, 32 L.Ed.2d 120 (1972), and Puckett v. Georgia Homes, Inc., 369 F.Supp. 614 (D.S.C.1974). The plaintiffs in Sapenter owned two separate pieces of property in New Orleans, their residence at 5822 Baccich Street and a six-unit apartment building at 2408 Chartres Street. To avoid foreclosure on the mortgages on the rental property, the plaintiffs executed a third mortgage on their residence on Baccich Street. The plaintiffs later filed suit to have the third mortgage rescinded under the Truth-In-Lending Act, alleging that they were not afforded the appropriate disclosures. The defendant contended, inter alia, that the mortgage was an exempted transaction and that the suit ought to be dismissed. The District Court agreed, ruling that the “extension of credit to the plaintiffs . . . was certainly not for ‘personal, family, household or agricultural purposes,’ ” but rather was for the purpose of extending “a past due obligation which plaintiffs had incurred on rental property which they purchased and owned as an investment.” 326 F.Supp. at 873. The Fifth Circuit summarily affirmed the decision without a written opinion, Sa-penter v. Dreyco, Inc., 450 F.2d 941 (5th Cir. 1971). In Puckett, the plaintiff owned a mobile home that he was renting to a tenant. This mobile home was destroyed by a fire so the plaintiff negotiated for the purchase of a new one with the defendant. The plaintiff’s testimony revealed that although he sought the new mobile home as a replacement for his tenant, he intended eventually to reside in the replacement home himself. Although the plaintiff did not aver the time" }, { "docid": "18887306", "title": "", "text": "at id., § 226.3(a)3: 3. Non-owner-occupied rental property. Credit extended to acquire, improve, or maintain rental property (regardless of the number of housing units) that is not owner-occupied is deemed to be for business purposes.... The latter passage avoids the necessity for us to engage in an almost evenly balanced weighing process of funds devoted to Brutus’s activities, which are clearly business-related, against those devoted to the 900 Property. See In re Klutzaritz, 46 B.R. 368, 370 (Bankr.E.D.Pa.1985) (loan in which over sixty (60%) percent of its proceeds were used for business purposes was found to be a business loan). This passage makes clear that the expenditure of funds towards the 900 Property, which has never been owner-occupied by the Debtors, must also be considered as an expenditure “for business purposes.” Compare Adema v. Great Northern Development Co., 374 F.Supp. 318, 319 (N.D.Ga.1973) (purchase of lots as an investment is not a consumer loan); Puckett v. Georgia Homes, Inc., 369 F.Supp. 614, 619 (D.S.C.1974) (purchase of mobile home to replace that of tenant of borrower which had been destroyed is not a consumer loan); and Sapenter v. Dreyco, Inc., 326 F.Supp. 871, 873 (E.D.La.), aff'd, 450 F.2d 941 (5th Cir.1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1775, 32 L.Ed.2d 120 (1972) (cash used to make payments on an investment property is not a consumer loan), with Tower v. Moss, 625 F.2d 1161, 1166-67 (5th Cir.1980) (loan of a borrower presently living in apartment for repairs to her intended home is a consumer loan); and Greene v. Gibraltar Mortgage Investment Corp., 488 F.Supp. 177, 178-79 (D.D.C.1980) (loan by a borrower to repair her residence, though designated as made for the purpose of converting the home into a rooming house, is a consumer loan). Even if the 900 Property had been retained by the Debtors to be used as a home for one of their children, a recitation which we credit, we find that the Debtors could not, for that reason, establish that the 900 Property was “owner-occupied” under the terms of § 226.3(a)3 of the Commentary. Therefore, all of the" } ]

[ { "docid": "23374620", "title": "", "text": "25 L.Ed. 807 (1879) (“the means of knowledge are the same thing in effect as knowledge itself.”) By plaintiffs’ own admission, it was reasonably possible to discover that the statements made by Ford on or after October 1977 were in fact false. But plaintiffs failed to investigate further and therefore did not exercise the due diligence necessary to toll the limitations period. Further, it must be noted that in order to toll the limitations period, plaintiffs must have pled with sufficient particularity the facts and circumstances that demonstrate that there was, in fact, due diligence exercised by plaintiffs to discover that defendant’s statements were false. See, e.g., Wood v. Carpenter, 101 U.S. at 143. Therefore, plaintiffs have neither properly alleged nor exercised due diligence so as to toll the limitations period. Accordingly, the Court finds that those plaintiffs whose cars were purchased prior to August 21, 1977, and have alleged incidents or complained to Ford or its dealers on or after October 1977, are barred by the statute of limitations to assert warranty claims because they failed to exercise due diligence. Therefore, forty-three plaintiffs’ warranty claims must be dismissed and may not be counted toward meeting the 100-named plaintiff requirement under Magnuson-Moss. Ford also seeks to dismiss those who were added to the first amended complaint in April 1982, and who purchased their vehicles more than four years prior to that date. It argues that, based on the Court’s prior decisions, it is evident the Court did not have jurisdiction over the case, and therefore, the filing of the complaint did not toll the statute of limitations. In opposition, plaintiffs cite to the reasoning outlined in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). That case provides that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Id. at 554, 94 S.Ct. at 766 (footnote omitted) quoted in, Crown, Cork & Seal Co. v." } ]

[ { "docid": "1998944", "title": "", "text": "supposed to prevent oil from leaking into the engine’s combustion chamber. Plaintiff’s amended complaint specifically alleged that “due to the interaction of their inferior polyacrylic elas-tomer material with the relatively high heat conditions uniformly generated by the Rabbit engines, the seals tended to gradually and prematurely harden, crack, and deteriorate, typically at mileages of 20,000 to 40,000.” Plaintiffs sought to recover monetary losses due to excessive oil consumption, engine “seizures” and the diminished resale value of their Rabbits. Plaintiffs also sought recovery under various pendent state law unfair trade practice claims on the grounds that Volkswagen knew the valve stem seals were defective but concealed this knowledge from purchasers. In February of 1987, the district court issued a Revised Class Action Order certifying, with exceptions not relevant here, three classes of plaintiffs: (1) 1976 to 1979 model Rabbit owners who incurred unreim-bursed expenses for excessive oil consumption or engine failure between 10,000 and 80,000 miles; (2) persons who purchased 1976 to 1979 model Rabbits new or second hand prior to October 1979 and who sold their vehicles within six years of the vehicle’s original retail purchase; and (3) Rabbit owners with pendent state law deceptive or unfair trade practice claims. After more than two years of discovery and motions practice, the ease went to trial on June 1,1987. On June 18, the jury retired to consider the evidence and to make findings on the nine issues submitted by way of special verdict interrogatories. (The text of those interrogatories is attached as Appendix A.) The first interrogatory (“Issue # 1”) asked, “Were the polyacrylate valve stem seals installed by defendants in the 1976-1979 gasoline Rabbit automobiles defectively designed?” The other interrogatories were phrased such that if this first question was answered negatively the jury was not to consider the remaining issues. On June 19, the jury returned the special verdict having answered the first question negatively and judgment was subsequently entered for Volkswagen. II. A. Plaintiffs vigorously challenge the form and content of the special verdict interrogatories submitted to the jury. The special verdict required the jury to find that the" }, { "docid": "23642071", "title": "", "text": "specified. The complaint, as later amended, alleged that the damages claimed resulted from a single defective part, the valve stem seal, which is supposed to prevent oil from leaking into the engine’s combustion chamber. The seal allegedly was made of an inferior material that caused it to harden and crack prematurely, which in turn led to oil leakage and the other types of damage claimed. Federal jurisdiction was invoked under the Magnuson-Moss Act. 15 U.S.C. §§ 2301-2312 (1982). This Act applies to all sales of consumer products in which a written warranty is given. Section 2310(d)(1) of the Act provides that “a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under [the Act], or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief....” 15 U.S.C. § 2310(d)(1). Federal and state courts have concurrent jurisdiction over Magnuson-Moss actions, id. § 2310(d)(1)(A), (B), but no claim is cognizable by a federal court if: (i) the amount in controversy of any individual claim is less than $25; (ii) the total amount in controversy is less than $50,000; or (iii) the action is brought as a class action by fewer than- 100 named plaintiffs. 15 U.S.C. § 2310(d)(3)(A), (B), (C). VWOA moved to dismiss the class action claims on the ground that the 100 named plaintiffs requirement was not satisfied and that the court thus lacked subject matter jurisdiction. It also moved to sever, and then dismiss for lack of subject matter jurisdiction, the individual damage claims on the ground that they did not satisfy the joinder requirements of Fed.R.Civ.P. 20(a) and thus could not be aggregated toward the $50,000 requirement. VWOA sought discovery in connection with its motion to dismiss the class action for failing to comply with the 100 named plaintiffs requirement. The plaintiffs op posed discovery on the ground that it was a “merits inquiry” that was improper in determining a subject matter jurisdiction question. Following Walsh v. Ford Motor Co., 588 F.Supp. 1513, 1519-21 (D.D.C. 1984), the district" }, { "docid": "23642070", "title": "", "text": "subject to state law privity rules; (iii) the express warranties in this case do not cover automobile defects manifesting themselves after expiration of the time/mileage limits of the relevant warranties; (iv) joint owners of automobiles may be counted only once toward satisfaction of the 100 named plaintiffs requirement; and (v) joinder of the remaining plaintiffs should have been allowed under Rule 20(a). We affirm in part, reverse in part, and remand. BACKGROUND The 119 plaintiffs are owners of Volkswagen Rabbits, model years 1975-79. They brought a class action lawsuit against the manufacturer, Volkswagen of America (“VWOA”) alleging, inter alia, breach of the express warranty given in connection with the sale of each car and breach of the implied warranty of merchantability. Their claim, as originally stated, was that the oil system in the 1975-79 Rabbits was defective, causing excessive oil consumption, engine damage and failure, and decreased resale value of the cars. Not all plaintiffs claim to have suffered each form of damage, but all claim to have suffered at least one of the varieties specified. The complaint, as later amended, alleged that the damages claimed resulted from a single defective part, the valve stem seal, which is supposed to prevent oil from leaking into the engine’s combustion chamber. The seal allegedly was made of an inferior material that caused it to harden and crack prematurely, which in turn led to oil leakage and the other types of damage claimed. Federal jurisdiction was invoked under the Magnuson-Moss Act. 15 U.S.C. §§ 2301-2312 (1982). This Act applies to all sales of consumer products in which a written warranty is given. Section 2310(d)(1) of the Act provides that “a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under [the Act], or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief....” 15 U.S.C. § 2310(d)(1). Federal and state courts have concurrent jurisdiction over Magnuson-Moss actions, id. § 2310(d)(1)(A), (B), but no claim is cognizable by a federal court if: (i) the" }, { "docid": "23642069", "title": "", "text": "WINTER, Circuit Judge: This litigation originated as a class action suit brought under the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-2312 (1982) (“Magnuson-Moss,” “the Act”), involving alleged defects in the oil systems of Volkswagen Rabbits. The district court dismissed the class action for lack of subject matter jurisdiction. It concluded that only 75 of the 119 named plaintiffs had viable claims for relief, and thus that the Act’s unique jurisdictional provision requiring a minimum of 100 named plaintiffs to bring a class action in a federal court had not been satisfied. The remaining individual claims were dismissed on the ground that they did not meet the joinder requirements of Rule 20(a), Fed.R.Civ.P., and thus could not be aggregated to satisfy another of the Act’s jurisdictional provisions requiring a total amount in controversy of at least $50,000. Abraham v. Volkswagen of America, Inc., 103 F.R.D. 358 (W.D.N.Y.1984). We hold that: (i) the district court used an improper procedure in resolving the 100 named plaintiffs jurisdictional question; (ii) implied warranty claims brought under the Magnuson-Moss Act are subject to state law privity rules; (iii) the express warranties in this case do not cover automobile defects manifesting themselves after expiration of the time/mileage limits of the relevant warranties; (iv) joint owners of automobiles may be counted only once toward satisfaction of the 100 named plaintiffs requirement; and (v) joinder of the remaining plaintiffs should have been allowed under Rule 20(a). We affirm in part, reverse in part, and remand. BACKGROUND The 119 plaintiffs are owners of Volkswagen Rabbits, model years 1975-79. They brought a class action lawsuit against the manufacturer, Volkswagen of America (“VWOA”) alleging, inter alia, breach of the express warranty given in connection with the sale of each car and breach of the implied warranty of merchantability. Their claim, as originally stated, was that the oil system in the 1975-79 Rabbits was defective, causing excessive oil consumption, engine damage and failure, and decreased resale value of the cars. Not all plaintiffs claim to have suffered each form of damage, but all claim to have suffered at least one of the varieties" }, { "docid": "17344250", "title": "", "text": "problems alleged were not clearly attributable to the same defect, then the plaintiffs had not met the “same transaction or occurrence” test of Rule 20 and joinder was improper. On appeal, the Fourth Circuit affirmed the ruling that Rule 20 was not superseded by the Magnuson-Moss Act, and further held that the district court did not abuse its discretion in not allowing joinder of the individual claims under Rule 20. Id. at 1032. In the amended complaint in the present case, the plaintiffs allege that the “[djefendant’s materials and workmanships cause the Rabbit engines to prematurely wear, burn oil excessively, need repairs prematurely, operate without an effective oil warning light, have a high risk of catastrophic engine failure, and often self-destruct” (paragraph 21). The plaintiffs further allege “(a) among the defects are the oil pan, valve stem seals, the valve stem guides, and the oil warning light system” (paragraph 22). I must conclude that the remaining plaintiffs in the present case present a similar situation as found in Saval. Here, as there, although all the claims relate to one specific system of the car (here the oil system), the alleged defects occurred on some cars and not others. Additionally, the interrogatories indicate that for some plaintiffs repairs were needed in the first 20.000 miles, of operation while for many others, repairs were not made until after 80.000 miles and several years of driving. This disparity in the timing of problems stemming from the same group of alleged defects indicates that the driving and maintenance histories of each individual vehicle are vitally important to proving or disproving each individual claim. When this factor is considered together with the disparity and the time of purchase of the vehicles and the different model years involved, this court must conclude that plaintiffs have not satisfied the “same transaction and occurrence” test necessary to permit individual claims to be joined under F.R.Civ.P. 20. See Desert Empire Bank v. Insurance Co. of North America, 623 F.2d 1371 (9th Cir. 1980). IV. CONCLUSION In summary, after a thorough review of the information found in the answers to" }, { "docid": "23261646", "title": "", "text": "and without the brake defect. Even adding consequential damages to a conjectural estimate of value here fails to establish anything near $75,000. Accordingly, the breach of warranty count fails to provide federal court jurisdiction. VI. The Magnuson-Moss Warranty Improvement Act The Magnuson-Moss Act provides that a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract may bring suit for damages and other legal and equitable relief. 15 U.S.C. § 2310(d)(1) (2003). Suit may be filed in state or federal court. Id. However, federal jurisdiction for a Magnuson-Moss Act claim does not exist unless the amount in controversy exceeds $50,000, and, if the suit is brought as a class action, the number of named plaintiffs is at least 100. 15 U.S.C. § 2310(d)(3). In Voelker v. Porsche Cars North America, Inc., 348 F.3d 639, 643 (7th Cir.2003), an automobile warranty case, the Court of Appeals said that the party asserting federal jurisdiction must allege the cost of the replacement vehicle, minus both the present value of the allegedly defective vehicle and the value that the plaintiff received from the allegedly defective vehicle. The facts in that Magnuson-Moss case differ from those present here, but the requirements of allowance for usage and establishing the difference in value, rather than simply the purchase price are the same. Treble damages may not be assessed in a Magnuson-Moss count. Nor may attorneys fees be considered in calculating the jurisdictional amount. Súber, 104 F.3d at 588 n. 12. It is clear that the amount recoverable under the claim here does not exceed $50,000 and this case cannot be maintained in the federal courts on an independent jurisdictional basis. There is no need to address supplemental jurisdiction at this point. By way of equitable relief, plaintiff asks that members of the putative class be notified and warned about the brake system defect. Because we must look to the jurisdictional status of the named plaintiff, it is obvious that injunctive relief is not appropriate. VII." }, { "docid": "23642077", "title": "", "text": "problems made the driving and maintenance history of each car vitally important to proof of each individual claim, 103 F.R.D. at 364,, and thus held that the 75 plaintiffs had not satisfied the “same transaction or occurrence” test of Rule 20. It then dismissed all of the remaining individual claims. Plaintiffs moved for reconsideration on the joinder issue, and for permission to amend the complaint to clarify the nature of the defect alleged. Permission to amend was granted. The substituted paragraphs of the complaint are set out in the margin. They were designed to make clear that the same defect — the faulty valve stem seal— was alleged to be at fault in every case, and that the differences noted by the court, such as mileage disparities, went only to the amount of damage and not to the basis of liability. The district court was unpersuaded, however, and on June 25, 1985, again dismissed the action “for substantially the reasons set forth” in its earlier decision. On appeal, the plaintiffs claim that the district court erred (i) in scrutinizing the merits of individual claims before ruling on the 100 named plaintiffs jurisdictional issue; (ii) in holding that state law privity rules apply to implied warranty claims under Magnuson-Moss; (iii) in holding that no valid written warranty claim can be made for damage occurring outside the applicable time/mileage limits of the warranty; (iv) in holding that joint owners of automobiles may only be counted as one plaintiff for jurisdictional purposes; and (v) in holding that the 75 remaining plaintiffs did not meet the Rule 20 requirement for joinder. For reasons stated infra, we address all these issues. DISCUSSION 1. The 100 Named Plaintiffs Jurisdictional Requirement The plaintiffs contend that the district court should not have allowed discovery and scrutinized the merits of individual claims in deciding whether the 100 named plaintiffs jurisdictional threshold was met. The usual rule is that “the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction.” Bell v. Hood, 327 U.S. 678," }, { "docid": "17344237", "title": "", "text": "INTRODUCTION TELESCA, District Judge. In this action, plaintiffs allege two claims under the Magnuson-Moss Act, 15 U.S.C. Section 2301 et. seq. and several pendent state law claims involving alleged defects in Volkswagen Rabbits manufactured by-defendant between 1975 and 1979. The alleged defects center upon problems with the vehicles’ lubrication systems which allegedly caused excessive oil consumption and a variety of other difficulties.- Because of the specific jurisdictional requirements of the Magnuson-Moss Act, defendant was permitted to conduct limited discovery for the purpose of challenging plaintiffs’ factual allegations in the complaint concerning subject matter jurisdiction. Subsequent to this limited discovery, defendant now makes several motions: (1) to dismiss the class action claims for failure to meet the jurisdictional requirements of the Magnuson-Moss Act; (2) to sever the individual claims for misjoinder under F.R.Civ.P. 20, and thereafter to dismiss the complaint for failure to meet the jurisdictional requirements of the Magnuson-Moss Act and, (3) in the alternative, to stay or dismiss the action pending a disposition of a prior New York State action commenced by four of the named plaintiffs purportedly on behalf of a class of all persons similarly situated. DISCUSSION I. The first issue which must be addressed is the scope of inquiry permitted on these motions. Plaintiffs argue vigorously that they have adequately pleaded colorable claims under the Magnuson-Moss Act. They argue, that since subject matter jurisdiction has been validly pleaded, no further inquiry into the .merits of their claims is permissible at this stage of the proceedings. In support of this position, plaintiffs rely upon Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946) which held, they claim, that it is improper for a federal district court to look into the merits of the claims alleged in the complaint on a motion to dismiss for lack of subject matter jurisdiction. Id. at 682, 66 S.Ct. at 776. Before addressing the applicability of the holding in Bell v. Hood in the instant case, a review of the Magnuson-Moss Act jurisdictional requirements is appropriate. The Consumer Product Warranty Act, 15 U.S.C. Section 2301, et seq., commonly" }, { "docid": "23642102", "title": "", "text": "extent of the product defect is the controlling consideration. It is the number of damaged products, not the number of persons claiming damage, that determines whether a class action is “insignificant” or substantial for purposes of Magnuson-Moss. Thus, joint owners should be counted only once toward the 100 named plaintiffs requirement. This holding does not mean that claims asserted by joint owners must be dis missed, but merely that they may not be counted more than once for class action jurisdictional purposes. See Walsh, 588 F.Supp. at 1521. 5. Joinder of Remaining Plaintiffs The district court declined to permit joinder of the 75 plaintiffs remaining after others had been excluded as not having valid implied or express warranty claims. We believe the refusal to permit joinder was an abuse of discretion. Rule 20(a) requires that the claims for relief asserted by each plaintiff must lead to or arise'out of the same transaction or occurrence or series of transactions or occurrences, and that some question of law or fact common to all parties will arise in the litigation. The district court held that because some of the defects alleged did not occur on all cars and the mileage at which repairs were required varied greatly, the plaintiffs had not satisfied the same transaction or occurrence requirement. We believe that the amendment to the complaint, see Note 3, supra, alleging the faulty valve stem seal as a single defect that caused the various damages, satisfied the same transaction or occurrence (or series thereof) requirement. All plaintiffs now allege as the basis for their claims the purchase of a Volkswagen Rabbit with a valve stem seal made of defective material that will cause it to harden and break over time. We think that amply satisfies the requirement of a series of logically related transactions. See 7 C. Wright and A. Miller, Federal Practice and Procedure § 1653 (1972). To hold otherwise would largely read the $50,000 aggregation provision for federal jurisdiction out of the Act. Because it is indisputable that the remaining plaintiffs raise common questions of law and fact, the second requirement" }, { "docid": "14535910", "title": "", "text": "throughout the United States who purchased or leased 1998 or 1999 Mercedes-Benz vehicles equipped with the FSS. In January 2002, we dismissed Plaintiffs newly added Magnuson-Moss Warranty Act claim without prejudice because we lacked subject matter jurisdiction pursuant to 15 U.S.C. § 2310(d)(3)(C). See O’Keefe v. Mercedes-Benz USA, LLC, No. 01-CV-2902, 2002 WL 377122 (E.D.Pa. Jan.31, 2002). Section 2310(d)(3)(C) prohibits class actions under Magnuson-Moss in federal court when there are less than 100 named plaintiffs. Id. at *4. Plaintiff filed a Second Amended Class Action Complaint on July 23, 2002. As the case stands now, Plaintiffs complaint contains four counts against MBUSA: (1) violation of various state consumer protection statutes; (2) breach of express warranty; (3) breach of implied warranty; and (4) unjust enrichment. The complaint alleges that MBUSA made intentional misrepresentations as part of a fraudulent scheme. Plaintiff seeks actual damages, reasonable attorney’s fees, punitive or treble damages and any other relief that the Court deems appropriate. More importantly, the Second Amended Complaint altered the proposed class to include “[a]ll persons throughout the United States (including Puerto Rico and U.S. territories) who own or lease a model year 1998, 1999, 2000 or 2001 (first purchased or leased before March 31, 2001) Mercedes-Benz vehicle equipped with the FSS.” See Pl.’s Second Amended Class Action Complaint at 19 filed on July 23, 2002. To date, we have not ruled on our subject matter jurisdiction over the newly proposed class. The Second Amended Class Action Complaint alleges that: [tjhrough a common and uniform course of • conduct utilizing common documents, defendant manufactured, supplied, promoted, sold and leased vehicles when it knew or should have known that its vehicles equipped with the FSS would experience premature and/or abnormal rod bearings wear, excessive oil consumption, sludge buildup, and other internal defects, if the FSS oil service intervals recommended by defendant utilizing Mercedes-Benz approved conventional motor oils were strictly followed by the owners and lessees of the vehicles. Second Am. Compl. at 112. The FSS monitors the car’s driving conditions. It then determines when the vehicle requires an oil change. A dashboard panel indicator lights" }, { "docid": "23374621", "title": "", "text": "they failed to exercise due diligence. Therefore, forty-three plaintiffs’ warranty claims must be dismissed and may not be counted toward meeting the 100-named plaintiff requirement under Magnuson-Moss. Ford also seeks to dismiss those who were added to the first amended complaint in April 1982, and who purchased their vehicles more than four years prior to that date. It argues that, based on the Court’s prior decisions, it is evident the Court did not have jurisdiction over the case, and therefore, the filing of the complaint did not toll the statute of limitations. In opposition, plaintiffs cite to the reasoning outlined in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). That case provides that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Id. at 554, 94 S.Ct. at 766 (footnote omitted) quoted in, Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 2395, 76 L.Ed.2d 628 (1983). The Court concludes that when plaintiffs filed this complaint in August 1981, it effectively suspended the running of the statute of limitations for subsequent plaintiffs. Therefore, those twenty-two plaintiffs which defendant seeks to have dismissed on statute of limitations grounds must be considered as part of this action and further must be counted toward meeting the 100-named plaintiff requirement. C. Implied Warranty Claim The implied warranty claims in Count I of the complaint state in pertinent part that “Ford is in violation of the Act, 15 U.S.C. § 2310(d)(1), for breach of implied warranty of merchantable quality, for which Ford is liable to ... plaintiffs____” Plaintiffs’ Complaint at H 37. In addressing this claim, Ford argues that numerous plaintiffs must be dismissed and cannot be counted towards meeting the 100-named plaintiff requirement because they fail to state a claim for relief. Specifically, it argues that certain plaintiffs with implied warranty claims, when examined under their own State law, cannot assert a claim for" }, { "docid": "23374611", "title": "", "text": "to limit the numbers and kinds of cases brought in Federal court, it must look closely at each plaintiff to determine whether he states a claim for relief before he may be counted towards meeting the 100-named plaintiff requirement. Without making that inquiry, the jurisdictional prerequisites established by Con gress could be easily circumvented by merely joining 100 individuals who may or may not have a valid claim for relief. The 100-named plaintiff requirement is a “substantial barrier,” In Re General Motors Corp. Engine Interchange Litigation, 594 F.2d 1106, 1114 n. 2 (7th Cir.), cert. denied, 444 U.S. 870, 100 S.Ct. 146, 62 L.Ed.2d 95 (1979), and in order to give it meaningful effect, at least 100-named plaintiffs must allege facts in the complaint sufficient to demonstrate an individual cause of action. Therefore, the Court will examine the complaint closely and determine whether plaintiffs have satisfied the jurisdictional requirements by assembling 100 or more individuals who allege claims sufficient to constitute an individual cause of action under the Act. Ill A. Duplicative Plaintiffs In its December 22, 1982 memorandum opinion, the Court indicated that: counting the claims of joint owners of a single consumer product twice, as plaintiffs do, is improper for purposes of satisfying the 100 named plaintiff requirement. Permitting 50 joint owners of consumer products to bring a class action under the Magnuson-Moss Act would dilute significantly the plain intent of the 100 plaintiff rule. Garbo v. Ford Motor Co., 1983-2 Trade Cas. ¶ 65,701 (1982). That reasoning is still sound. If the Court were to allow numerous plaintiffs to assert identical or related claims on a single Ford vehicle, the “substantial burden” of meeting the 100-named plaintiff requirement would be easily circumvented. Therefore, the Court will exclude, for jurisdictional counting purposes only, those duplicative and triplicative plaintiffs whose claims are based on the same vehicle. There are 210 total plaintiffs in this action which involve 157 vehicles. In subtracting fifty-three duplicative or triplicative plaintiffs from the total number of individuals who are listed in the complaint, 157 remain to be counted as plaintiffs for Magnuson-Moss jurisdictional purposes." }, { "docid": "1998957", "title": "", "text": "answered “Yes,” was there any widely available information from which the members of plaintiffs’ class should have learned of the defectively designed valve stem seals in the gasoline Rabbit automobiles prior to: (a)February 21, 1979? ANSWER: (b)February 21, 1980? ANSWER: (c)February 21, 1981? ANSWER: 8.If issues one and two are answered “Yes,” did defendants know when they sold the gasoline Rabbits that the defects in the valve stem seals were not likely to be manifested within the twelve months or 20,000-mile limit of defendants’ limited Warranty? ANSWER: _ 9.If issues one and two are answered “Yes,” did defendants act in reckless disregard of the rights of plaintiffs and their class? ANSWER: . We note as significant the fact that the third interrogatory contained in plaintiffs' \"Proposed Jury Instructions,” required the jury to determine whether the valve stem seals were defective. Thus, even if the court had adopted plaintiffs’ second set of proposed jury issues rather than their first set, plaintiffs would still have been required to prove that the valve stem seals were defective in order to recover on their claim for breach of implied warranty. . This circuit recently ruled that the Magnuson-Moss Warranty Act will not support an implied breach of warranty action against an automobile manufacturer premised upon claims of diminished resale value in the absence of allegations that the plaintiffs vehicle actually suffered from whatever defect produced the drop in resale market value. In Carlson v. General Motors Corp., 883 F.2d 287 (4th Cir.1989), a panel of this court upheld the dismissal of actions by plaintiff class members who alleged damages based solely on the diminished resale value of their diesel equipped General Motors cars. The court reasoned that the concept of \"merchantability” in UCC § 2-314 “does not encompass consumer expectations that a product will hold its value.” At 298. This precedent would clearly require affirmance of the evidentiary ruling here contested but for the fact that many of the plaintiffs who alleged damages due to the diminished resale value of their Rabbits also allegedly suffered from excessive oil consumption and oil system failures." }, { "docid": "23642105", "title": "", "text": "make such a notification if they choose. Thereafter, proceedings should proceed in a manner consistent with this opinion. Affirmed in part, reversed in part and remanded. . Inexpensive products are excluded from many of the statute’s provisions. See 15 U.S.C. §§ 2302(e), 2303(d) (limiting applicability to products costing more than, respectively, $5.00 and $10.00). . The pairs of persons named in the complaint were all joint titleholders, not merely people who happened to use the same automobile. Both can assert a claim for damage. The district court’s ruling did not dismiss the multiple plaintiffs claiming damage to the same car, however, but merely refused to count them more than once for jurisdictional purposes. . The amendment substituted, under the heading \"(DEFECT);” the following paragraphs: 21. The material used in valve stem seals of the Rabbits was defective and unfit for its ordinary purpose. 22. Under the Rabbits’ ordinary operating conditions, these seals gradually and prematurely hardened and cracked, allowing excessive amounts of oil to flow into the combustion chamber and burn. 23. As a result, the Rabbits consumed excessive oil. . This section provides: The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. . This section provides: The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. . Fewer than 100 named plaintiffs may not initiate a class action simply by promising to add more named plaintiffs at a later date. See Lieb v. American Motors Corp., 538 F.Supp. 127, 132 (S.D.N.Y.1982); Watts v. Volkswagen Artiengesellschaft, 488 F.Supp., 1233, 1236 (W.D.Ark.1980). . Many of the 100 named plaintiffs will have significance only for jurisdictional purposes, since all of them need not serve as class representatives in the conduct of the litigation. The courts that have certified Magnuson-Moss class actions generally have allowed only a few of the named plaintiffs" }, { "docid": "23642078", "title": "", "text": "erred (i) in scrutinizing the merits of individual claims before ruling on the 100 named plaintiffs jurisdictional issue; (ii) in holding that state law privity rules apply to implied warranty claims under Magnuson-Moss; (iii) in holding that no valid written warranty claim can be made for damage occurring outside the applicable time/mileage limits of the warranty; (iv) in holding that joint owners of automobiles may only be counted as one plaintiff for jurisdictional purposes; and (v) in holding that the 75 remaining plaintiffs did not meet the Rule 20 requirement for joinder. For reasons stated infra, we address all these issues. DISCUSSION 1. The 100 Named Plaintiffs Jurisdictional Requirement The plaintiffs contend that the district court should not have allowed discovery and scrutinized the merits of individual claims in deciding whether the 100 named plaintiffs jurisdictional threshold was met. The usual rule is that “the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction.” Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). In Bell, plaintiffs sued FBI agents alleging that the agents had violated their fourth and fifth amendment rights, and seeking to recover damages suffered as a result of those violations. The Supreme Court held that a complaint may not be dismissed for lack of jurisdiction because it fails to state a cause of action on which the plaintiff can recover. Id. Plaintiffs in the present case thus argue that the district court violated the rule established in Bell by assessing the legal validity of the claims of the named plaintiffs on the merits before holding that it lacked jurisdiction over the case. VWOA contends, however, that this rule does not apply when federal jurisdiction is invoked under a statute with special jurisdictional requirements, such as Magnuson-Moss, rather than under 28 U.S.C. § 1331, which establishes general federal question jurisdiction. VWOA claims that a “merits inquiry” is permissible before asserting subject matter jurisdiction because the purpose of the Magnuson-Moss jurisdictional requirements is to limit plaintiffs’ access to" }, { "docid": "17344251", "title": "", "text": "claims relate to one specific system of the car (here the oil system), the alleged defects occurred on some cars and not others. Additionally, the interrogatories indicate that for some plaintiffs repairs were needed in the first 20.000 miles, of operation while for many others, repairs were not made until after 80.000 miles and several years of driving. This disparity in the timing of problems stemming from the same group of alleged defects indicates that the driving and maintenance histories of each individual vehicle are vitally important to proving or disproving each individual claim. When this factor is considered together with the disparity and the time of purchase of the vehicles and the different model years involved, this court must conclude that plaintiffs have not satisfied the “same transaction and occurrence” test necessary to permit individual claims to be joined under F.R.Civ.P. 20. See Desert Empire Bank v. Insurance Co. of North America, 623 F.2d 1371 (9th Cir. 1980). IV. CONCLUSION In summary, after a thorough review of the information found in the answers to interrogatories filed by the individual plaintiffs, this court finds that there are not 100 named plaintiffs who possess a valid claim under the Magnuson-Moss Act and therefore, no class action can be maintained. See 15 U.S.C. Section 2310(d)(3)(C). Further, the named plaintiffs who do possess valid claims, do not meet the tests for permissive joinder under F.R.Civ.P. 20, and thus, the aggregate $50,000 jurisdictional requirement of the Magnuson-Moss Act is not satisfied by any individual plaintiff proceeding on his own. 15 U.S.C. Section 2310(d)(3)(B). Accordingly, the case is dismissed for lack of subject matter jurisdiction pursuant to F.R.Civ.P. 12(b)(1). ALL OF THE ABOVE IS SO ORDERED. APPENDIX A (1) Arthur Balmes, purchased car in Illinois 12/75, replaced engine after 43,000 miles. (2) C. & E. Birnes, purchased car in New York on 8/18/78, replaced engine after 16,-120 miles. (3) Bryan Brames, purchased 1975 car used in New York in May, 1979, replaced engine in August of 1979. (4) Richard and Sigrid Bruns, purchased 1978 Rabbit in New York on 11/11/77; repair made in 1981. (5)" }, { "docid": "17344249", "title": "", "text": "100 named plaintiffs as is ■ required under 15 U.S.C. Section 2310(d)(3)(C), to bring a class action. III. What remains is to determine whether the 75 (or fewer) remaining plaintiffs have met the requirements of 15 U.S.C. Section 2310(d)(3)(A), (B). With respect to the requirements of subdivision (A), most, if not all, of the remaining 75 have alleged damages in excess of $25.00. The requirement of subdivision (B) would also seem to be met since the combined total of the claims of the remaining 75 plaintiffs exceeds the $50,000 minimum. The issue presented, however, is' whether these plaintiffs can properly aggregate their claims under F.R.Civ.P. 20. In Saval v. B.L. Ltd., 710 F.2d 1027 (4th Cir.1983), the plaintiffs brought suit under the Magnuson-Moss Act alleging defects in the cooling system of their Jaguar automobiles. The trial court rejected the plaintiffs’ argument that the Magnuson-Moss Act supersedes the requirements of F.R.Civ.P. 20 for permissive joinder. The court went on to hold that because the four automobiles in question had different maintenance and driving histories, and the problems alleged were not clearly attributable to the same defect, then the plaintiffs had not met the “same transaction or occurrence” test of Rule 20 and joinder was improper. On appeal, the Fourth Circuit affirmed the ruling that Rule 20 was not superseded by the Magnuson-Moss Act, and further held that the district court did not abuse its discretion in not allowing joinder of the individual claims under Rule 20. Id. at 1032. In the amended complaint in the present case, the plaintiffs allege that the “[djefendant’s materials and workmanships cause the Rabbit engines to prematurely wear, burn oil excessively, need repairs prematurely, operate without an effective oil warning light, have a high risk of catastrophic engine failure, and often self-destruct” (paragraph 21). The plaintiffs further allege “(a) among the defects are the oil pan, valve stem seals, the valve stem guides, and the oil warning light system” (paragraph 22). I must conclude that the remaining plaintiffs in the present case present a similar situation as found in Saval. Here, as there, although all the" }, { "docid": "23642075", "title": "", "text": "was a compilation of the named plaintiffs who possessed no valid claim. The court read the Act as requiring 100 named plaintiffs with either a valid express or implied warranty claim. 103 F.R.D. at 361 (citing Walsh, 588 F.Supp. at 1538). This holding is not challenged on appeal. The named plaintiff count was reduced from 119 to 106 after subtraction of 13 joint owners. Fifty-nine plaintiffs were also found to have invalid express warranty claims. Of these 59, 31 were not in privity with VWOA and had purchased Rabbits in states requiring privity. These 31 thus had neither a valid express nor implied warranty claim against VWOA. The further subtraction of 31 yielded a final named plaintiff count of 75. The district court thus dismissed the class action for failure to meet the 100 named plaintiffs jurisdictional threshold of Section 2310(d)(3)(C). The court next addressed the second element of the motion to dismiss — the motion to sever all remaining individual claims, and then to dismiss each one for lack of federal jurisdiction. This question turned on whether the $50,000 amount in controversy requirement of Section 2310(d)(3)(B) was satisfied. None of the 75 remaining plaintiffs claimed individual damage of that magnitude. However, individual claims may be aggregated towárd satisfaction of the $50,000 requirement if the claims satisfy the requirements for joinder under Rule 20. 15 U.S.C. § 2310(d)(3)(B). Saval v. BL Ltd., 710 F.2d 1027 (4th Cir.1983). The aggregate damage claims of the 75 remaining plaintiffs did exceed $50,000, but the court concluded that Rule 20 had not been satisfied. 103 F.R.D. at 363-64. In denying joinder, the district court focused on Paragraph 22 of the First Amended Complaint, which alleged defects in a variety of components in the oil system, such as the oil pan, valve stem seals, and oil warning light. The answers to interrogatories revealed that some of the alleged defects had occurred on some cars but not others, and that some plaintiffs had needed repairs at 20,000 miles while others had not needed them until 80,000 miles. The court concluded that this disparity in timing of" }, { "docid": "4921820", "title": "", "text": "handling characteristics of the CJ-5. This information, as distinguished from a mere warning sticker, would be of value to Lieb because it would allow him to make a reasoned decision whether and how to use his vehicle. Absent such knowledge, Lieb contends he cannot drive the automobile without serious risk of accident. Because the resulting injuries could easily inflict more than $50,000 damages on Lieb, he considers this disclosure alone sufficient for jurisdictional purposes. The value of the remedy cannot be set from this worst case scenario. If Lieb is genuinely concerned about the safety of the vehicle, and can only operate it prudently with information he does not possess and seeks from the defendants, then he has some duty to mitigate potential harm by not driving the car. Although this would render the vehicle useless, the consequent damage would not exceed its purchase price, an amount far below the Act’s jurisdictional threshold. The caveat against including speculative harms in the measurement of the amount in controversy, see Kheel v. Port of New York Authority, supra, 457 F.2d at 49, has special vigor when the exercise of ordinary prudence can avert any chance of catastrophe. Accordingly, the request for an injunction does not fulfill the statutory jurisdictional requirements. To summarize, the Magnuson-Moss cause of action is dismissed as a class action for failure to name 100 plaintiffs. Dismissal of the class action necessitates denial of the motion to approve plaintiff’s program to solicit additional plaintiffs. Because less than $50,000 is in controversy, the individual suit is dismissed. Only actual damages are available, and that amount is limited to the difference between the value of the CJ-5 as accepted and its value if it had been in the condition warranted. Whatever equitable relief may be available cannot exceed the cost of the automobile. Aggregating all that might be at issue in this action falls below the jurisdictional requirement. II. Claims Arising Under State Law Lieb argues that regardless of the vitality of the Magnuson-Moss claim, his state law based causes of action are within the court’s diversity jurisdiction. Defendants concede that" }, { "docid": "1998943", "title": "", "text": "ERVIN, Chief Judge: Plaintiffs brought this breach of implied warranty action against Volkswagen of America, Inc., and Volkswagenwerk, AG (collectively “Volkswagen”). Having failed to convince the jury of their claim that certain engine components installed in their Volkswagen Rabbits were defective, plaintiffs now appeal from the district court’s refusal to grant them a new trial. Volkswagen cross appeals from the district court’s summary refusal to consider an award of attorney’s fees for Volkswagen. For the reasons stated below, we are not persuaded by plaintiffs’ assertions of error and accordingly affirm the judgment for Volkswagen. We remand, however, with instructions to the district court to hear Volkswagen’s requests for attorneys’ fees or sanctions. I. Plaintiffs brought this nationwide class action under the Magnuson-Moss Warranty Act of 1975, 15 U.S.C. §§ 2301-2312, alleging breach of the implied warranty of merchantability defined by UCC § 2-314(2)(c). Plaintiffs claim that Volkswagen installed defective valve stem seals in the engines of gasoline powered Volkswagen Rabbits for model years 1976 to 1979. These valve stem seals, made of polyacrylic rubber, are supposed to prevent oil from leaking into the engine’s combustion chamber. Plaintiff’s amended complaint specifically alleged that “due to the interaction of their inferior polyacrylic elas-tomer material with the relatively high heat conditions uniformly generated by the Rabbit engines, the seals tended to gradually and prematurely harden, crack, and deteriorate, typically at mileages of 20,000 to 40,000.” Plaintiffs sought to recover monetary losses due to excessive oil consumption, engine “seizures” and the diminished resale value of their Rabbits. Plaintiffs also sought recovery under various pendent state law unfair trade practice claims on the grounds that Volkswagen knew the valve stem seals were defective but concealed this knowledge from purchasers. In February of 1987, the district court issued a Revised Class Action Order certifying, with exceptions not relevant here, three classes of plaintiffs: (1) 1976 to 1979 model Rabbit owners who incurred unreim-bursed expenses for excessive oil consumption or engine failure between 10,000 and 80,000 miles; (2) persons who purchased 1976 to 1979 model Rabbits new or second hand prior to October 1979 and who sold" } ]

[ { "docid": "21326244", "title": "", "text": "NORTHCOTT, Circuit Judge. These aré appeals from two decrees entered in the District Court of the United States for the Southern District of West Virginia\", one- of which was entered in a suit in equity, .wherein Piedmont Coal Company and others are plaintiffs and Tower Hill Connellsville Coke Company of West Virginia-is .defendant, and permitted the filing, of an ancillary bill. The other was entered in the ancillary proceeding so commenced, in which the receivers of Tower Hill Company, the appellants, are plaintiffs and the appellees are defendants. The original suit has been twice before this court (33 F.(2d) 703; 64 F.(2d) 817, 91 A. L. R. 648), in each of which certiorari was denied (280 U. S. 607, 50 S. Ct. 157, 74 L. Ed. 650; 290 U. S. 675, 54 S. Ct. 93, 78 L. Ed. 582). Upon the last appeal in the original cause. this court affirmed the decree of the District Court, entered August 25, 1932, which \"directed that the business and affairs of Tower Hill be terminated and wound up, its property and assets sold and converted into money and distribution thereof made to its creditors and stockholders according to their respective rights and priorities. For that purpose the District Court had appointed A. S. Alexander, H. D. Rummel, and George S. Baton receivers of all the property and assets of Tower Hill of whatsoever character and wheresoever situate, with power to procure the appointment of ancillary receivers whenever and wherever in their judgment such ancillary receivers should be necessary to effectuate any of the provisions of the decree and to institute and prosecute, either in their own names or through such ancillary receivers, all suits and proceedings necessary to recover possession of all the property and assets of the corporation. . On December 12,1933, the District Court entered an order in the cause referring same to J. E. Campbell as special master, to take, state, and report to the court an account, showing all the debt's, obligations, and claims against Tower Hill, with the nature, amount, and respective' priorities thereof, the owners of the" } ]

[ { "docid": "22313273", "title": "", "text": "corporation contended that since the District Court was held to be without jurisdiction, it had no power to allow the account and order the payment out of the fund. Lion Bonding and Surety Co. v. Karatz, 262 U. S. 640, 642. This Court granted a writ of certiorari. 269 U. S. 547. The main question for decision is whether, in view of the Court of Appeals’ direction to dismiss the bill for want of jurisdiction, it was error to allow thereafter the receivers’ account and direct the payment. There was an objection to the jurisdiction, which, if it had been seasonably taken, must have prevailed. Camp v. Gress, 250 U. S. 308. The plaintiff was a citizen of New York; the defendant a Delaware corporation; the federal jurisdiction rested wholly on diversity of citizenship; and neither party was a citizen of New Jersey. Thus, there was a sound objection to the venue. If that objection had been duly made, and had been insisted upon, an error of the lower court in overruling it could not justify charging the corporation now with payment of any charge on account of the receivership. But that objection to the jurisdiction, being to the venue, could be waived. Central Trust Co. v. McGeorge, 151 U. S. 129; Kreigh v. Westinghouse & Co., 214 U. S. 249, 252-253. And, before it was taken by the answer, it had been waived by a general appearance and other action. This was conceded. The reversal with direction to dismiss for want of jurisdiction, ordered on the first appeal, was pút upon an entirely different ground. The Court of Appeals held that there was lack of jurisdiction of the subject matter. It assumed that the jurisdiction of the federal court was dependent upon the state statute. This was error. A federal district court may, under its general equity powers independently of any state statute, entertain a bill of a stockholder against the corporation for the appointment of at least a temporary receiver in order to prevent threatened diversion or loss, of assets through gross fraud and mismanagement of its officers." }, { "docid": "13988404", "title": "", "text": "conduct indicative of misconduct perpetrated for the benefit of the Hillman interests and to the detriment of the independent stockholders. A further principle, however, is operative in a situation of this sort, and that is that a court of equity will appoint a receiver to wind up a corporation in circumstances of gross fraud and mismanagement only where the misconduct of directors is current and danger of loss to the corporation is imminent. Thus in Lichens Co. v. Standard Commercial Tobacco Co., 28 Del.Ch. 220, 40 A.2d 447, 452, in which the appointment of a receiver to liquidate a solvent corporation was sought, the court made this statement: “But, conceding the inherent power of a court of equity to appoint a receiver for a solvent corporation, as we have seen, the right must be exercised with great caution, and only when there is real imminent danger of material loss that cannot be otherwise prevented.” In Tower Hill-Connellsville Coke Co. v. Piedmont .Coal Co., 4 Cir., 64 F.2d 817, 828, 91 A.L.R. 648, in which the action of the lower court appointing a receiver to wind up the affairs of the Tower Hill-Connellsville Coke Co. was affirmed, the court summarized, in part, the basic reasons for its conclusion in these words: “When it appeared that the majority stockholders were continuing to abuse their power and were controlling the assets in a manner which threatened the destruction of the interests of the minority, it was the duty of the court in the pending suit to grant adequate relief, even though this involved the winding up of the affairs of the corporation.” The important factors in that case thus seem to have been not only the abuse of power by the majority stockholders, but also the present imperiling of the rights of the preferred stockholders and the imminent possibility of almost total loss of the assets of the corporation. Applying these principles to the present case, it is quite clear that whatever abuse of trust there is or may have been in the management of the affairs of the defendant corporation by the" }, { "docid": "22123699", "title": "", "text": "stockholders. The relief was sought upon the ground that the purpose of the transfers had been to prevent inquiry into the management of the Tower Hill companies; great losses were endangering security for preferred stock liability, and the purposes for which the defendant was organized had failed. Almost immediately after knowledge of plaintiffs’ purpose to file that bill, defendant paid $1,184,000 for 11,840 shares of the Emerald Coal & Coke Company. Plaintiffs then filed a second amended and supplemental bill. After answer and trial, the district court, in accordance with the plaintiffs’ allegations and proofs, found: The purpose of the transfer of assets from Pennsylvania Tower Hill to defendant was to prevent the receivers from securing ,any relief. Defendant’s assets had so decreased as to imperil its preferred shares and their value might disappear in the near future. And, August 25, 1932, it entered a decree substantially as prayed. The Circuit Court of Appeals affirmed. 64 F. (2d) 817. It held: • None of the transactions occurring since its first decision has been to the advantage of the Tower Hill companies. The purchase of the Emerald stock was definitely harmful. Assets are hardly more than enough to pay preferred stockholders. To continue the business would allow those in control, who have shown utter disregard of rights of preferred stockholders, to speculate further at their risk alone. Transfer of assets by the Pennsylvania Tower Hill to defendant rendered futile and useless any thing the receivers might do in Pennsylvania and was made for that purpose. There was no lack of indispensable parties. This court denied certiorari. 290 U. S. 675. Respondents’ claims were verified and presented at a hearing before the master January 30, 1934. Hillman and Sheets claim the value of $105,000 in government bonds furnished by them to obtain supersedeas on defendant’s appeal from the decree of August 25, 1932. Watson claims $33,750. This is for salary as defendant’s secretary, and for services as counsel for defendant in the main suit and for the Pennsylvania Tower Hill in tax matters. The Hecla company claims as owner of preferred and" }, { "docid": "2918883", "title": "", "text": "Fire Ins. Co., v. Middendorf, 171 Ky. 771, 188 S.W. 790, 794, the opinion quotes with approval the following language from Gluck & Becker’s work on Receivers - for Corporations, 2d Ed.: “Corporate property is essentially a trust fund to be used for the benefit of creditors and shareholders. The officers of a corporation, in the management of its property, stand in a fiduciary relation. It therefore follows that if trust funds or properties are being mismanaged and in imminent danger of being lost to the stockholders and creditors through the collusion and fraud of such officers, modern equity-will not hesitate to assume charge and control of the property through a receiver.” A study of these cases will disclose that the complaint in the instant case states a cause of action well within- the statutory authority as construed. But, as I have stated, the plaintiff does not necessarily derive his right from the state statutes but his remedy is within-the equitable powers of' the Federal Courts entirely independent of statute. In the case of Burnrite Coal Briquette Co. v. Riggs et al., 274 U.S. 208, 47 S.Ct. 578, 71 L.Ed. 1002, the Supreme Court expressly states that a Federal District Court may, under its general equity powers independently of state statute, entertain a bill of a stockholder for the appointment of at least a temporary receiver to prevent di version or loss of assets through gross fraud and mismanagement of its officers. The more recent case of Pennsylvania v. Williams, 294 U.S. 176, 55 S.Ct. 380, 79 L.Ed. 841, 96 A.L.R. 1166, reaffirms the rule that a shareholder of an insolvent corporation, rather than a judgment creditor, may properly bring such a suit, and whether under the state law the shareholder has a status of a creditor, are questions which go to the propriety of the action of the court as a court of equity and not to its jurisdiction. The defendants cannot sustain their motion on this ground. The contention of the defendants that there are no proper allegations of fraud is refuted by a mere reading of the" }, { "docid": "23299422", "title": "", "text": "the facts before it, there was no showing of bad faith. In Ansbacher v. New York Trust Co., 280 N.Y. 79, 19 N. F.2d 790, the court held that, on the particular facts stated in the pleadings, the trustee was not guilty of gross negligence or bad faith; those facts are wholly unlike those before us. On its facts, Green v. Title Guarantee & Trust Co., 223 App.Div. 12, 227 N.Y.S. 252, is not in point. Elkind v. Chase National Bank, 259 App.Div. 661, 20 N.Y.S.2d 213, affirmed 284 N.Y. 726, 31 N.E.2d 198; Emmerich v. Central Hanover Bank & Trust Co., 291 N.Y. 570, 50 N.E.2d 659; Hendry v. Title Guaranty & Trust Co., 255 App. Div. 497, 8 N.Y.S.2d 164, affirmed 280 N. Y. 740, 21 N.E.2d 515; Doyle v. Chatham & Phenix National Bank, 253 N.Y. 369, 171 N.E. 574, 71 A.L.R. 1405; Smith v. Continental Bank & Trust Co., 292 N.Y. 275, 54 N.E.2d 823. Smith v. Continental Bank & Trust Co., supra. This disposition of defendant’s contention renders it, unnecessary to consider the following suggestion: Restrictions on the bringing of stockholders’ actions, such as those imposed by Federal Rules of Civil Procedure, rule 23(b) or state statutes, are procedural (e£. Piccard v. Sperry Corp., 2 Cir., 120 F.2d 328, affirming D.C., 36 F.Supp. 1006; Galdi v. Jones, 2 Cir., 141 F.2d 984; Tower Hill-Connellsville Coke Co. v. Piedmont Coal Co., 4 Cir., 64 F.2d 817, 828, 91 A.L.R. 648, certiorari denied 290 U.S. 675, 54 S.Ct. 93, 78 L.Ed. 582), and the restriction imposed by the New York courts on suits by assignees of notes is. similar. In Robinson v. Campbell, supra, the Court, explaining this doctrine, said: “In some states in ithe Union, no court of chancery exists, to administer equitable relief. In some of those states,, courts of law recognise and enforce, in suits at law, all the equitable claims, and rights which a court of equity would recognise and enforce; in others, all relief is denied, and such equitable claims and rights are to be considered as mere nullities, at law. A" }, { "docid": "22313274", "title": "", "text": "justify charging the corporation now with payment of any charge on account of the receivership. But that objection to the jurisdiction, being to the venue, could be waived. Central Trust Co. v. McGeorge, 151 U. S. 129; Kreigh v. Westinghouse & Co., 214 U. S. 249, 252-253. And, before it was taken by the answer, it had been waived by a general appearance and other action. This was conceded. The reversal with direction to dismiss for want of jurisdiction, ordered on the first appeal, was pút upon an entirely different ground. The Court of Appeals held that there was lack of jurisdiction of the subject matter. It assumed that the jurisdiction of the federal court was dependent upon the state statute. This was error. A federal district court may, under its general equity powers independently of any state statute, entertain a bill of a stockholder against the corporation for the appointment of at least a temporary receiver in order to prevent threatened diversion or loss, of assets through gross fraud and mismanagement of its officers. There were allegations in the bill adequate to support a suit of that character; and there was nothing in the bill inconsistent with its being entertained as such. The only reference in the bill to the state statute was in one of its eleven prayers. After the waiver of the objection to the venue, there was federal jurisdiction .over the parties and of the subject matter* and there was equity jurisdiction. The fact that a bill seeking appointment of a receiver of a corporation is brought in a State other than that of the incorporation may lead the court to. decline to interfere as a matter of comity or for want of equity; or it may require the court to limit the scope of the relief granted. But the fact of incorporation under the laws of another State does not preclude jurisdiction. If the dismissal directed by the Court of Appeals on the first appeal was proper, (as to which we have no occasion to express an opinion), it must be justified on the ground" }, { "docid": "23688076", "title": "", "text": "632; Armstrong v. Lear, 8 Pet. 52, 74, 8 L.Ed. 863; Security Mortgage Co. v. Powers, 278 U.S. 149, 159, 160, 49 S.Ct. 84, 73 L.Ed. 236; Pfeil v. Jamison, 3 Cir., 245 F. 119; Wyant v. Caldwell, 4 Cir., 67 F.2d 374; Columbus Gas & Fuel Co. v. City of Columbus, 6 Cir., 55 F.2d 56, 58. Cf. Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 671, 64 S. Ct. 208, 88 L.Ed. 376; Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246, 64 S.Ct. 997, 88 L.Ed. 1250. See, e.g., as to “federal law” in various fields, Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838; Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239; Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 63 S.Ct. 172, 87 L.Ed. 165; Prudence Realization Corp. v. Geist, 316 U.S. 89, 62 S.Ct. 978, 80 L.Ed. 1293; United States v. Forness, 2 Cir., 125 F.2d 928, 937-940; United States v. Pelzer, 312 U.S. 399, 402, 403, 61 S.Ct. 659, 85 L.Ed. 913; Morgan v. Commissioner, 309 U.S. 78, 80, 81, 626, 60 S.Ct. 424, 81 L.Ed. 585; Lyeth v. Hoey, 305 U.S. 188, 193, 194, 59 S.Ct. 155, 83 L.Ed. 119, 119 A.L.R. 410; American Surety Co. of New York v. Sampsell, 66 S.Ct. 571; Holmberg v. Armbrecht, 06 S.Ct. 582. Many illustrations are given and discussed in Clark, State Law in the Federal Courts, 55 Yale L.J. 267 (1940). We do not here consider the following suggestion: Restrictions on the bringing of stockholders’ actions, such ns those imposed by Federal Rules of Civil Procedure, rule 23(b), 28 U.S.C.A. following section 723c, or state statutes, are procedural ; cf. Piccard v. Sperry Corp., 2 Cir., 120 F.2d 328 affirming D.C., 33 F.Supp. 1006; Galdi v. Jones, 2 Cir., 141 F.2d 984; Tower-Hill Connellsville Coke Co. v. Piedmont Coal Co., 4 Cir., 64 F.2d 817, 828, 91 A.L.R. 648 certiorari denied 290 U.S. 675, 54 S.Ct. 93, 73 L.Ed. 582; the restriction imposed by the New York courts on" }, { "docid": "23688077", "title": "", "text": "399, 402, 403, 61 S.Ct. 659, 85 L.Ed. 913; Morgan v. Commissioner, 309 U.S. 78, 80, 81, 626, 60 S.Ct. 424, 81 L.Ed. 585; Lyeth v. Hoey, 305 U.S. 188, 193, 194, 59 S.Ct. 155, 83 L.Ed. 119, 119 A.L.R. 410; American Surety Co. of New York v. Sampsell, 66 S.Ct. 571; Holmberg v. Armbrecht, 06 S.Ct. 582. Many illustrations are given and discussed in Clark, State Law in the Federal Courts, 55 Yale L.J. 267 (1940). We do not here consider the following suggestion: Restrictions on the bringing of stockholders’ actions, such ns those imposed by Federal Rules of Civil Procedure, rule 23(b), 28 U.S.C.A. following section 723c, or state statutes, are procedural ; cf. Piccard v. Sperry Corp., 2 Cir., 120 F.2d 328 affirming D.C., 33 F.Supp. 1006; Galdi v. Jones, 2 Cir., 141 F.2d 984; Tower-Hill Connellsville Coke Co. v. Piedmont Coal Co., 4 Cir., 64 F.2d 817, 828, 91 A.L.R. 648 certiorari denied 290 U.S. 675, 54 S.Ct. 93, 73 L.Ed. 582; the restriction imposed by the New York courts on suits by assignees of bonds is-similar. See Williston, Contracts (Rev. ed.. 1936) S 447A. And so where the assignee is ignorant, thereof at tlie time of the assignment; see, e.g., Gay v. Hudson River Electric Power Co., C.C., 180 F. 222, 227; Edwards v. Ray State Gas Co., C.C., 184 F. 979, 982. gee, e.g., cases cited in note 38, supra. gee note 13, supra. For tlie court merely to appoint a lawyer who would be paid on a contingent basis and who (unlike appellants’ lawyer, who may in any event look to the Cohen estate for payment) would go unpaid if unsuccessful, would be insufficient, as the services of an expert accountant are also needed. The S. E. C. is not authorized by Statute to engage in such an undertaking except under the Chandler Act, 11 U.S.C.A. § 1 et seq. We do not here refer to the doctrine of the Boyd case. Cf. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250. Appellees contend that the examination" }, { "docid": "163777", "title": "", "text": "be appointed without hearing from the other minority shareholders cannot be raised at this stage of the proceedings; neither can appellees’ taking claim be heard now. These are not matters that go to the sufficiency of these pleadings. See Bumrite Coal Briquette Co. v. Riggs, 274 U.S. 208, 212, 47 S.Ct. 578, 579, 71 L.Ed. 1002 (1927), and Tower Hill-Connellsville Coke Co. v. Piedmont Coal Co., 64 F.2d 817, 823-24 (4th Cir.), cert, denied, 290 U.S. 675, 54 S.Ct. 93, 78 L.Ed. 582 (1933). We do not speak to what notice to the other shareholders might become appropriate at a later stage of these proceedings. . Our holding in this regard would also foreclose that portion of Cowin's Rule 10b-5 claim dismissed by the district court \"without prejudice.\" R.E. at 55. We note, however, with respect to appellant’s § 10(b) claims that the Blue Chip Court noted with apparent approval the fact that a non-selling or purchasing shareholder “who suffered loss in the value of his investment due to corporate or insider activities in connection with the purchase or sale of securities which violate Rule 10b-5 ... may frequently be able to circumvent the [purchaser-seller] limitation through bringing a derivative action on behalf of the corporate issuer if the latter is itself a purchaser or seller of securities. 421 U.S. at 738, 95 S.Ct. at 1926, citing Schoenbaum v. Firstbrook, 405 F.2d 215 (2d Cir.1968), cert, denied, 395 U.S. 906, 89 S.Ct. 1747, 23 L.Ed.2d 219 (1969). See also Wright v. Heizer Corp., 411 F.Supp. 23, 32 (N.D.Ill.1975), aff'd in part and rev’d in part, 560 F.2d 236 (7th Cir. 1977), cert, denied, 434 U.S. 1066, 98 S.Ct. 1243, 55 L.Ed.2d 767 (1978). On this record, however, we cannot speculate as to the relevance of this possibility. Cowin also based this portion of his complaint on § 13(a) of the Act, 15 U.S.C. § 78m(a) (1982). The lower court, however, found it unnecessary to decide whether Cowin could maintain his cause of action under § 13(a), R.E. at 33, and appellant did not attempt to support his complaint on appeal" }, { "docid": "23299423", "title": "", "text": "to consider the following suggestion: Restrictions on the bringing of stockholders’ actions, such as those imposed by Federal Rules of Civil Procedure, rule 23(b) or state statutes, are procedural (e£. Piccard v. Sperry Corp., 2 Cir., 120 F.2d 328, affirming D.C., 36 F.Supp. 1006; Galdi v. Jones, 2 Cir., 141 F.2d 984; Tower Hill-Connellsville Coke Co. v. Piedmont Coal Co., 4 Cir., 64 F.2d 817, 828, 91 A.L.R. 648, certiorari denied 290 U.S. 675, 54 S.Ct. 93, 78 L.Ed. 582), and the restriction imposed by the New York courts on suits by assignees of notes is. similar. In Robinson v. Campbell, supra, the Court, explaining this doctrine, said: “In some states in ithe Union, no court of chancery exists, to administer equitable relief. In some of those states,, courts of law recognise and enforce, in suits at law, all the equitable claims, and rights which a court of equity would recognise and enforce; in others, all relief is denied, and such equitable claims and rights are to be considered as mere nullities, at law. A construction, therefore, that would adopt the state practice, in all its extent, would at once extinguish, in such states, the exercise of equitable jurisdiction.” The progeny of Robinson v. Campbell are legion. See, e. g., United States v. Howland, 4 Wheat, 108, 115, 4 L.Ed. 526; Boyle v. Zacharie, 6 Pet. 648, 658, 8 L.Ed. 532; Livingston v. Story, 9 Pet. 632, 635, 9 L.Ed. 255; Neves v. Scott, 13 How. 268, 272, 14 L.Ed. 140; Payne v. Hook, 7 Wall. 425, 430, 19 L.Ed. 260; Kirby v. Lake Shore & M. S. R. Co., 120 U.S. 130, 7 S.Ct. 430, 30 L.Ed. 569; In re Sawyer, 124 U.S. 200, 209, 210, 8 S.Ct. 482, 31 L.Ed. 402; Mississippi Mills v. Cohn, 150 U.S. 202, 204, 14 S. Ct. 75, 37 L.Ed. 1052; Guffey v. Smith, 237 U.S. 101, 114, 35 S.Ct. 526, 59 L.Ed. 856; Pusey & Jones Co. v. Hannsen, 261 U.S. 491, 43 S.Ct. 454, 67 L.Ed. 763; Henrietta Mills v. Rutherford County, 281 U.S. 121, 127, 50 S.Ct. 270, 74 L.Ed." }, { "docid": "163776", "title": "", "text": "a receiver to liquidate a business organized under state law sounds a substantive right that should be determined by reference to state law. See Ashley v. Keith Oil Co., 73 F.Supp. 37, 55 (D.Mass.1947); 16 W. Fletcher, Cyclopedia on the Law of Corporations, § 7743 (Perm. ed. 1980). However, as it appears that federal standards on this question are the same as those of Delaware, see Pennsylvania Industries, 99 F.Supp. at 204-05; E. Folk, The Delaware General Corporation Law § 226 (1972), we leave the resolution of this question for another day. On remand, the district court is of course free to pursue this question further if there is any need to do so. . We do not believe, as the district court seemed to assume, R.E. at 3-4- n. * that \"imminent risk\" can be demonstrated only if the fraudulent acts are being perpetrated on an ongoing basis; past acts as well, whose effects are of a continuing nature, may lead the corporation to \"imminent risk.” . Appellees’ objection that a receiver may not be appointed without hearing from the other minority shareholders cannot be raised at this stage of the proceedings; neither can appellees’ taking claim be heard now. These are not matters that go to the sufficiency of these pleadings. See Bumrite Coal Briquette Co. v. Riggs, 274 U.S. 208, 212, 47 S.Ct. 578, 579, 71 L.Ed. 1002 (1927), and Tower Hill-Connellsville Coke Co. v. Piedmont Coal Co., 64 F.2d 817, 823-24 (4th Cir.), cert, denied, 290 U.S. 675, 54 S.Ct. 93, 78 L.Ed. 582 (1933). We do not speak to what notice to the other shareholders might become appropriate at a later stage of these proceedings. . Our holding in this regard would also foreclose that portion of Cowin's Rule 10b-5 claim dismissed by the district court \"without prejudice.\" R.E. at 55. We note, however, with respect to appellant’s § 10(b) claims that the Blue Chip Court noted with apparent approval the fact that a non-selling or purchasing shareholder “who suffered loss in the value of his investment due to corporate or insider activities in connection" }, { "docid": "13988416", "title": "", "text": "existing in its favor seems to be-asserted in connection with the stock acquisitions by the Hillman interests. I am unable to perceive in what respect a re-ceiver for Pennsylvania Industries would ■be concerned in a fraud allegedly perpetrated by the so-called Hillman interests on certain stockholders of the company. For this reason alone, I conclude that there is no ground for the granting of the relief sought in relation to this particular transaction. The last matter raised by the plaintiffs’ motion of February 16, 1951, relates to the plaintiffs’ application for compensation to themselves' and to their attorneys and accountants. The parties have agreed that the consideration and determination of this question should be postponed until the disposition of the other pending matters, and it therefore requires no discussion at the present-time. An appropiate order may be submitted, reserving jurisdiction in the matter to determine the question of compensation to the plaintiffs and their counsel and accountants as indicated in the last paragraph above. . When the motions to be considered here were argued, the voting strength of the Hillman holdings had been reduced to somewhat over 50% by an amendment to the corporate charter, which created a new common stock having a value of one share of new stock for every twenty-five shares of old common stock. Present effective control by the Hillman interests is not disputed. . It appears that this latter plan was abandoned after the institution of this suit, but that the corporate charter was subsequently amended, as is indicated in footnote 1 above. . Securities and Exchange Commission v. Fiscal Fund, D.C., 48 F.Supp. 712; Tower Hill-ConnellsviUe Coke Co. v. Piedmont Coal Co., 4 Cir., 64 F.2d 817, 91 A.L.R. 648. . S. E. O. v. Fiscal Fund, D.C., 48 F. Supp. 712; Orth v. Transit Investment Co., 3 Cir., 132 F.2d 938. . For instance the ease of S. E. C. v. Fiscal Fund, supra notes 3 and 4, is cited with approval in Lichens Co. v. Standard Commercial Tobacco Co., Inc., 28 Del.Ch. 220, 40 A.2d 447, which was in turn cited with" }, { "docid": "12327904", "title": "", "text": "conferred on the District Courts by the Constitution and laws of the United States cannot be affected by state leg islation. See No. 394, Commonwealth of Pennsylvania v. Williams et al., decided this day, 294 U. S. 176, 55 S. Ct. 380, 79 L. Ed. 841 [96 A. L. R. 1166].” See, also, Pusey & Jones Co. v. Hanssen, 261 U. S. 491, 497, 498, 43 S. Ct. 454, 67 L. Ed. 763. Under certain circumstances, even a stockholder may ask for the appointment of a receiver by a federal court. In Burnrite Coal Briquette Co. v. Riggs, 274 U. S. 208, 212, 47 S. Ct. 578, 579, 71 L. Ed. 1002, Mr. Justice Brandéis said: “A federal district court may, under its general equity powers independently of any state statute, entertain a bill of a stockholder against the corporation for the appointment of at least a temporary receiver in order to prevent threatened diversion or loss of assets through gross fraud and mismanagement of its officers.” In any event, the objection that the appellees are stockholders would not, even if valid, “go to the jurisdiction of the District Court as a federal court, but only to the propriety of its action as a court of equity.” Pennsylvania v. Williams, supra, 294 U. S. 176, at page 181, 55 S. Ct. 380, 383, 79 L. Ed. 841, 96 A. L. R. 1166. Taking the certificates in question by their four corners, however, we cannot reach the conclusion that the appellees are stockholders in the Association. In the first place, they were not to share in the profits, as such; they were to receive the withdrawal or maturity values of the certificates in any event, without reference to the fund out of which payments were to be made. The right to share in the profits of the corporation is one of the badges of a stockholder. In 14 C. J. 800, 844, the rule is thus stated: “With the exception of dividends in liquidation, dividends can be declared and paid out of net profits only, or conversely stated, when the payment" }, { "docid": "2918884", "title": "", "text": "Coal Briquette Co. v. Riggs et al., 274 U.S. 208, 47 S.Ct. 578, 71 L.Ed. 1002, the Supreme Court expressly states that a Federal District Court may, under its general equity powers independently of state statute, entertain a bill of a stockholder for the appointment of at least a temporary receiver to prevent di version or loss of assets through gross fraud and mismanagement of its officers. The more recent case of Pennsylvania v. Williams, 294 U.S. 176, 55 S.Ct. 380, 79 L.Ed. 841, 96 A.L.R. 1166, reaffirms the rule that a shareholder of an insolvent corporation, rather than a judgment creditor, may properly bring such a suit, and whether under the state law the shareholder has a status of a creditor, are questions which go to the propriety of the action of the court as a court of equity and not to its jurisdiction. The defendants cannot sustain their motion on this ground. The contention of the defendants that there are no proper allegations of fraud is refuted by a mere reading of the complaint. Much that has already been said in this opinion covers this contention. The facts as stated are not mere conclusions but of themselves charge fraud and mismanagement. It is further argued that the complaint should be dismissed because (a) the plaintiff cannot collaterally attack orders entered by the Securities and Exchange Commission and (b) this action brought by the plaintiff is premature as to matters pending before the Interstate Commerce Commission. It is brought to the attention of the court through oral arguments and briefs that a declaration and an application pursuant to the Public Utility Holding Company Act of 1935, 15 U.S.C.A. §§ 79 to 79z—6, had been filed with the Securities and Exchange Commission on March 22, 1941, wherein the proposed financial transactions involving Railway and all other pertinent matters as alleged in the complaint were declared. That the Commission entered an interim order on May 26, 1941 whereby it approved the cash contribution of $3,402,090 by Columbia to its subsidiary Railway for the purpose of refunding the outstanding $3,303,000 First and" }, { "docid": "22123698", "title": "", "text": "receivers, with power so limited, the West Virginia Tower Hill was the only necessary party. 33 F. (2d) 703. This court having denied defendant’s petition for certiorari (280 U. S. 607) the district court made its decree conform to the mandate of the Circuit Court of Appeals. The district court for western Pennsylvania appointed ancillary receivers with authority to sue the Pennsylvania Tower Hill, its officers and directors to obtain transfer by that company of property and money to the defendant. But, after the decision of the Circuit Court of Appeals and while its mandate was stayed pending decision by this court upon petition for certiorari, the individual respondents caused several transfers to be made; Pennsylvania Tower Hill traded coal lands for a mine of Redstone Coal & Coke Company. Eastern Coke Company conveyed all its assets to Pennsylvania Tower Hill. And the latter transferred ,all its property to defendant. Then plaintiffs by an amended and supplemental bill prayed that defendant be dissolved and that receivers be appointed to distribute its assets to creditors ,and stockholders. The relief was sought upon the ground that the purpose of the transfers had been to prevent inquiry into the management of the Tower Hill companies; great losses were endangering security for preferred stock liability, and the purposes for which the defendant was organized had failed. Almost immediately after knowledge of plaintiffs’ purpose to file that bill, defendant paid $1,184,000 for 11,840 shares of the Emerald Coal & Coke Company. Plaintiffs then filed a second amended and supplemental bill. After answer and trial, the district court, in accordance with the plaintiffs’ allegations and proofs, found: The purpose of the transfer of assets from Pennsylvania Tower Hill to defendant was to prevent the receivers from securing ,any relief. Defendant’s assets had so decreased as to imperil its preferred shares and their value might disappear in the near future. And, August 25, 1932, it entered a decree substantially as prayed. The Circuit Court of Appeals affirmed. 64 F. (2d) 817. It held: • None of the transactions occurring since its first decision has been to the" }, { "docid": "13988403", "title": "", "text": "of this circuit and the decisional law of Delaware on the question now being considered are in accord. Among other situations which may warrant or require a court of equity to appoint a receiver to liquidate a solvent corporation is a deadlock between contending factions seeking to control and manage a corporation, abandonment of corporate functions, failure of corporate purposes, and gross fraud and mismanagement on the part of directors and controlling stockholders involving a breach on their part of the fiduciary or quasi-fiduciary duty owed to minority stockholders. It is upon the last two of these grounds that the plaintiffs here rely. First, they allege gross fraud and mismanagement on the part of the defendant’s directors and controlling stockholders, who are generally referred to as the Hillman interests. They point to certain transactions, such as the “Bankshares” transaction and the Texas Gas Transmission transaction, and more recently the Pittsburgh Steel Securities transaction, not necessarily as being in themselves sufficient to entitle them to the relief sought, but as demonstrative of a continued course of conduct indicative of misconduct perpetrated for the benefit of the Hillman interests and to the detriment of the independent stockholders. A further principle, however, is operative in a situation of this sort, and that is that a court of equity will appoint a receiver to wind up a corporation in circumstances of gross fraud and mismanagement only where the misconduct of directors is current and danger of loss to the corporation is imminent. Thus in Lichens Co. v. Standard Commercial Tobacco Co., 28 Del.Ch. 220, 40 A.2d 447, 452, in which the appointment of a receiver to liquidate a solvent corporation was sought, the court made this statement: “But, conceding the inherent power of a court of equity to appoint a receiver for a solvent corporation, as we have seen, the right must be exercised with great caution, and only when there is real imminent danger of material loss that cannot be otherwise prevented.” In Tower Hill-Connellsville Coke Co. v. Piedmont .Coal Co., 4 Cir., 64 F.2d 817, 828, 91 A.L.R. 648, in which the" }, { "docid": "12327903", "title": "", "text": "statutes and judicial proceedings of Utah. The first point to be considered is jurisdictional. The appellants contend in their brief that the appellees are stockholders, or at most unsecured creditors, and that therefore, under the circumstances of the instant case, they cannot bring suit for the appointment of a receiver. The appellants quote copiously from the statutes of Utah in connection with their argument that the appellant Malia, as Bank Commissioner of the state, has exclusive jurisdiction over the affairs of the appellant Association. We need not pause to consider these statutes, however, since it is well settled that a State cannot limit the powers of a federal equity court. In Penn General Casualty Co. v. Pennsylvania ex rel. Schnader, 294 U. S. 189, 197, 55 S. Ct. 386, 390, 79 L. Ed. 850, decided by the Supreme Court on February 4, 1935, Mr. Justice Stone said: “Its authority as a federal court to entertain the suit is not restricted by the procedure established by local statutes for the liquidation of insurance companies. The jurisdiction conferred on the District Courts by the Constitution and laws of the United States cannot be affected by state leg islation. See No. 394, Commonwealth of Pennsylvania v. Williams et al., decided this day, 294 U. S. 176, 55 S. Ct. 380, 79 L. Ed. 841 [96 A. L. R. 1166].” See, also, Pusey & Jones Co. v. Hanssen, 261 U. S. 491, 497, 498, 43 S. Ct. 454, 67 L. Ed. 763. Under certain circumstances, even a stockholder may ask for the appointment of a receiver by a federal court. In Burnrite Coal Briquette Co. v. Riggs, 274 U. S. 208, 212, 47 S. Ct. 578, 579, 71 L. Ed. 1002, Mr. Justice Brandéis said: “A federal district court may, under its general equity powers independently of any state statute, entertain a bill of a stockholder against the corporation for the appointment of at least a temporary receiver in order to prevent threatened diversion or loss of assets through gross fraud and mismanagement of its officers.” In any event, the objection that the appellees" }, { "docid": "22123697", "title": "", "text": "and given appropriate authority. Then, defendant moved to dismiss the suit for want of indispensable parties asserted to be: its common stockholders including the Thompson company, the Pennsylvania Tower Hill, and defendant’s directors, all citizens of Pennsylvania. In support of the motion, defendant alleged that the directors were the actors in all the transactions of which the bill complained. Making any inhabitant of Pennsylvania a party would destroy diversity of citizenship and oust jurisdiction. Salem Trust Co. v. Manufacturers’ Finance Co., 264 U. S. 182, 189. The court refused to entertain the motion and, since no steps were taken to pay the dividend, appointed receivers and authorized them substantially as prayed. Defendant appealed. The Circuit Court of Appeals, July 8, 1929, found that the holders of defendant’s preferred stock had been subjected to treatment that amounted to fraud in law and that enough had been shown to require the appointment of receivers with power to bring in the courts in Pennsylvania all actions necessary to protect plaintiffs’ rights. It held that for the appointment of receivers, with power so limited, the West Virginia Tower Hill was the only necessary party. 33 F. (2d) 703. This court having denied defendant’s petition for certiorari (280 U. S. 607) the district court made its decree conform to the mandate of the Circuit Court of Appeals. The district court for western Pennsylvania appointed ancillary receivers with authority to sue the Pennsylvania Tower Hill, its officers and directors to obtain transfer by that company of property and money to the defendant. But, after the decision of the Circuit Court of Appeals and while its mandate was stayed pending decision by this court upon petition for certiorari, the individual respondents caused several transfers to be made; Pennsylvania Tower Hill traded coal lands for a mine of Redstone Coal & Coke Company. Eastern Coke Company conveyed all its assets to Pennsylvania Tower Hill. And the latter transferred ,all its property to defendant. Then plaintiffs by an amended and supplemental bill prayed that defendant be dissolved and that receivers be appointed to distribute its assets to creditors ,and" }, { "docid": "15535528", "title": "", "text": "equity has contrived its remedies ‘so that they shall correspond both to the primary right of the injured party, and to the wrong by which that right has been violated,' and ‘has always preserved the elements of flexibility and expansiveness, so that new ones may be invented, or old ones modified, in order to meet the requirements of every case, and to satisfy the needs of a progressive social condition, in which new primary rights and duties are constantly arising, and new kinds of wrongs are constantly committed.’ Pom.Eq.Jur. § 111.” Union Pacific R. Co. v. Chicago, R. I. & P. R. Co., 163 U.S. 564, 600, 601, 16 S.Ct. 1173, 1187, 41 L.Ed. 265, 278. “ * * * the Chancellor always has had, and always must have, a certain power and freedom of action, not possessed by the courts of law, of adapting the doctrines which he administers. He can extend those doctrines to new relations, and shape his remedies to new circumstances, if the relations and circumstances come within the principles of equity, where a court of law in analogous cases would be powerless to give any relief. In fact there is no limit to the various forms and kinds of specific remedy which he may grant, adopted to novel conditions of right and obligation, which are constantly arising from the movements of society. * * Vol. I, Pomeroy’s Equity Jurisprudence, 5th Ed. (1941), § 60, page 78. See also, Tower Hill-Connellsville Coke Co. of West Virginia v. Piedmont Coal Co., 4 Cir., 64 F.2d 817, 91 A.L.R. 648; Bowen v. Hock-ley, 4 Cir., 71 F.2d 781, 94 A.L.R. 856. With this nascent power, equity can shape its sanction, Sprague v. Ticonic National Bank, 307 U.S. 161, 164, 165, 167, 59 S.Ct. 777, 83 L.Ed. 1184, 1186, 1187; Alexander v. Hillman, 296 U.S. 222, 239, 56 S.Ct. 204, 80 L.Ed. 192, 199, 200, to meet the unique requirements of the cause. And here that need not take the full scope of the injunction sought, but will be satisfied by the Employer, who has already agreed to provide" }, { "docid": "5434738", "title": "", "text": "5, p. 279; Fletcher Cyclopedia Corporations, Vol. 17, §§ 8427, 8444, pp. 375, 413; and we construe this court’s action in deciding the merits o-f the prior appeal as a proper exercise of discretion to entertain the case in this jurisdiction. 1. The purchase by Hilton of the majority common stock of Mayflower. It is urged that Hilton acquired a majority of the common stock o-f Mayflower by a conspiracy among officers of Mayflower and the owners o-f a majority o-f its stock to secure for Hilton control o-f Mayflower to the detriment of its minority stockholders. It is asserted that the stock was sold to Hilton at a price substantially lower than could have been obtained, that the sale was secret, and that there were verbal conditions of which the minority were not informed. In passing upon such questions courts will ordinarily apply the law of the state of incorporation. Rogers v. Guaranty Trust Co., supra, 288 U.S. at page 130, 53 S.Ct. 295 (o-n this-point the dissent of JJ. Stone and Brandéis, and that of J. Cardozo, do not appear to differ; see 288 U.S. at pages 148-149, 53 S.Ct. 295); Williams v. Green Bay & W. R. Co., supra, 326 U.S. at page 553, 66 S.Ct. 284; Zahn v. Transamerica Corp., 3 Cir., 1947, 162 F.2d 36, 40, 172 A.L.R. 495; Geller v. Transamerica Corp., D.C.Del. 1943, 53 F.Supp. 625, 629, footnote 7, affirmed per curiam, 3 Cir., 1945, 151 F.2d 534; Restatement, Conflict of Laws, §§ 197, 199, pp. 283-4; cf. Moran v. Harrison, 1937, 67 App.D.C. 237, 240, 91 F.2d 310, 313; Armstrong v. U. S. Building Ass’n, 1899, 15 App.D.C. 1, 18. In the prior opinion of this court, however, reliance was primarily placed upon Supreme Court decisions which either arose under federal statutes or were diversity jurisdiction cases decided according to federal law prior to Erie R. Co. v. Thompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. We accordingly construe our prior opinion as an application of the District of Columbia law. Further, we apply the rule that “The first" } ]

[ { "docid": "20945710", "title": "", "text": "ZAVATT, Chief Judge. In the instant action the plaintiff, alleging patent infringement and unfair competition by the defendants, seeks an injunction, an accounting of profits, treble damages and an assessment of costs and reasonable attorneys’ fees. The case is now before this court on plaintiff’s motion pursuant to Rule 65 of the Federal Rules of Civil Procedure for a preliminary injunction pending the final hearing and determination of this action. Plaintiff is a domestic corporation engaged primarily in the manufacture of an electronic timing device known as a Time Delay Relay. It claims to be the assignee of a patent issued on March 19, 1963 (United States Letters Patent No. 3,-082,329) directed to an electronic circuit referred to as the Gate circuit. The individual defendant, Herbert L. Fischer, was employed by the plaintiff as an engineer from April 1959 until May 1960. In September 1961 Fischer organized the corporate defendant, Logitek, Inc., which also engaged in the manufacture of time delay relays. In sum, the plaintiff alleges that the defendants are making, using and selling articles which infringe upon its patent and that the defendants are availing themselves of trade secrets disclosed to the defendant, Fischer, during his employment with the plaintiff. The plaintiff’s patent, issued March 19, 1963, has never been adjudicated. Moreover, there has been no showing that either the public at large or any of the 116 other firms which manufacture time delay relays have acquiesced to this patent. Under such circumstances the cases in this Circuit leave no doubt that a preliminary injunction will not issue for this alleged infringement. As was said in Zandelin v. Maxwell Bentley Mfg. Co., 197 F.Supp. 608, 610 (S.D.N.Y.1961): “It is well established that a preliminary injunction will not issue for patent infringement unless the validity of the patent is clear and beyond question. * * * The issuance of letters patent, standing alone, is not sufficient to support such drastic relief.” See White v. Leanore Frocks, Inc., 120 F.2d 113 (2d Cir. 1941) (per curiam); Rosenberg v. Groov-Pin Corp., 81 F.2d 46 (2d Cir. 1936); Singer Mfg. Co. v." } ]

[ { "docid": "7036122", "title": "", "text": "housings used to encase crash sensors, but does not demonstrate, as a matter of law, that a single prior art reference anticipates the ’253 claims. (See Defs.’ Reply Brief at Exs. 15-30.) Despite potentially strong arguments for anticipation by the Marsh patent, Defendants are not entitled to summary judgment of invalidity, as a matter of law, based on anticipation of the ’253 claims in the prior art. C. Obviousness Under 35 U.S.C. § 103 A patent may not be obtained ... if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. 35 U.S.C. § 103(a). “An obviousness inquiry assesses ‘the differences between the subject matter sought to be patented and the prior art’ to ascertain whether ‘the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.’ ” Beckson Marine, Inc., 292 F.3d at 725 (quoting 35 U.S.C. § 103(a)). “The grant of summary judgment of invalidity for obviousness must be done on a claim by claim basis.” Knoll Pharm. Co. v. Teva Pharms. USA Inc., 367 F.3d 1381, 1383 (Fed.Cir.2004). A patent claim is invalid as obvious when the differences between the claimed invention and the prior art are such that one having ordinary skill in the art would have viewed the entire subject matter as obvious at the time the invention was made. Graham v. John Deere Co., 383 U.S. 1, 14, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). A patent’s presumption of validity requires that “[t]he accused infringer ... prove by clear and convincing evidence that each claim that is challenged cannot reasonably be held to be non-obvious.” Id. (citing Monarch Knitting Machinery Corp. v. Sulzer Morat GmbH, 139 F.3d 877, 881 (Fed.Cir.1998)). Clear and convincing evidence exists when the movant “place[s] in the mind of" }, { "docid": "15947205", "title": "", "text": "Court concludes that defendant’s accused method infringes each of the four claims of the patent in suit. Therefore, the defendant is liable for damages for infringement of claims 3 and 4 (the only claims plaintiff now presses), unless the patent is in some way invalid. PRESUMPTION OF VALIDITY OF AN ISSUED PATENT If a defendant seeks to avoid paying damages for the infringement of a patent by claiming that the patent is void because of anticipation by the prior art under 35 U.S.C. § 102 or obviousness from the prior art under 35 U.S.C. § 103, he must prove these contentions. It is a commonplace of patent law that there is a strong presumption of validity attaching to an issued patent, but that if the best prior art was not before the patent examiner when the patent was approved, that presumption is greatly weakened. See Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). The word “presumption” is probably the most abused term of art in the entire lexicon of the law. See Ash-ford and Risinger, Presumptions, Assumptions and Due Process in Criminal Cases. A Theoretical Overview, 79 Yale L.J. 165 (1969). In this context in the patent law, “presumption” appears to mean that a judge should use great restraint in finding something obvious, anticipated, etc., in hindsight when the patent examiner who originally approved the patent is an expert having daily contact with the subject matter of the patent law and the art, and the judge is not. However, if the examiner did not consider the best prior art, then of course, the trial judge is thrown back on nothing more than his own best judgment concerning the implications of that prior art, since it was never passed on by the examiner. In the present case, the Court notes that the two prior art references which the Court considers both the best prior art and dispositive were not considered by the Patent Office. LEGAL STANDARDS OF ANTICIPATION AND OBVIOUSNESS In order to establish anticipation under 35 U.S.C. § 102, it must appear that" }, { "docid": "20946778", "title": "", "text": "ZAVATT, Chief Judge. The plaintiff herein, International Biotical Corp., (hereinafter International), alleging design patent infringement and unfair competition by the defendant, Federated Department Stores, Inc. (hereinafter Federated), seeks an injunction, damages, an accounting for profits, costs and reasonable attorneys’ fees and the surrender for destruction of all the allegedly infringing materials. The case is now before this court on International’s motion, pursuant to Rule 65 of the Federal Rules of Civil Procedure, for a preliminary injunction pending the final hearing and determination of this action, International is the assignee of design patent No. 190,009 issued March 28,1961, on a combined massager and infra-red heat lamp which it has manufactured and sold since 1959 under the trade name, Infra-Massage. Federated, a large retail organization with numerous outlets, has recently introduced to the public a similar device under the trade name Pol-lenex Deep Heat Massager. These two devices have a certain resemblance, perform the same function and retail at the same price. It is unnecessary at this time to determine the validity of International’s design patent or to ascertain whether such patent, if valid, has been infringed by Federated. This patent, issued in 1961, has never been adjudicated. Nor is there any evidence that the members of the trade or the public at large have acquiesced to this patent. In its recent decision in Tempo Instrument, Inc. v. Logitek, Inc., 229 F.Supp. 1 (E.D.N.Y.1964), this court noted that: “Under such circumstances the cases in this Circuit leave no doubt that a preliminary injunction will not issue for this alleged infringement. As was said in Zandelin v. Maxwell Bentley Mfg. Co., 197 F.Supp. 608, 610 (S.D.N.Y.1961): “ ‘It is well established that a preliminary injunction will not issue for patent infringement unless the validity of the patent is clear and beyond question. * * * The issuance of letters patent, standing alone, is not sufficient to support such drastic relief.’ “See White v. Leanore Frocks, Inc., 120 F.2d 113 (2d Cir. 1941) (per curiam); Rosenberg v. Groov-Pin Corp., 81 F.2d 46 (2d Cir. 1936); Singer Mfg. Co. v. Better Service Sewing Mach. Co.," }, { "docid": "17233847", "title": "", "text": "district court erred. This error of law in claim construction underlies, in part, the district court’s abuse of discretion. V. Even if a patentee shows the likelihood of proving infringement, the accused infringer can defeat the likelihood of success on the merits by raising a substantial question as to the validity of the patent in suit. Aria Diagnostics, 726 F.3d at 1304. A claim is anticipated if a single prior art reference discloses each and every limitation claimed. Old Reliable Wholesale, Inc. v. Cornell Corp., 635 F.3d 539, 544-45 (Fed.Cir.2011). A claim is obvious in light of the prior art “if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art.” 35 U.S.C. § 103(a) (pre-America Invents Act). Obviousness is a legal conclusion based on underlying factual determinations. In re Gartside, 203 F.3d 1305, 1316 (Fed.Cir.2000). These factual determinations include the scope and content of the prior art, the differences between the prior art and the claims, the level of ordinary skill in the art, and any objective indicia of nonobviousness. Graham v. John Deere Co. of Kan. City, 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). Here, the district court clearly erred in finding a substantial question as to the '638 patent’s validity. First, this court assumes that the district court’s unconstrained statement that “Claim 1 is not novel or non-obvious” must have been a misstatement. The district court’s brief discussion of invalidity considered only one feature of the patent — the lifting of the horizontal conveyor. See Order at *4. This court appreciates the short timeframe for consideration of a preliminary injunction motion. However, the district court’s analysis in this case did not adequately support an ultimate conclusion that claim 1 was anticipated or obvious. Second, even the district court’s conclusion that the vertically-moving horizontal conveyor “was not a novel or non-obvious feature” is clearly erroneous. See id. The district court based" }, { "docid": "18570599", "title": "", "text": "subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” Although the ultimate question of obviousness is one of law, the issue can best be determined in light of three basic factual inquiries: (1) scope and content of the prior art; (2) the differences between the prior art and the claims at issue; and (3) level of ordinary skill in the pertinent art. It is after careful consideration of these three factors that the Court makes its determination that plaintiff’s invention lacked “unobviousness.” Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). The law is quite clear that the presumption of the validity of a patent may be strengthened where the Patent Office has granted it with knowledge of relevant prior art, but the law is equally clear that the presumption of validity is weakened upon a showing of pertinent prior art not considered by the Patent Office. Gaddis v. Calgon Corporation, 506 F.2d 880 (5th Cir., 1975). Quite often pertinent prior art is not considered due to the fact that the Patent Office is too overworked to give adequate attention to patent applications and grants. One year prior to plaintiff ever filing his application for the patent in question, defendant was issued a patent, Patent No. 3,261,058, hereinafter referred to as the “Tisdale patent.” The purpose of defendant’s patent was to prevent piping within the ingot mold. The Tisdale patent employed the use of vertically paralled grooves with tapered bottoms. The trend in the steel industry at the time of the development of this patent was to use two long opposed sideboards without end sideboards. To restrain the sideboards against the mold, either a wedging turnbuekle or wedging spring was employed to move along the tapered bottoms of grooves in the sideboards. At the time of trial, defendant’s expert witness, Blaine R. Helmer, testified that several years before" }, { "docid": "6646984", "title": "", "text": "U.S. Patent and Trademark Office, 882 F.2d 1570, 1576, 11 USPQ2d 1866, 1871 (Fed.Cir.1989) and Boeing Co. v. Commissioner of Patents and Trademarks, 853 F.2d 878, 881, 7 USPQ2d 1487, 1489 (Fed.Cir.1988). 16. The Court concludes that the Ramos U.S. Patent 4,380,090 continues to be entitled to the statutory presumption of validity pursuant to 35 U.S.C. § 282, even after consideration of all the prior art and the other evidence presented by Defendant Biomet upon original PTO examination and reexamination. 17. The Ramos ’090 patent enjoys an enhanced presumption of validity in that the Patent and Trademark Office has issued its Notice of Intent to Issue Reexamination Certificate, dated April 21, 1993, wherein it confirms the validity of Claims 1-5 in light of the Request for Reexamination filed by Defendant Biomet’s counsel on behalf of a defendant in another civil action for infringement of the Ramos ’090 patent. (Plaintiffs Exhibit 100; Gibson Testimony, 4/22/93, pp. 70-71). 18. Although patent claims are presumed valid under 35 U.S.C. § 282, the presumption can be overcome by a showing of clear and convincing evidence of invalidity. Under 35 U.S.C. § 103, invalidity on the basis of obviousness can be shown where the claimed invention would have been obvious to one of ordinary skill in the art at the time the invention was made. 19. Though the ultimate question is one of law, a determination of obviousness, under Section 103 is based upon the factual considerations enumerated in Graham v. John Deere Co., 383 U.S. 1, 13, 86 S.Ct. 684, 691, 15 L.Ed.2d 545, 148 USPQ 459, 465 (1966), namely: (a) the scope and content of the prior art; (b) the differences between the prior art and the claims at issue; (c) the level of ordinary skill in the art; (d) objective evidence of non-obviousness. Custom Accessories, Inc. v. Jeffrey-Allan Indus., Inc., 807 F.2d 955, 1 USPQ2d 1196 (Fed.Cir.1986). 20. The issue of obviousness is determined by reference to the hypothetical person of ordinary skill in the art. Bausch & Lomb, Inc. v. Barnes-Hind/Hydrocurve, Inc., 796 F.2d 443, 230 USPQ 416 (Fed.Cir. 1986). 21." }, { "docid": "2851946", "title": "", "text": "O. Carpenter, an officer of V Band, and Turret Equipment Corp., a subsidiary of V Band, and originally asserted one count for patent infringement and another for unfair competition. Upon commencing this action, IPC moved for a preliminary injunction. Feil and V Band subsequently asserted counterclaims against IPC alleging various antitrust violations by plaintiff, including misuse of its ’282 patent. On December 3 and 4, 1980, a hearing on plaintiff’s motion for injunctive relief was held. At the conclusion of those hearings, I denied the motion for a preliminary injunction and granted a motion by defendants for summary judgment on plaintiff’s unfair competition claim. Defendants now move for summary judgment on plaintiff’s remaining claim for patent infringement. The basis for this motion is that the ’282 patent was improvidently awarded because its purported novelties were obvious to persons possessing ordinary skills in the area of telephone trader turrets. DISCUSSION Federal patent law provides generally that a person shall be entitled to a patent unless the invention is already known or patented. See 35 U.S.C. § 102. The patent laws further provide that a patent may not be obtained though the invention is not identically disclosed or described ... if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. 35 U.S.C. § 103. Obviousness under Section 103 is shown by reviewing the scope and content of the prior art, comparing the claims against the prior art, and by determining the level of ordinary skill in the art at the time of the invention. Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). Defendants urge that the patented subject matter was known and published prior to the time of the alleged invention and was therefore not novel within the meaning of Section 102. In addition, it is submitted by defendants that the plaintiff’s patent was obvious" }, { "docid": "23111228", "title": "", "text": "to “the wholesome and well-settled rule which requires an adjudication in court, or public acquiescence, as a necessary prerequisite to granting the relief [a preliminary injunction in an action for patent infringement] here prayed for,” and Reed Mfg. Co. v. Smith & Winchester Co., 107 F. 719, 720 (2 Cir. 1901). Perhaps because the rule, imposing on a patentee seeking a preliminary injunction against infringement a burden substantially heavier than the usual ones of showing irreparable injury and probability of success, was regarded as “well-settled” as long back as 1888, most of the later decisions shed little light on the reasons for it. In Rosenberg v. Groov-Pin Corp., 81 F.2d 46, 47 (2 Cir. 1936), Judge L. Hand addressed himself to its rationale: The doctrine that in the absence of long acquiescence or adjudication an injunction [i. e., a preliminary injunction in a suit for patent infringement] will not go, is at first blush anomalous in the light of the presumption of validity which courts generally grant to a patent once issued. * * * The theory is * * * practical. Examiners have neither the time nor the assistance to exhaust the prior art; nothing is more common in a suit for infringement than to find that all the important references are turned up for the first time by the industry of a defendant whose interest animates his search. It is a reasonable caution not to tie the hands of a whole art until there is at least the added assurance which comes from such an incentive. Indeed, a unanimous Supreme Court in Graham v. John Deere Co., 383 U.S. 1, 18, 86 S.Ct. 684, 694, 15 L.Ed.2d 545 (1966), noted the “notorious difference between the standards applied by the Patent Office and by the courts,” and suggested that the “discrepancy” was due in part to “the free rein often exercised by Examiners in their use of the concept of ‘invention,’ ” a result, perhaps, of the enormous number of patent applications (nearly 100,000) which are filed each year. Without in any way disparaging the skill and devotion of" }, { "docid": "22975647", "title": "", "text": "the claim scope does not disturb that determination. Validity of the ’532, ’345, ’726, and ’911 patents VSI challenges the validity of all four Magnivision patents under 35 U.S.C. § 103. Specifically, VSI asserts that these patents are obvious in light of U.S. Patent No. 3,738,034 (the Seaver patent) or the 1984 B & G catalog and the knowledge of one of ordinary skill in the art. VSI also asserts obviousness based on the Rosen patent (U.S. Patent No. 3,291,300), the Pa-eelli patent (U.S. Patent No. 3,116,529), and German Design Patent No. G 8,212,-306.3 U1 (the German patent). On appeal, VSI particularly urges that the Cool-Ray catalogs (which depict the commercial embodiment of the Seaver patent), when viewed with the knowledge of one of ordinary skill in the art, render all of the disputed claims invalid for obviousness. The jury considered and rejected VSI’s claims of invalidity. Although the determination of obviousness is ultimately a legal conclusion, it rests on underlying factual determinations. See Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545, 148 USPQ 459, 467 (1966). Issued patents have a strong presumption of validity in infringement proceedings. See 35 U.S.C. § 282 (1994). Hence, an accused infringer who defends on grounds of patent invalidity bears the burden of showing patent invalidity by clear and convincing evidence. See Monarch Knitting Mach. v. Sulzer Moral Gmbh, 139 F.3d 877, 881, 45 USPQ2d 1977, 1981 (Fed.Cir.1998). In a challenge based on obviousness under 35 U.S.C. § 103, the person alleging invalidity must show prior art references which alone or combined with other references would have rendered the invention obvious to one of ordinary skill in the art at the time of invention. See Dennison Mfg. Co. v. Panduit Corp., 475 U.S. 809, 810, 106 S.Ct. 1578, 89 L.Ed.2d 817, 229 USPQ 478, 479 (1986); Rockwell Int’l Corp. v. United States, 147 F.3d 1358, 1364, 47 USPQ2d 1027, 1032 (Fed.Cir.1998). The “presumption of validity under 35 U.S.C. § 282 carries with it a presumption that the Examiner did his duty and knew what claims he was" }, { "docid": "20946779", "title": "", "text": "to ascertain whether such patent, if valid, has been infringed by Federated. This patent, issued in 1961, has never been adjudicated. Nor is there any evidence that the members of the trade or the public at large have acquiesced to this patent. In its recent decision in Tempo Instrument, Inc. v. Logitek, Inc., 229 F.Supp. 1 (E.D.N.Y.1964), this court noted that: “Under such circumstances the cases in this Circuit leave no doubt that a preliminary injunction will not issue for this alleged infringement. As was said in Zandelin v. Maxwell Bentley Mfg. Co., 197 F.Supp. 608, 610 (S.D.N.Y.1961): “ ‘It is well established that a preliminary injunction will not issue for patent infringement unless the validity of the patent is clear and beyond question. * * * The issuance of letters patent, standing alone, is not sufficient to support such drastic relief.’ “See White v. Leanore Frocks, Inc., 120 F.2d 113 (2d Cir. 1941) (per curiam); Rosenberg v. Groov-Pin Corp., 81 F.2d 46 (2d Cir. 1936); Singer Mfg. Co. v. Better Service Sewing Mach. Co., 131 F.Supp. 146 (S.D.N.Y.1955); Stewart Stamping Corp. v. Westchester Products Co., 119 F.Supp. 92 (S.D.N.Y.1953).” International argues the inapplicability of this well settled doctrine to the facts at bar and urges the statutory presumption of validity contained in 35 U.S.C. § 282. This presumption, however, is invoked primarily at a trial on the merits; on a motion for a preliminary injunction, “[t]he issuance of letters patent, standing alone, is not sufficient to support such drastic relief.” Zandelin v. Maxwell Bentley Mfg. Co., supra. The cases relied upon by International do not dissuade this court from refusing to enjoin the infringement of their unadjudicated patent. In Steinfur Patents Corp. v. Iceland Fur Dyeing Co., 41 F.2d 948 (E.D.N.Y.1930), Judge Byers granted a preliminary injunction only after he had noted at the outset of his decision that the plaintiff’s patents had been adjudicated and found valid. Although United States Plywood Corp. v. Zeesman Plywood Corp., 84 F.Supp. 78 (S.D.Cal. 1949) may indicate that this rule is relaxed somewhat in the Ninth Circuit, the case of P. L." }, { "docid": "17233848", "title": "", "text": "and content of the prior art, the differences between the prior art and the claims, the level of ordinary skill in the art, and any objective indicia of nonobviousness. Graham v. John Deere Co. of Kan. City, 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). Here, the district court clearly erred in finding a substantial question as to the '638 patent’s validity. First, this court assumes that the district court’s unconstrained statement that “Claim 1 is not novel or non-obvious” must have been a misstatement. The district court’s brief discussion of invalidity considered only one feature of the patent — the lifting of the horizontal conveyor. See Order at *4. This court appreciates the short timeframe for consideration of a preliminary injunction motion. However, the district court’s analysis in this case did not adequately support an ultimate conclusion that claim 1 was anticipated or obvious. Second, even the district court’s conclusion that the vertically-moving horizontal conveyor “was not a novel or non-obvious feature” is clearly erroneous. See id. The district court based this conclusion solely on Mr. Tvetene’s testimony about other sod harvesters that had been on the market — but without regard to the '638 patent’s priority date. Mr. Tvetene testified undisputedly that the only two sod harvesters having a vertical-moving horizontal conveyor were not on the market until 2006 or later. J.A. 747. Neither party challenges that the '638 patent’s priority dates back, at least, to the February 2005 provisional application. Thus, these later-sold sod harvesters (the Kesmac Slabmatic 3000 and 1500) cannot be considered prior art. This court need not consider at this time whether Trebro has proven priority to November 2004 based on the Brouwer affidavit and the purportedly corroborating attorney memorandum. Finally, the parties on appeal initially heavily disputed the scope and content of two prior patents invented by the same inventors of the '638 patent, Brouwer and Milwain — the '362 and '610 patents. However, as the PTO recognized after initially granting ex parte reexamination based on these patents, neither reference is prior art. Both patents have the same inventive entity" }, { "docid": "5163339", "title": "", "text": "literally infringe claims 1 and 4 of the '819 Patent; (7) the defendants’ proposed products infringe claims 1 and 4 of the '819 Patent under the doctrine of equivalents; (8) the '819 and '876 Patents’ term extensions are not invalid under 35 U.S.C. § 156; and (9) each of the parties’ Rule 52(c) motions are granted in part and denied in part. The court’s discussion of its findings of fact and conclusions of law are set forth in further detail below. A. Obviousness The defendants challenge the validity of many of the asserted claims as obvious in light of the prior art. Specifically, the defendants assert that claim 2 of the '819 Patent and each of the asserted claims of the RE '920 Patent are invalid for obviousness under 35 U.S.C. § 103. The court finds, for the reasons that follow, that the defendants have failed to establish, by clear and convincing evidence, that the asserted claims of the patents-in-suit are, in fact, obvious. 1. The Legal Standard 35 U.S.C. § 103(a) provides that a patent may not be obtained “if differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious to a person having ordinary skill in the art.” 35 U.S.C. § 103(a). Obviousness is a question of law that is predicated on several factual inquiries. See Richardson-Vicks v. Upjohn Co., 122 F.3d 1476, 1479 (Fed.Cir.1997). Specifically, the trier of fact is tasked with assessing four considerations: (1) the scope and content of the prior art; (2) the level of ordinary skill in the art; (3) the differences between the claimed subject matter and the prior art; and (4) secondary considerations of non-obviousness, such as commercial success, long felt but unmet need, failure of others, acquiescence of others in the industry that the patent is valid, and unexpected results. See Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). A party seeking to challenge the validity of a patent based on obviousness must demonstrate by “clear" }, { "docid": "1900802", "title": "", "text": "trademark, DRAG. Defendants argue that: (1) claim 17 of the patent is invalid; (2) the lower court erred in refusing to admit into evidence statements made under oath by Richard Self and patent office findings on obviousness; (3) if valid, claim 17 was not infringed; and (4) no substantial evidence supports the finding of trademark infringement. DISCUSSION OF THE ISSUES I. Validity of the Patent. A. Factors to be Considered. A patent is invalid if the subject matter sought to be patented would have been “obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” 35 U.S.C. § 103. “While the ultimate question of patent validity is one of law” the determination of obviousness “lends itself to several basic factual inquiries.” Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 694, 15 L.Ed.2d 545 (1966); Swofford v.B&W, Inc., 395 F.2d 362 (5th Cir.), cert. denied, 393 U.S. 935, 89 S.Ct. 296, 21 L.Ed.2d 272 (1968); Robbins Co. v. Dresser Industries, Inc., 554 F.2d 1289 (5th Cir. 1977). Factual questions properly resolved by the jury include “the scope and content of the prior art . differences between the prior art and the claims at issue . . . and the level of ordinary skill in the pertinent art . .” Graham, 383 U.S. at 17, 86 S.Ct. at 694. Skepticism of experts, commercial success, long felt but unsolved needs, and the failure of others are relevant secondary considerations. United States v. Adams, 383 U.S. 39, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966). The court instructed the jury on the “primary factors to consider” in supporting a “determination of the issue of obviousness,” and submitted to the jury the following question on the issue of validity: Are the differences between the subject matter patented by the claims of the 074 patent and the prior art such that the subject matter as a whole would have been obvious to one of ordinary skill in the valve art as of December 5, 1966? A general verdict was entered" }, { "docid": "20863455", "title": "", "text": "the '967 and '689 Patents as obvious in light of the prior art. The court finds, for the reasons that fol low, that the defendants have established by clear and convincing evidence that the patents-in-suit are obvious. 35 U.S.C. § 103(a) provides that a patent may not be obtained “if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious to a person having ordinary skill in the art.” 35 U.S.C. § 103(a). Obviousness is a question of law that is predicated on several factual inquires. See Richardson-Vicks v. Upjohn Co., 122 F.3d 1476, 1479 (Fed.Cir.1997). Specifically, the trier of fact is directed to assess four considerations: (1) the scope and content of the prior art; (2) the level of ordinary skill in the art; (3) the differences between the claimed subject matter and the prior art; and (4) secondary considerations of non-obviousness, such as commercial success, long felt but unsolved need, failure of others, acquiescence of others in the industry that the patent is valid, and unexpected results. See Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). A party seeking to challenge the validity of a patent based on obviousness must demonstrate by “clear and convincing evidence” that the invention described in the patent would have been obvious to a person of ordinary skill in the art at the time the invention was made. As discussed above, this burden of proof remains constant, even when a patent invalidity attack relies on the same prior art previously considered by the PTO; still, “it may be harder to meet the clear and convincing burden when the invalidity contention is based upon the same argument on the same reference that the PTO already considered.” See Sciele Pharma, 684 F.3d at 1260. Importantly, in determining what would have been obvious to one of ordinary skill in the art, the use of hindsight is not permitted. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 421, 127 S.Ct." }, { "docid": "11792427", "title": "", "text": "challenges the validity of the Lam patent on the following grounds: prior art anticipated Lam’s luminaire, which should not be presumed valid since the patent examiner did not consider the most relevant prior art; and the luminaire, even if not anticipated by prior art, was obvious, on which issue the trial court made no finding. An inventor is not entitled to a patent if the invention was anticipated by prior art or, as of the time it was made, would have been obvious to a person having ordinary skill in that art. 35 U.S.C. §§ 102(a)-(b), 103. The factfinder must ascertain the nature of the pertinent prior art, identify the differences between the subject invention and that art, and determine whether those differences are so slight that the invention should be considered “anticipated” by prior art, or, if not anticipated, would be “obvious” to one ordinarily skilled in that art. Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545 (1966). The two questions — anticipation and obviousness — are related, although the latter is a broader, more general test. See, e.g., Escoa Fintube Corp. v. Tranter, Inc., 631 F.2d 682, 692-93 (10th Cir. 1980). Since determining whether an invention was either anticipated or obvious requires inquiry into the state of the art and the art may be quite technical and difficult to understand, a court may also consider secondary characteristics that suggest whether the invention was obvious. These include whether the invention quickly met with commercial success, whether it met long-recognized but unsolved needs, and whether others had attempted to solve those needs but failed. See, e.g., Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 693-694, 15 L.Ed.2d 545 (1966). By statute, a patent is presumed to be valid, 35 U.S.C. § 282, but the presumption is considerably weakened if the patent examiner did not consider relevant prior art. E.g., Sidewinder Marine, Inc. v. StarbuCk Kustom Boats and Prods., Inc., 597 F.2d 201, 206 (10th Cir. 1979). While the ultimate issue of the patent’s validity is a question of" }, { "docid": "19958800", "title": "", "text": "161) Defendant argues that Dienst discloses only one server that can be accessed to retrieve the works of a specific publisher; an “informed choice” cannot occur when only one option is available. (D.I. 281 at 35) In Finkel’s words, “when the alleged ‘dispatcher’ selects a Dienst server to process a request, it does not make a selection, but rather locates the only Dienst server that contains that publisher’s works.” (D.I. 273 at ¶ 66) Finkel’s opinion is sufficient to preclude summary judgment for plaintiffs on this issue. 3. Obviousness a. Standards “A patent may not be obtained ... if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art.” 35 U.S.C. § 103(a). Obviousness is a question of law, which depends on several underlying factual inquiries. Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background the obviousness or nonobvi-ousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 127 S.Ct. 1727, 1734, 167 L.Ed.2d 705 (2007) (quoting Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966)). “Because patents are presumed to be valid, see 35 U.S.C. § 282, an alleged infringer seeking to invalidate a patent on obviousness grounds must establish its obviousness by facts supported by clear and convincing evidence.” Kao Corp. v. Unilever U.S., Inc., 441 F.3d 963, 968 (Fed.Cir.2006) (citation omitted). “[A] patent composed of several elements is not proved obvious merely by demonstrating that each of its elements was, independently, known" }, { "docid": "5557957", "title": "", "text": "asserted claims, arguing that they are obvious in light of the prior art. The court finds, for the reasons that follow, that the defendants have failed to establish by clear and convincing evidence that the patents-in-suit are obvious. 1. The Legal Standard 35 U.S.C. § 103(a) provides that a patent may not be obtained “if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious to a person having ordinary skill in the art.” 35 U.S.C. § 103(a). Obviousness is a question of law that is predicated on several factual inquires. See Richardson-Vicks v. Upjohn Co., 122 F.3d 1476, 1479 (Fed.Cir.1997). Specifically, the trier of fact is directed to assess four considerations: (1) the scope and content of the prior art; (2) the level of ordinary skill in the art; (3) the differences between the claimed subject matter and the prior art; and (4) secondary considerations of non-obviousness, such as commercial success, long felt but unsolved need, failure of others, acquiescence of others in the industry that the patent is valid, and unexpected results. See Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). “A patent shall be presumed valid.” 35 U.S.C. § 282. A party seeking to challenge the validity of a patent based on obviousness must demonstrate by “clear and convincing evidence” that the invention described in the patent would have' been obvious to a person of ordinary skill in the art at the time the invention was made. Importantly, in determining what would have been obvious to one of ordinary skill in the art, the use of hindsight is not permitted. See KSR Intern. Co. v. Teleflex, Inc., 550 U.S. 398, 421, 127 S.Ct. 1727, 167 L.Ed.2d 705 (2007) (cautioning the trier of fact against “the distortion caused by hindsight bias” and “arguments reliant upon ex post reasoning” in determining obviousness). In KSR, the Supreme Court rejected the rigid application of the principle that there should be an explicit “teaching, suggestion, or motivation”" }, { "docid": "20258630", "title": "", "text": "patent is invalid, it need not address Defendant’s secondary argument that its strollers do not infringe the '826 patent. B. The '057 Patent: Obviousness Based Upon Prior Art Defendant argues it did not infringe the '057 patent, because the invention claimed in the '057 patent is one that would have been obvious to one of ordinary skill in the art of folding strollers. (Mot. at 21-22.) Defendant thus asserts that, based upon devices and features disclosed in prior art, the alleged invention of the '057 patent is invalid for obviousness. (Id. at 22-34.) Plaintiff contends Defendant’s obviousness defense fails because the prior art does not disclose the key element of the '057 patent, i.e., the sliding plate. (Opp’n at 27.) Plaintiff also argues that even if the prior art disclosed a sliding plate, incorporating that sliding plate into the folding mechanism of the '057 patent “would have been beyond the level of skill in the art” at the time of Plaintiffs invention. (Id.) 1. Obviousness A patent is presumed valid. See 35 U.S.C. § 282. A party seeking to establish invalidity bears the burden of proving invalidity by clear and convincing evidence. Moba, B.V. v. Diamond Automation, Inc., 325 F.3d 1306, 1319 (Fed.Cir.2003). Under 35 U.S.C. § 103(a), “[a] patent may not be obtained ... if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” A determination of “obviousness” rests upon the following factual findings: (1) the scope and content of the prior art; (2) the differences between the claimed invention and the prior art; (3) the level of ordinary skill in the art; and (4) any relevant secondary considerations, including commercial success, long felt but unsolved needs, and failure of others (collectively, the “Graham factors”). Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). Though a court must base its obviousness determination" }, { "docid": "11572986", "title": "", "text": "are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” 35 U.S.C. § 103(a). With respect to the obviousness issue, the court notes that “[throughout the obviousness determination, a patent retains its statutory presumption of validity, see 35 U.S.C. § 282, and the movant retains the burden to show the invalidity of the claims by clear and convincing evidence as to underlying facts.” Rockwell Intern. Corp. v. United States, 147 F.3d 1358, 1364 (Fed.Cir.1998). It is well-settled that “the ultimate question of obviousness is a question of law.” Richardson-Vicks Inc. v. Upjohn Co., 122 F.3d 1476, 1479 (Fed.Cir.1997). Even so, “it is well understood that there are factual issues underlying the ultimate obviousness decision.” Id. Specifically, the obviousness analysis is based on four underlying factual inquiries, the so-called Graham factors: “(1) the scope and content of the prior art; (2) the differences between the claims and the prior art; (3) the level of ordinary skill in the pertinent art; and (4) secondary considerations, if any, of nonobviousness.” Kegel Co., Inc. v. AMF Bowling, Inc., 127 F.3d 1420, 1430 (Fed.Cir.1997); Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). In its evaluation of the underlying facts, “obviousness” must not be confused with “obvious to try,” as the two are distinct concepts. See, e.g., In re Deuel, 51 F.3d 1552, 1559 (Fed.Cir.1995) (“ ‘Obvious to try’ has long been held not to constitute obviousness.”); Gillette Co. v. S.C. Johnson & Son, Inc., 919 F.2d 720, 725 (Fed.Cir.1990). In its summary judgment papers, defendant contends that plaintiffs patent is invalid for obviousness. More specifically, defendant argues that U.S. Patent Nos. 3,110,494 and 2,925,273, the Morgan and Pratt patents, respectively, as well as the Quimby ball render plaintiffs use of finger markings to teach pitching obvious to one of ordinary skill in the art. In response, plaintiff submits that the claims set forth in the ’193 patent are nonobvious and valid. Plaintiff" }, { "docid": "20946780", "title": "", "text": "131 F.Supp. 146 (S.D.N.Y.1955); Stewart Stamping Corp. v. Westchester Products Co., 119 F.Supp. 92 (S.D.N.Y.1953).” International argues the inapplicability of this well settled doctrine to the facts at bar and urges the statutory presumption of validity contained in 35 U.S.C. § 282. This presumption, however, is invoked primarily at a trial on the merits; on a motion for a preliminary injunction, “[t]he issuance of letters patent, standing alone, is not sufficient to support such drastic relief.” Zandelin v. Maxwell Bentley Mfg. Co., supra. The cases relied upon by International do not dissuade this court from refusing to enjoin the infringement of their unadjudicated patent. In Steinfur Patents Corp. v. Iceland Fur Dyeing Co., 41 F.2d 948 (E.D.N.Y.1930), Judge Byers granted a preliminary injunction only after he had noted at the outset of his decision that the plaintiff’s patents had been adjudicated and found valid. Although United States Plywood Corp. v. Zeesman Plywood Corp., 84 F.Supp. 78 (S.D.Cal. 1949) may indicate that this rule is relaxed somewhat in the Ninth Circuit, the case of P. L. & M. Co. v. Ballagh, 52 F.2d 700, 701 (S.D.Cal.1931) indicates that even there “the rule is well established that except in extraordinary cases, a preliminary injunction should not issue in a patent infringement suit where there has been no adjudication of the validity of the patent.” On facts inapplicable to the instant case, the court there found the record to present “an extraordinary situation” and issued the preliminary injunction. Without conceding the existence of this rule, International argues that it “has lost much of its vitality and should be discarded, if it ever existed, in the light of the recent Supreme Court decisions in Sears, Roebuck & Co. v. Stiffel Company, 84 S.Ct. 784 (1964) and Compco Corp. v. Day-Brite Lighting, Inc., 84 S.Ct. 779 (1964).” In substance, the plaintiff argues that since these two eases have limited the basis upon which the courts may grant protection under the doctrine of unfair competition in cases where patent or copyright protection is unavailable, the courts should, therefore, broaden the scope of protection previously given in" } ]

[ { "docid": "6621338", "title": "", "text": "has a public purpose — “policing the competence and conduct of doctors” — and “can enhance competition.” Oksanen v. Page Memorial Hosp., 945 F.2d 696, 709 (4th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 973, 112 S.Ct. 973 (1992). See also Health Care Quality Improvement Act of 1986, 100 Stat. 3784, 42 U.S.C. § 11101 et seq. (illustrating public purpose of peer review process: Congress, in face of findings that show an “increaspng] occurrence of medical malpractice,” has identified “need to restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician’s previous damaging or incompetent performance,” a need that Congress believed could “be remedied through effective professional peer review,” 42 U.S.C. § 11101, and has provided for antitrust immunity for participants in properly conducted peer review process, 42 U.S.C. § 11111). In the absence of actual detrimental effects to competition or a naked restraint on price or output and in the face of a- process now approved by Congress, Dr. Lie must allege and prove market power to sustain an antitrust action. Dr. Lie also relies on Summit Health, Ltd. v. Pinhas, — U.S. -, 111 S.Ct. 1842, 114 L.Ed.2d 366 (1991), and Patrick v. Burget, 486 U.S. 94, 108 S.Ct. 1658, 100 L.Ed.2d 83 (1988), for the proposition that in a staff privileges case, it is unnecessary for a plaintiff to allege or prove market power. Neither of these cases addresses the issue or discusses market power. Dr. Lie can show only that he has suffered economic injury, a loss of personal income. He shows no evidence to suggest an injury to competition in the form of increased cost or reduced supply of services or harm to the consumer. He produces nothing that suggests an illegal restraint of trade. In the absence of such a showing, Dr. Lie has no antitrust complaint. Because we find that Dr. Lie has failed to make out an antitrust case, we do not reach the other grounds for dismissal proposed by the defendant. We affirm the judgment of the District Court." } ]

[ { "docid": "3139882", "title": "", "text": "physician provided substandard care. Johnson, 964 F.2d at 121. On the other hand, a factfinder may infer the existence of an illegitimate motive if the peer group’s conclusions are so baseless that no reasonable medical practitioner could have reached those conclusions after reviewing the same set of facts. Bolt v. Halifax Hosp. Medical Ctr., 891 F.2d 810, 821 (11th Cir.1990). “[A]ntitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Conduct that is as consistent with a lawful motive as with an unlawful motive, standing alone, does not support the inference of an antitrust conspiracy. Id.; see also Lovett v. General Motors Corp., 998 F.2d 575, 579 (8th Cir.1993), Although Will-man submitted affidavits to the contrary, we conclude that the opinions of Drs. MeCallister, Koontz, Gervin, and Mattox established that the peer group’s conclusions were not so baseless as to permit the inference of improper motive. Accordingly, we conclude that the limitation and eventual termination of Willman’s staff privileges, in light of the conflicting medical opinions regarding the acceptability of Willman’s care, is as consistent with the lawful motive of promoting quality patient care as with an anticompetitive motive and therefore, without more, does not give rise to an inference of an antitrust conspiracy. Willman contends, however, that the record contains additional evidence of an unlawful motive. He first argues that the participation of his competitors in the peer review process is evidence of such a motive. Although physicians whom Willman alleges were his competitors participated at every stage of the review process, there is no evidence that the competitors acted in concert to pursue an unlawful motive. The record does indicate that Beheler, one of Will-man’s competitors, may have been biased against Willman. This evidence does not establish an anticompetitive motive among all of Willman’s peer reviewers, however. Will-man presented no evidence that any other competitors shared Beheler’s sentiments, and Beheler submitted an affidavit stating that he never voted or participated in any" }, { "docid": "23184165", "title": "", "text": "observed that an exception to the general rule that a corporation cannot conspire with its officers or agents “may be justified when the officer has an independent personal stake in achieving the corporation’s illegal objective.” Greenville Pub. Co. v. Daily Reflector, Inc., 496 F.2d 391, 399 (4th Cir.1974). Since Greenville was decided, however, this exception has expanded and in the process has been criticized for, among other things, becoming an exception that threatens to swallow the rule. See Nurse Midwifery, 918 F.2d at 615; P. Areeda, Antitrust Law, ¶ 1471 (1986). Given the force of these criticisms, we decline to extend the personal stake exception beyond the rationale underlying the Greenville decision. There it was held that the president of the defendant company could conspire with it where he had a financial interest in another firm that competed with the plaintiff and would directly benefit if the plaintiff was eliminated as a competitor. 496 F.2d at 400. Here, only one member of the medical staff, Dr. Dale, could be said to have been in competition with Ok-sanen when any of the disputed peer review decisions occurred. Dr. Dale’s areas of practice apparently overlapped somewhat with Oksanen’s, but Dale did not begin practice at Page Memorial until August, 1983 — well after much of the basis for disciplining Oksanen was established— and he did not take part in the proceedings leading to Oksanen’s suspension. Dr. Hol-singer was a family practitioner, like Ok-sanen, but he was not accepting new patients after 1982. Drs. Horng and Ancheta did not compete with Oksanen, but were surgeons who looked to the general practitioners for referrals. Thus, it is unclear whether any decision to eliminate Oksanen from the market would directly benefit the members of the medical staff. Drs. Hol-singer, Horng, and Ancheta could conceivably have attained some benefits in the long-run if their critic, Oksanen, was no longer practicing at Page Memorial. We doubt, however, that these indirect economic interests justify a personal stake exception. In any event, the more important aspect of Greenville for the purposes of peer review is the degree of control" }, { "docid": "3139885", "title": "", "text": "staffs conspired with the defendant hospitals, Willman contends that the members of the medical staffs conspired among themselves to eliminate him as a competitor. Regardless of whether a hospital has the capacity to conspire with members of its medical staff, the staff physicians can conspire among themselves, giving rise to section one liability. See, e.g., Oksanen, 945 F.2d at 706; Bolt, 891 F.2d at 819; Weiss, 745 F.2d at 814. That the members of the medical staff can conspire among themselves, standing alone, however, does not permit a reasonable jury to conclude that the physicians acted in concert in pursuit of an unlawful objective. As we have previously discussed, the physicians’ actions during the peer review process are as consistent with the lawful purpose of promoting quality patient care as with the unlawful purpose of eliminating potential competitors. Willman’s bare, unsupported allegations that his competitors acted in concert to insulate themselves from competition are not adequate responses to the defendants’ summary judgment motion and supporting evidence. See Everett v. St. Ansgar Hosp., 974 F.2d 77, 80 (8th Cir.1992) (holding that summary judgment is proper when physician merely alleges that his peer reviewers acted in bad faith and malice). Accordingly, we conclude that the grant of summary judgment on Willman’s section one claims was proper. See Nurse Midwifery Assocs. v. Hibbett, 918 F.2d 605, 617 (6th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 406, 116 L.Ed.2d 355 (1991). B. Section Two Allegations In addition to his section one claim, Willman raised two claims alleging a violation of section two of the Sherman Act, 15 U.S.C. § 2. Willman alleges that in terminating his staff privileges, the defendants denied him access to the hospitals’ facilities, which are essential for him to compete. The essential facilities doctrine requires those in possession of facilities which cannot practical ly be duplicated to share those facilities with their competitors. City of Malden, Mo. v. Union Elec. Co., 887 F.2d 157, 160 (8th Cir.1989). To prevail under the essential facilities doctrine, the plaintiff must establish “(1) control of an essential facility by a monopolist; (2) the" }, { "docid": "3139877", "title": "", "text": "v. Christian Hosp., Northeast-Northwest, 4 F.3d 682, 685 n. 3 (8th Cir.1993). There is a split among the circuits that have considered the issue. Some courts hold that a hospital and its medical staff are not separate entities for purposes of section one because the medical staff acts as an agent of the hospital during the peer review process. See, e.g., Oksanen v. Page Memorial Hosp., 945 F.2d 696, 703 (4th Cir.1991) (en banc), cert. denied, — U.S.-, 112 S.Ct. 973, 117 L.Ed.2d 137 (1992); Weiss v. York Hosp., 745 F.2d 786, 817 (3d Cir.1984), cert. denied, 470 U.S. 1060, 105 S.Ct. 1777, 84 L.Ed.2d 836 (1985). The Eleventh Circuit, on the other hand, has held that a hospital and the members of its medical staff are legally separate entities capable of conspiring with one another under the Sherman Act. Bolt v. Halifax Hosp. Medical Ctr., 851 F.2d 1273, 1280 (11th Cir.1988) (subsequent history omitted); cf. Oltz v. St. Peter’s Community Hosp., 861 F.2d 1440, 1450 (9th Cir.1988) (holding that a hospital has the capacity to conspire with members of its medical staff, although not considering the issue in the context of peer review proceedings). We need not decide whether a hospital can conspire with its medical staff, for even if we assume that the defendant hospitals had the capacity to conspire with their medical staffs, we conclude that Willman’s section one claim fails. “Although revocation of a doctor’s privileges may, perforce, eliminate competition by decreasing the number of doctors in a given specialty, this alone will not give rise to an antitrust violation.” Johnson v. Nyack Hosp., 964 F.2d 116, 121 (2d Cir.1992). An essential element of a section one violation is proof of an unlawful objective. Monsanto Co., 465 U.S. at 768, 104 S.Ct. at 1473 (requiring proof of a “conscious commitment to a common scheme designed to achieve an unlawful objective”); American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946) (stating that “a unity of purpose or a common design and understanding, or a meeting of minds in" }, { "docid": "3139880", "title": "", "text": "forum in which to evaluate a physician’s competence. Oksanen, 945 F.2d at 711 (“[t]he antitrust laws were not intended to inhibit hospitals from promoting quality patient care through peer review nor were the laws intended as a vehicle for converting business tort claims into antitrust causes of action.”). Accordingly, whether Willman actually provided substandard care is not the proper question. Rather, we must decide whether Willman’s peer reviewers could have reasonably concluded that he provided substandard care. Although the record contains evidence from physicians to the effect that in their opinion Willman had provided acceptable care, we nevertheless conclude that it would not have been unreasonable for Willman’s peer reviewers to have doubts about the quality of Willman’s patient care. Physicians who were not affiliated with the hospital defendants and who did not practice in St. Joseph and therefore did not compete with Willman agreed that in some cases Willman had rendered care that was below the acceptable standard. For example, Dr. Ben MeCallister, a board-certified internist and cardiologist, reviewed the charts of nine of Willman’s patients and found that three of these patients had received substandard care. Dr. Paul Koontz, a board-certified general surgeon, reviewed eight of Willman’s charts and found that Willman’s care was deficient in four cases. Dr. Alfred Gervin, who is board certified in general surgery, critical care medicine, and emergency room medicine, concluded that in twenty-three of the thirty-four charts that he had reviewed, Willman had either violated the acceptable standard of care or had rendered “terrible care.” Dr. Kenneth Mattox, a board-certified general surgeon and thoracic surgeon, reviewed only the Fanning case and concluded that Willman’s “lack of understanding of the potential ramifications to the patient, coupled with his actual mismanagement and mistreatment of the patient, demonstrate a careless and reckless disregard for the patient.” Indeed, one of Willman’s medical experts concluded that “some of the cases, you know, represent outer edges of what we perceive as standard of care.” Corrective action against a physician does not violate the antitrust laws if thé physician’s peer reviewers had legitimate medical reasons to believe that the" }, { "docid": "3139878", "title": "", "text": "to conspire with members of its medical staff, although not considering the issue in the context of peer review proceedings). We need not decide whether a hospital can conspire with its medical staff, for even if we assume that the defendant hospitals had the capacity to conspire with their medical staffs, we conclude that Willman’s section one claim fails. “Although revocation of a doctor’s privileges may, perforce, eliminate competition by decreasing the number of doctors in a given specialty, this alone will not give rise to an antitrust violation.” Johnson v. Nyack Hosp., 964 F.2d 116, 121 (2d Cir.1992). An essential element of a section one violation is proof of an unlawful objective. Monsanto Co., 465 U.S. at 768, 104 S.Ct. at 1473 (requiring proof of a “conscious commitment to a common scheme designed to achieve an unlawful objective”); American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946) (stating that “a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement” is sufficient). Monitoring the competence of physicians through peer review is clearly in the public interest, Lie v. St. Joseph Hosp., 964 F.2d 567, 570 (6th Cir.1992), and revocation of a physician’s privileges because of legitimate concerns about the quality of patient care that he rendered is obviously a lawful objective. Willman contends, however, that the peer review proceedings were a “sham” and that his privileges were terminated to prevent him from competing with the defendants rather than because of concerns about substandard patient care. We first consider Willman’s argument that there is a genuine issue of fact concerning whether the peer review process was a sham. Specifically, Willman contends that the evidence “creates a genuine issue as to whether the peer reviewers reached the wrong result, and, as a consequence, removed a qualified physician.” Based upon the record, we agree with Willman that whether he is a competent physician is in dispute. We do not agree, however, that this factual issue precludes summary judgment. An antitrust action is not the proper" }, { "docid": "8897628", "title": "", "text": "is activity in which multiple parties join their resources, rights, or economic power together in order to achieve an outcome that, but for the concert, would naturally be frustrated by their competing interests (by way of profit-maximizing choices).” Id. at 282; see Copperweld, 467 U.S. at 769, 104 S.Ct. 2731. In such circumstances there is no basis for antitrust conspiracy liability. Id.; see also Golden v. Kentile Floors, Inc., 475 F.2d 288, 290-91 (5th Cir.1973) (“Supreme Court precedents make clear that participation in a combination is illegal only when, at the minimum, it manifestly results from the family of procompetitive or anticompetitive objectives related to the relevant market.”). Here, just as in Virginia Vermiculite, Ltd., there is simply no showing that “the parties combine[d] (i.e., [brought] into concert) their resources, rights, or economic power in such a way as to counteract naturally competing interests that would otherwise set them at odds.... ” Virginia Vermiculite, Ltd., 307 F.3d at 282. The clear prerequisites to avoiding summary judgment in antitrust conspiracy cases have been established by the Supreme Court and consistently applied by our circuit court. \" See Matsushita, 475 U.S. at 588, 106 S.Ct. 1348 (“conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy”); Monsanto, 465 U.S. at 764, 104 S.Ct. 1464 (“the antitrust plaintiff should present direct or circumstantial evidence that reasonably tends to prove that [the alleged conspirators] ‘had a conscious commitment to a common scheme designed to achieve an unlawful objective’ ”) (quoting Edward J. Sweeney, 637 F.2d at 111). These standards were summarized by the Eleventh Circuit in Seagood Trading Corp.: The threshold requirement of every conspiracy claim, under both Section 1 and Section 2, is an agreement to restrain trade. To prove that such an agreement exists between two or more persons, a plaintiff must demonstrate “a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement.” American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946). We recognize that" }, { "docid": "3139881", "title": "", "text": "Willman’s patients and found that three of these patients had received substandard care. Dr. Paul Koontz, a board-certified general surgeon, reviewed eight of Willman’s charts and found that Willman’s care was deficient in four cases. Dr. Alfred Gervin, who is board certified in general surgery, critical care medicine, and emergency room medicine, concluded that in twenty-three of the thirty-four charts that he had reviewed, Willman had either violated the acceptable standard of care or had rendered “terrible care.” Dr. Kenneth Mattox, a board-certified general surgeon and thoracic surgeon, reviewed only the Fanning case and concluded that Willman’s “lack of understanding of the potential ramifications to the patient, coupled with his actual mismanagement and mistreatment of the patient, demonstrate a careless and reckless disregard for the patient.” Indeed, one of Willman’s medical experts concluded that “some of the cases, you know, represent outer edges of what we perceive as standard of care.” Corrective action against a physician does not violate the antitrust laws if thé physician’s peer reviewers had legitimate medical reasons to believe that the physician provided substandard care. Johnson, 964 F.2d at 121. On the other hand, a factfinder may infer the existence of an illegitimate motive if the peer group’s conclusions are so baseless that no reasonable medical practitioner could have reached those conclusions after reviewing the same set of facts. Bolt v. Halifax Hosp. Medical Ctr., 891 F.2d 810, 821 (11th Cir.1990). “[A]ntitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Conduct that is as consistent with a lawful motive as with an unlawful motive, standing alone, does not support the inference of an antitrust conspiracy. Id.; see also Lovett v. General Motors Corp., 998 F.2d 575, 579 (8th Cir.1993), Although Will-man submitted affidavits to the contrary, we conclude that the opinions of Drs. MeCallister, Koontz, Gervin, and Mattox established that the peer group’s conclusions were not so baseless as to permit the inference of improper motive. Accordingly, we conclude" }, { "docid": "5794043", "title": "", "text": "of an antitrust conspiracy from ambiguous circumstantial evidence in cases where the challenged activity promotes competition.” Mathews, 87 F.3d at 640. Thus, “when the defendant puts forth a plausible, procompetitive explanation for his actions, [the court] will not be quick to infer, from circumstantial evidence, that a violation of the antitrust laws has occurred; the plaintiff must produce more probative evidence that the law has been violated.” Todorov, 921 F.2d at 1456. Courts have routinely found that, when properly conducted, peer review actions, such as those taken in the instant case, “generally enhance competition and improve the quality of medical care.” Mathews, 87 F.3d at 624; see also Oksanen, 945 F.2d at 709 (“[T]he peer review process, by policing competence and conduct of doctors, can enhance competition.”); Weiss v. York Hospital, 745 F.2d 786, 821 n. 60 (3d Cir.1984) (“[I]t seems obvious that by restricting staff privileges to doctors who have achieved a predetermined level of medical competence, a hospital will enhance its reputation and the quality of medical care it delivers. Thus, such action is pro-competitive.”). Moreover, “Corrective action against a physician does not violate the antitrust laws if the physician’s peer reviewers has legitimate medical reasons to believe that the physician provided substandard care.” Willman v. Heartland Hospital East, 34 F.3d 605, 611 (8th Cir.1994). Ginzburg provides no evidence, other than her conelusory assertions, that the actions taken by Defendants in connection with the 8 peer review proceedings were pretextual. Such unsupported allegations, are insufficient, standing alone, to defeat an otherwise properly supported summary judgment motion. Id. at 612. Furthermore, the Court finds that, in light of the conflicting evidence regarding the quality of Ginzburg’s care and her ability to work with other staff members, Defendants’ conduct in declining to provide cross-coverage for Ginzburg’s patients, in refusing to refer Ginzburg patients and in conducting peer review investigations regarding Ginzburg’s level of competence, is as consistent with the lawful motive of enhancing patient care as it is with the anticompetitive motive of reducing competition. Thus, absent “more probative evidence that the law has been violated”, Ginzburg’s evidence does not" }, { "docid": "5793994", "title": "", "text": "matter of law. (Plaintiff’s Further Response in Opposition to Summary Judgment, Instrument No. 136 at 5-6). Ginzburg identifies these three alleged unlawful restraints as: (1) “the cross-coverage group boycott”; (2) “the hospital referrals group boycott”; and (3) “the blacklist group boycott”. (Plaintiffs’ Further Response in Opposition to Summary Judgment, Instrument No. 136 at 6-13). According to Ginzburg, the “cross-coverage group boycott” occurred in 1994 when Cox, Downey, and Moore agreed to terminate their cross-coverage agreement, which provided for the assumption of patient care by available physicians during another physician’s absence, after such agreement had been in effect between the four neonatologists for nearly seven years. Ginzburg describes the “hospital referrals group boycott” as an agreement between Cox, Downey, and Moore and the Hospital to “restrict [patient] referral services to Dr. Ginzburg and to provide referrals on a discriminatory basis.” (Plaintiffs’ Further Response in Opposition to Summary Judgment, Instrument No. 136 at 9-10). The “blacklist group boycott”, Ginzburg claims, consisted of eight allegedly sham peer review proceedings, culminating in the Credentials Committee’s recommendation that Ginzburg’s application for reappointment be denied. Id. at 10. Ginzburg contends that the medical staff initiated each peer review for the sole purpose of ruining her professional reputation, “creating] the impression among Dr. Ginzburg’s source of referrals that Dr. Ginzburg was out of favor with the hospital, rendering substandard care, and not a suitable neonatoíogist to whom to refer patients.” Id. at 10-11. Ginzburg also asserts that the medical staff, as a part of the blacklisting effort, actually confronted “doctors referring cases to Dr. Ginzburg [and] urg[ed] them not to do so.” Id. Ginzburg maintains that by establishing the existence of a per se offense, such as the group boycotts allegedly engaged in by Defendants, she is relieved of the additional burden of proving that competitive harm occurred within a specifically defined market before she is entitled to prevail on her section 1 claim. In the alternative, Ginzburg argues that if the rule of reason applies, the restraints at issue in this case are “naked restraints”, which again do not require an elaborate market analysis to demonstrate" }, { "docid": "10067850", "title": "", "text": "competes in the market with other sellers of malpractice insurance. Instead, it will be the conduct of physicians who retain their identity as individuals who compete among themselves and with plaintiffs in providing maternity care services and combine to unreasonably restrain competition in that field by denying malpractice insurance coverage to a competing maternity care provider. Accordingly, the language quoted from Maricopa does not compel the conclusion arrived at by the district court that, as a matter of law, “SMVIC [sic] must be viewed as a single entity.” Since SVMIC and its members were theoretically capable of conspiring, the question remains upon remand whether physicians who had previously pursued their own interests separately, in this instance combined to unlawfully restrain competition among providers of maternity care. C. Conspiracy Between Dr. Hibbett and Vanderbilt A plaintiff in an antitrust suit need not introduce any direct evidence of an alleged conspiracy. “[Bjusiness behavior is admissible circumstantial evidence from which the fact-finder may infer agreement.” Theatre Enters., Inc. v. Paramount Film Distrib. Corp., 346 U.S. 537, 540, 74 S.Ct. 257, 259, 98 L.Ed. 273 (1954). A conspiracy can be established by showing that business behavior evidenced “a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement.” American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946). However, “antitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The fact that a group of defendants’ conduct is consistent with an illegal conspiracy does not, in itself, support an inference of antitrust conspiracy. Id.; Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 1471, 79 L.Ed.2d 775 (1984). For a jury to be able to reasonably infer that an illegal conspiracy existed, a plaintiff “must present evidence ‘that tends to exclude the possibility’ that the alleged conspirators acted independently.” Matsushita, 475 U.S. at 588, 106 S.Ct. at 1356" }, { "docid": "14162686", "title": "", "text": "Meyer testified in this litigation that he stopped attending Committee of Counsel meetings in 1983, prior to the alleged initiation of the conspiracy at issue in this litigation. See Meyer Depo., at 79. The discussions about allocations Mr. Meyer recalled in his Washington state deposition occurred in the late 1970s. Id. at 112. Mr. Meyer also testified that there were never any discussions of setting prices at the Com- • mittee of Counsel meetings. Id. at 68-70. Nor was there a discussion among representatives of the cigarette companies to agree to impose allocations on wholesalers. Id. at 82. . The court is very mindful that this case is before it on motions for summary judgment and that it may not supplant a jury's function if it finds a dispute of material fact in the admissible evidence. Although there .is much discussion herein of the evidence, the court has been careful to limit its evaluation of the evidence to whether allowable inferences are or are not created under the various standards. . There is no dispute that the cigarette industry in the United States is an oligopoly. See Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227-30, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993); Expert Report (Plaintiffs') of Dr. Franklin Fisher (\"Fisher Report”), ¶ 137. . Plaintiffs' proposition of the law would encompass the activities of even lawfully operating oligopolies. Plaintiffs cite American Tobacco Co. v. United States, 328 U.S. 781, 809-10, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946), to support this proposition, but American Tobacco speaks far more narrowly. There, the Court held that \"[n]o formal agreement is necessary” because a conspiracy could be shown by demonstrating \"a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement.” Id. Even under this statement of the law, Plaintiffs still must show some kind of agreement. . Cf. Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992): The Court's requirement in Matsushita that the plaintiffs’ claims make economic sense did not" }, { "docid": "8392827", "title": "", "text": "(observing that the Virginia statute making peer review information privileged is codified in the medical malpractice chapter of the title on civil procedure). The Georgia Supreme Court, for example, stated, “Courts considering the question have held that the enactment of such statutes represents a proper legislative choice between the competing public concerns of fostering medical staff candor, on the one hand, and impairing medical malpractice plaintiffs’ access to evidence, on the other hand.” Eubanks, 267 S.E.2d at 232. Other reasons that have been advanced in support of the privilege include protecting committee members from defamation suits and a loss of referrals. See, e.g., Baltimore Sun Co. v. University of Md. Med. Sys. Corp., 321 Md. 659, 584 A.2d 683, 686-87 (1991). In contrast to a discrimination case, in which the plaintiffs claim arises out of the peer review proceedings, a plaintiffs claim in a medical malpractice case arises from ae- tions that occurred independently of the review proceedings. See Memorial Hosp. v. Shadur, 664 F.2d 1058, 1062 (7th Cir.1981) (per curiam) (“To recognize hospital review or disciplinary proceedings as privileged in the context of a malpractice action will generally have little impact upon the plaintiffs ability to prove a meritorious claim. For the crucial issue in that type of case is not what occurred at the review proceeding, but whether the defendant was in fact negligent in his care and treatment of the plaintiff.”). There is no evidence that state legislatures considered the potential impact on discrimination cases of a privilege for medical peer review proceedings. Thus, the states’ policy decisions, reflecting different concerns than those implicated here, do not inform the judgment of this court in this case. Weighing further against recognizing a privilege here is that, in contrast to a medical malpractice or defamation action, if a plaintiff succeeds in a discrimination case, he advances important public interests in addition to his personal interests. Cf. id. (refusing to recognize a privilege for medical disciplinary proceedings in an antitrust case and observing that if the plaintiff was successful in proving his claim, he would “vindicate not only his own" }, { "docid": "5794044", "title": "", "text": "is pro-competitive.”). Moreover, “Corrective action against a physician does not violate the antitrust laws if the physician’s peer reviewers has legitimate medical reasons to believe that the physician provided substandard care.” Willman v. Heartland Hospital East, 34 F.3d 605, 611 (8th Cir.1994). Ginzburg provides no evidence, other than her conelusory assertions, that the actions taken by Defendants in connection with the 8 peer review proceedings were pretextual. Such unsupported allegations, are insufficient, standing alone, to defeat an otherwise properly supported summary judgment motion. Id. at 612. Furthermore, the Court finds that, in light of the conflicting evidence regarding the quality of Ginzburg’s care and her ability to work with other staff members, Defendants’ conduct in declining to provide cross-coverage for Ginzburg’s patients, in refusing to refer Ginzburg patients and in conducting peer review investigations regarding Ginzburg’s level of competence, is as consistent with the lawful motive of enhancing patient care as it is with the anticompetitive motive of reducing competition. Thus, absent “more probative evidence that the law has been violated”, Ginzburg’s evidence does not create an inference of an antitrust conspiracy. Todorov, 921 F.2d at 1456. Finally, Ginzburg’s contention that Memorial’s motivation for her removal was based on its desire to continue its practice of reducing costs by using allegedly inferior equip ment and by employing nurses who lacked proper training — an objective which could be frustrated by Ginzburg’s unwillingness to refuse to refrain from filing complaints regarding such deficiencies in Hospital operations— is inconsistent with the reality faced by a hospital in a highly competitive marketplace where quality of care is generally the determinative factor for patients in making hospital selection decisions. In fact, Eastham testified that “[w]e simply have no incentive to provide a lower quality of care. To do so would probably result in fewer deliveries or nursery care at our Hospital because patients, obstetricians, neonatologists and pediatricians would simply go to another hospital.” (Appendix to Defendants’ Motion for Summary Judgment, Instrument No. 91, Ex. W, Eastham Aff. at 12). Eastham also testified that Memorial Hospital Southwest strives to provide high quality care. We believe" }, { "docid": "1867162", "title": "", "text": "Act.’ ” In re Copper Antitrust Litigation, 436 F.3d 782, 802 (7th Cir.2006) (quoting Oakland-Alameda Cnty. Builders’ Exch. v. F.P. Lathrop Constr. Co., 4 Cal.3d 354, 93 Cal.Rptr. 602, 482 P.2d 226, 231 n. 3 (1971)). Therefore, we will conduct a single analysis for both claims using federal cases interpreting the Sherman Act. Section 1 of the Sherman Act prohibits “[ejvery contract, combination ... or conspiracy, in restraint of trade or commerce,” 15 U.S.C. § 1, “though courts have long restricted its reach to agreements that unreasonably restrain trade,” Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 705 (7th Cir.2011). Agreements to fix prices unambiguously fall within the ambit of § 1. Id. To prove a § 1 claim, plaintiffs must prove three things: (1) defendants had a contract, combination, or conspiracy (“an agreement”); (2) as a result, trade in the relevant market was unreasonably restrained; and (3) they were injured. Id. “To show concerted action, antitrust plaintiffs must produce evidence that would allow a jury to infer that the alleged conspirators ‘had a conscious commitment to a common scheme designed to achieve an unlawful objective.’ ” Id. at 706 (quoting Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984)). The evidence must “reveal ‘a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement.’ ” Id. (quoting Am. Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946)). In sum, Appellants must produce evidence showing there is a genuine issue of material fact as to whether Schreiber’s decision to purchase spot cheese on the CME was made by Schreiber alone, or while acting in concert with DFA. To determine whether summary judgment is appropriate in light of the produced evidence, we use a two-part inquiry. First, we “assess whether [Appellants’] evidence of agreement is ambiguous—that is, whether it is equally consistent with [Schreiber’s] permissible independent interests as it is with improper activity.” Id. at 707. Appellants argue that communications between DFA and Schreiber employees support an" }, { "docid": "8862494", "title": "", "text": "may properly rely on circumstantial evidence — “evidence of irrational conduct that would create an inference of conspiracy” — to prove a Sherman Act conspiracy claim. See Bolt v. Halifax Hosp. Med. Ctr., 891 F.2d 810, 819 (11th Cir.1990) (holding that hospitals may be found liable for conspiring with members of medical staff, and that evidence of pretextual, sham peer review proceedings presented jury question whether hospitals conspired with peer review committees in violation of Sherman Act). Viewed in the light most favorable to her, Dr. Boczar’s evidence: (1) showed that the “conspiracy alleged is ... one that would inure to the defendants’ economic benefit;” (2) “tend[ed] to exclude the possibility that the alleged co-conspirators acted independently and in a manner consistent with rational business objectives;” and, (3) showed the conspiracy had an “anti-competitive effect.” See id. at 819-20. The jury could have inferred the existence of an unlawful combination or conspiracy between the hospital and members of its staff or peer review committees. See id.; cf. Todorov v. DCH Healthcare Auth., 921 F.2d 1438, 1457 (11th Cir.1991) (affirming summary judgment for defendants where physician failed to disprove that hospital acted unilaterally to promote its independent, competitive interest). (1) Evidence of Economic Benefit Like the defendant in Bolt, cf. 891 F.2d at 820, Manatee Hospital argues that it recruited Boczar to bring in patients and revenue and so had no economic reason to take away her privileges. But we think that a jury could reasonably find from the evidence that, although the hospital had recruited Boczar for rational business reasons, the hospital later came to view Dr. Boczar’s practice, through no real fault of hers, as inconsistent with its interests. When Dr. Boczar joined its staff, Manatee Hospital had suffered defections by members of its ob/gyn staff and feared still more ob/ gyn departures to a competing hospital. More than half of the remaining ob/gyn specialists, Dr. Boczar’s most direct competitors, openly opposed granting Dr. Boczar and her group privileges on the stated basis of the commuting distance between Sarasota and Bradenton and their .accounts of Dr. Boczar’s interpersonal disputes" }, { "docid": "7196930", "title": "", "text": "S.Ct. 1348, 89 L.Ed.2d 538 (1986) (“To survive petitioners’ motion for summary judgment, respondents must establish that there is a genuine issue of material fact as to whether petitioners entered into an illegal conspiracy that caused respondents to suffer a cognizable injury.”). Sometimes the second element is conclusively presumed once the first is proved; certain types of trade- restraining agreements, such as horizontal price-fixing ones like Omnieare alleges here, are considered per se unreasonable. See, e.g., Tri-Gen, 433 F.3d at 1032. Omnicare was unable to reap the benefit of the presumption, however, because the district court concluded that Omnicare’s case faltered at the first stage. It granted Defendants’ motion for summary judgment after finding that “Omnieare has failed to produce evidence of action by United-Health and PacifiCare that is inconsistent with lawful conduct on the part of two competing entities engaged in legitimate merger discussions and planning.” Omnicare, Inc. v. UnitedHealth Group, Inc., 594 F.Supp.2d 945, 974 (N.D.Ill.2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (noting that summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial”). To show concerted action, antitrust plaintiffs must produce evidence that would allow a jury to infer that the alleged conspirators “had a conscious commitment to a common scheme designed to achieve an unlawful objective.” Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984). That is, the circumstances of the case must reveal “a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement.” Am. Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946). Two separate economic decisionmakers must be joined, “deprivfing] the marketplace of independent centers of decision-making and therefore of a diversity of entrepreneurial interests.” Am. Needle, Inc. v. Nat'l Football League, — U.S. -, 130 S.Ct. 2201, 2212," }, { "docid": "8392828", "title": "", "text": "or disciplinary proceedings as privileged in the context of a malpractice action will generally have little impact upon the plaintiffs ability to prove a meritorious claim. For the crucial issue in that type of case is not what occurred at the review proceeding, but whether the defendant was in fact negligent in his care and treatment of the plaintiff.”). There is no evidence that state legislatures considered the potential impact on discrimination cases of a privilege for medical peer review proceedings. Thus, the states’ policy decisions, reflecting different concerns than those implicated here, do not inform the judgment of this court in this case. Weighing further against recognizing a privilege here is that, in contrast to a medical malpractice or defamation action, if a plaintiff succeeds in a discrimination case, he advances important public interests in addition to his personal interests. Cf. id. (refusing to recognize a privilege for medical disciplinary proceedings in an antitrust case and observing that if the plaintiff was successful in proving his claim, he would “vindicate not only his own right to practice medicine ..., but also the strong public interest in open and fair competition which is embodied in the Sherman Act under which the case arises”). B. We should not recognize a privilege “where it appears that Congress has considered the relevant competing concerns but has not provided the privilege itself.” University of Pa., 493 U.S. at 189, 110 S.Ct. 577. The district court below found that Congress had considered and rejected a privilege for medical peer review materials when it enacted the Health Care Quality Improvement Act of 1986 (“HCQIA”), 42 U.S.C.A. §§ 11101-11152 (West 1995). Novant argues that this finding is in error, and that, to the contrary, Congress favors a medical review privilege. Although we cannot conclude that Congress actually considered and rejected a privilege for medical review materials when enacting the HCQIA, it is clear that Congress considered the relevant competing interests — providing incentive and protection to physicians who would serve on review committees versus allowing putative victims of discrimination to pursue their claims' — and decided to" }, { "docid": "13747439", "title": "", "text": "error, made all the more troubling by the fact that Das and Levin saw the LAD; indeed, Poliner described the LAD as obvious and clear in his addendum. The concerns that flow from the LAD are amplified by the problems with Poliner’s other patients that had been brought to Knochel’s attention. It was in relatively quick succession that Knoehel was presented with separate cases that called into question Poliner’s medical judgment. That Poliner had over 20 years of experience and an apparently clean record before these cases only serves to heighten the concern: why was this experienced physician now having these problems? On May 14, there was ample basis for concern. The ad hoc committee’s review, upon which the extension of the abeyance rested, speaks for itself. A group of six cardiologists reviewed 44 of Poliner’s cases and concluded that he gave substandard care in more than half of the cases. We conclude that, as to both peer review actions, the belief that temporarily restricting Poliner’s cath lab privileges during an investigation would further quality health care was objectively reasonable. Poliner defends the jury’s verdict by arguing that the evidence demonstrates that had Poliner “actually administered the purported ‘care’ demanded by the critics, he would have affirmatively endangered his patients.” Setting aside the fact that the evidence is not so unequivocal, this argument suffers from two interrelated flaws. First, our inquiry focuses on the information available to Defendants when they made the critical decisions. Defendants did not have the benefit of post-hoc expert analyses at that time. Second, this focuses on whether Defendants’ beliefs proved to be right But the statute does not ask that question; rather it asks if the beliefs of Poliner’s peers were objectively reasonable under the facts they had at the time. If a doctor unhappy with peer review could defeat HCQIA immunity simply by later presenting the testimony of other doctors of a different view from the peer reviewers, or that his treatment decisions proved to be “right” in their view, HCQIA immunity would be a hollow shield. Poliner’s urging of purported bad motives or" }, { "docid": "3139879", "title": "", "text": "an unlawful arrangement” is sufficient). Monitoring the competence of physicians through peer review is clearly in the public interest, Lie v. St. Joseph Hosp., 964 F.2d 567, 570 (6th Cir.1992), and revocation of a physician’s privileges because of legitimate concerns about the quality of patient care that he rendered is obviously a lawful objective. Willman contends, however, that the peer review proceedings were a “sham” and that his privileges were terminated to prevent him from competing with the defendants rather than because of concerns about substandard patient care. We first consider Willman’s argument that there is a genuine issue of fact concerning whether the peer review process was a sham. Specifically, Willman contends that the evidence “creates a genuine issue as to whether the peer reviewers reached the wrong result, and, as a consequence, removed a qualified physician.” Based upon the record, we agree with Willman that whether he is a competent physician is in dispute. We do not agree, however, that this factual issue precludes summary judgment. An antitrust action is not the proper forum in which to evaluate a physician’s competence. Oksanen, 945 F.2d at 711 (“[t]he antitrust laws were not intended to inhibit hospitals from promoting quality patient care through peer review nor were the laws intended as a vehicle for converting business tort claims into antitrust causes of action.”). Accordingly, whether Willman actually provided substandard care is not the proper question. Rather, we must decide whether Willman’s peer reviewers could have reasonably concluded that he provided substandard care. Although the record contains evidence from physicians to the effect that in their opinion Willman had provided acceptable care, we nevertheless conclude that it would not have been unreasonable for Willman’s peer reviewers to have doubts about the quality of Willman’s patient care. Physicians who were not affiliated with the hospital defendants and who did not practice in St. Joseph and therefore did not compete with Willman agreed that in some cases Willman had rendered care that was below the acceptable standard. For example, Dr. Ben MeCallister, a board-certified internist and cardiologist, reviewed the charts of nine of" } ]

[ { "docid": "2746310", "title": "", "text": "parte prosecution of the DeGeorge ’733 application and any patent issuing on that DeGeorge application. In light of our determination that the ’670 application is enabling, and Bernier’s concession of priority if DeGeorge is indeed entitled to the date of that application, DeGeorge is entitled to priority. We will not review the board’s determination on conception. Though proper inventor-ship may be the subject of future prosecution, it is not ancillary to priority. Coleman v. Dines, 754 F.2d 353, 361, 224 USPQ 857, 863 (Fed.Cir.1985); Morgan v. Hirsch, 728 F.2d 1449, 1452-53, 221 USPQ 193, 195 (Fed.Cir.1984); Case v. CPC International, Inc., 730 F.2d 745, 749, 221 USPQ 196, 200 (Fed.Cir.), cert. denied, — U.S. -, 105 S.Ct. 223, 83 L.Ed.2d 152 (1984). Conclusion The decision of the board is reversed on the enablement and best mode issues; it is vacated on the conception issue. Priority on all counts is awarded to DeGeorge. REVERSED IN PART; VACATED IN PART. . To obtain the benefit of a parent filing date under 35 U.S.C. § 120, the invention must be disclosed in the parent application \"in the manner provided, by the first paragraph of § 112.” The first paragraph of 35 U.S.C. § 112 states: \"The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most clearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.” . Claims during prosecution, reissue and reexamination are also given the broadest reasonable interpretation possible, consistent with the specification. See, e.g., In re Yamamoto, 740 F.2d 1569, 222 USPQ 934 (Fed.Cir.1984). That approach does not apply, however, during litigation of issued claims, where the specification and file history should be resorted to in ascertaining the claims true meaning, Lemelson v. United States, 752 F.2d 1538, 1549, 224 USPQ 526, 532 (Fed.Cir.1985); Caterpillar Tractor Co. v. Berco," } ]

[ { "docid": "11427345", "title": "", "text": "presumption of validity. 35 U.S.C. § 282. Persons seeking to invalidate a patent must satisfy the burden of proving prior public use with evidence that is clear and convincing. Buildex Inc. v. Kason Indus., Inc., 849 F.2d 1461, 1463, 7 U.S.P.Q.2d 1325, 1326-27 (Fed.Cir.1988) This burden also applies to anyone seeking summary judgment. Cable Elec. Prods., Inc. v. Genmark, Inc., 770 F.2d 1015, 1022, 226 U.S.P.Q. 881, 884 (Fed.Cir.1985). B. The one-year bar under 35 U.S.C. § 102(b) 1. The Doctrine of Relation Back Continuation-in-Part applications allow an applicant to avoid filing a new patent by filing a subsequent application which repeats a substantial portion or all of the parent application, but also introduces new material, which is supported by and inherent in the parent application. Litton Systems, Inc. v. Whirlpool Corp., 728 F.2d 1423, 1436-37, 221 U.S.P.Q. 97, 105 (Fed.Cir.1984) 35 U.S.C. § 120 permits a CIP application to “relate back” to the filing date of the parent application if the parent discloses the invention claimed in the CIP in full, clear, concise and exact terms sufficient to enable one skilled in the art to make and use the same, under 35 U.S.C. § 112, first paragraph, which provides: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or urith which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention. 35 U.S.C. § 112, first paragraph (1984) (emphasis added) In this case, Sanders abandoned its parent application and filed a CIP application on December 29, 1987. BAI asserts that the ’062 patent is unenforceable because the patent is invalid under 35 U.S.C. § 102(b). Section 102(b) bars entitlement to a patent if the “invention was ... in public use or on sale in this country, more than one year prior to the date of the application for patent" }, { "docid": "5163388", "title": "", "text": "Bannister identified the expected ratios of each of the expected products of Geurts Example 6 in his final material using HPLC and confirmatory mass spec and NMR analysis. Tr. at 1094:4-1095:6, 1103:15-1104:9 (Bannister). Dr. Bannister also found that, through each of his analytical techniques, 3-isobutylGABA did not appear in any of his experimental samples, such that the Geurts reference does not “necessarily and inevitably” produce this compound. Thus, claim 2 of the '819 Patent is not invalid as inherently anticipated by the Geurts reference. See AstraZeneca LP, 633 F.3d at 1055; Schering, 339 F.3d at 1378. C. Priority & Enablement The parties contest the priority date to which claims 1, 2, and 4 of the '819 Patent and claim 1 of the '175 Patent are entitled. For the reasons that follow, the court finds that the asserted claims of the '819 Patent and claim 1 of the '175 Patent are entitled to priority filing dates of November 27, 1990. For the purpose of clarity, the court evaluates the priority date of each patent separately below and, in each section, addresses the impact of those priority dates on the defendants’ validity defenses, which the court rejects based on its priority findings. 1. The Legal Standard To establish that an asserted claim of a patent-in-suit is entitled to the priority filing date of an earlier parent application, the application must provide a sufficient disclosure of the claimed invention under 35 U.S.C. § 112. Waldemar Link v. Osteonics Corp., 32 F.3d 556, 558 (Fed.Cir.1994). Section 112 requires the application’s disclosure to describe the claimed invention and enable a person of ordinary skill in the art to make and use it. See Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1342-55 (Fed.Cir.2010) (en banc). To satisfy the enablement requirement of § 112, the disclosure in a parent application, coupled with the knowledge generally available in the art at that time, must enable a person skilled in the art to make and use the claimed invention without “undue experimentation” as of the filing date of the earlier application. In re Wands, 858" }, { "docid": "11427348", "title": "", "text": "of the filing date [of the original application], he or she was in possession of ... whatever is now claimed” in the patent. Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1560, 19 U.S.P.Q.2d 1111, 1117 (Fed.Cir.1991). The invention claimed in the CIP application does not have to be described in ipsis verbis in the parent application to satisfy § 112. Wagoner v. Barger, 59 C.C.P.A 1213, 463 F.2d 1377, 1380, 175 U.S.P.Q. 85, 86 (1972). Whether the parent specification comes close enough to comply with the description requirement of § 112 must be determined on a case-by-case basis, and whether the written description requirement has been met is a question of fact. Ralston Purina Co. v. Far-Mar-Co., Inc., 772 F.2d 1570, 1575, 227 U.S.P.Q. 177, 179 (Fed.Cir.1985). Because a CIP application adds new matter, such an application may generate two filing dates applicable to different parts of the same patent. Litton Systems, 728 F.2d at 1438, 221 U.S.P.Q. at 106. Any claims with new matter not inherent or finding support in the parent application are not entitled to the benefit of the parent application filing date. Id. New matter is defined as matter involving a departure from or in addition to the original disclosure. 37 C.F.R. § 1.118. Defendant Bonneville Artemia, as the challenger of the validity of the patent based on inadequate disclosure in the parent application for the claims in the CIP application, bears the same burden of persuasion as does any other patent challenger. Ralston Purina, 772 F.2d at 1573, 227 U.S.P.Q. at 178. 2. Applicability of the Doctrine of Relation Back to claims in the Sanders Patent Defendant urges that numerous significant changes in the CIP constitute “new matter.” a — “Sldmming” Device Defendant argues' that the language in the parent application referring to “skimming” devices was altered to include any “funnel” capable of receiving a slurry of eggs and water in a controlled manner. In a “red-line” version of the CIP application, which highlights matter which was added and strikes-out matter removed from the parent application, it is apparent that numerous references to “skimming device,”" }, { "docid": "5163439", "title": "", "text": "on this finding. 1. Legal Standard To establish that an asserted claim of a patent-in-suit is entitled to a priority filing date of an earlier parent application, the patentee has the burden of proving that the written description in that earlier application supports the later-filed claim. See Tech. Licensing Corp. v. Videotek, 545 F.3d 1316, 1327 (Fed.Cir.2008). Continuation-in-part patent applications are entitled to the priority date of the parent application for those claims that have an adequate written description in the parent application. See Go Med. Indus. Pty., Ltd. v. Inmed Corp., 471 F.3d 1264, 1270 (Fed.Cir.2006). To comply with the written description requirement of 35 U.S.C. § 112, the patent disclosure must convey with reasonable clarity to a person of ordinary skill in the art that the inventor was in possession of the claimed invention at the time of the earlier application. See Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed.Cir.2010) (en banc). The test for “reasonable conveyance” is a flexible one, “requiring] an objective inquiry into the four corners of the specification from the perspective of a person of ordinary skill in the art” to determine whether, by reading the original disclosure, that person could “immediately discern the limitation at issue in the claims.” Id.; see also Purdue Pharma L.P. v. Faulding, Inc., 230 F.3d 1320, 1323 (Fed.Cir.2000). Importantly, however, in haec verba disclosures using the same language of the claim are not required. Ariad Pharms., Inc., 598 F.3d at 1352. Moreover, the application “does not have to describe exactly the subject matter claimed.” See Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563-64 (Fed.Cir.1991). Rather, the requirement is met if a person of ordinary skill in the art would find it is “reasonably clear what the invention is and that the patent specification conveys that meaning.” All Dental Prods., L.L.C. v. Advantage Dental Prods., Inc., 309 F.3d 774, 779 (Fed.Cir.2002). To this end, “a description that merely renders the invention obvious does not satisfy the requirement” and support in the written description must be based on what actually is disclosed, not on an" }, { "docid": "18585765", "title": "", "text": "Utter from filing the present appeal. II. Priority Award A. 35 U.S.C. § 112 Hiraga obtained the benefit of his Japanese filing date under 35 U.S.C. § 119, and priority in the ’068 interference, because the board concluded that his Japanese application complied with the enablement and written description requirements of 35 U.S. C. § 112 ¶ 1 as to the subject matter of the ’068 interference count. See Cross v. Iizuka, 753 F.2d 1040, 1043 n. 5, 224 USPQ 739, 741 n. 5 (Fed.Cir.1985); Kawai v. Metlesics, 480 F.2d 880, 881, 178 USPQ 158, 159 (CCPA 1973). Utter argues that the board erred in “ignoring” Hiraga’s burden to prove that his disclosure met those requirements, and in holding that Hiraga’s Japanese and United States applications did meet them. 1. Burden of Proof Utter says the examiner, in suggesting that Hiraga add to his application the broad claim corresponding to the ’068 interference count, “erroneously relieved Hiraga of the burden of showing his right to make that broad claim.” Utter says the board compounded that error by not mentioning any burden of proof in its opinion. We agree that Hiraga had the burden to show support for the ’068 interference count. A party who, like Hiraga, relies on an earlier-filed application under 35 U.S.C. §§ 119 or 120 has the burden to show that the foreign or parent application supports later-added claims under 35 U.S.C. § 112 ti 1, regardless of whether that party is the junior or senior party in an interference. Ralston Purina Co. v. Far-Mar-Co, Inc., 772 F.2d 1570, 1574 n. 2, 227 USPQ 177, 178 n. 2 (Fed.Cir.1985); Wagoner v. Barger, 463 F.2d 1377, 1380, 175 USPQ 85, 87 (CCPA 1972). Because the board’s findings and conclusions are supportable under that standard, however, the board’s failure to discuss burdens of proof is not material. Cf. 28 U.S.C. § 2111 (courts of appeal shall disregard harmless errors). 2. Enablement We review the enablement aspect of 35 U.S.C. § 112 II1 as a question of law. Atlas Powder Co. v. E.I. Du Pont De Nemours & Co., 750" }, { "docid": "20863435", "title": "", "text": "court finds the Certificate of Correction is valid, and Hospira infringes the RE'071 Patent. 2. Written Description Hospira argues that, if the Certificate of Correction is valid, the RE'071 Patent is still invalid for failing the written description requirement imposed by § 112. To satisfy the written description requirement, the application must show that, as of the filing date, the applicants were “in possession of the invention” in question. See Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563-64 (Fed.Cir.1991). “[T]he test for sufficiency is whether the disclosure of the application relied upon reasonably conveys to those skilled in the art that the inventor-had possession of the claimed subject matter as of the filing date.” Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed.Cir.2010) (emphasis added). Although an exact definition of “possession” can be elusive, in essence, “the specification must describe an invention understandable to [a] skilled artisan and show that the inventor actually invented the invention claimed.” Id. To this end, support in the written description must be based on what actually is disclosed, and not on an obvious variant of what is disclosed. See id. at 1352 (citing Lockwood v. Am. Airlines, Inc., 107 F.3d 1565, 1571-72 (Fed.Cir.1997)). Whether the written description requirement is met is a question of fact. Id. at 1351 (citing Ralston Purina Co. v. Far-Mar-Co, Inc., 772 F.2d 1570, 1575 (Fed.Cir.1985)). The party challenging the sufficiency of a written description must establish by clear and convincing evidence that the claim is invalid or not entitled to an asserted filing date. See Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1329-30 (Fed.Cir. 2008). Hospira contends that one skilled in the art, reading the specification, would not know that the inventors were in possession of the D-asparagine daptomycin as of the filing date because the chemical structure indicated that L-asparagine compound was the subject of the invention. Hospira’s argument rests, however, on the same flawed premise discussed above in the context of the Certificate of Correction. While it is true that Formula 3 (containing L-asparagine) would not have reasonably conveyed that the" }, { "docid": "4308579", "title": "", "text": "the statutory language of section 101 may nonetheless lack sufficient concrete disclosure to warrant a patent. In section 112, the Patent Act provides powerful tools to weed out claims that may present a vague or indefinite disclosure of the invention. Thus, a patent that presents a process sufficient to pass the coarse eligibility filter may nonetheless be invalid as indefinite because the invention would “not provide sufficient particularity and clarity to inform skilled artisans of the bounds of the claim.” Star Scientific., Inc. v. R.J. Reynolds Tobacco Co., 537 F.3d 1357, 1371 (Fed.Cir.2008). That same subject matter might also be so conceptual that the written description does not enable a person of ordinary skill in the art to replicate the process. Accordingly, this court reverses the district court’s summary judgment that the '310 and '228 patents do not claim patent-eligible inventions. Y The Patent Act provides: “An application for patent for an invention disclosed in the manner provided by the first paragraph of this title in an application previously filed in the United States ... shall have the same effect, as to such invention, as though filed on the date of the prior application.\" 35 U.S.C. § 120. To obtain the benefit of a parent application’s filing date under section 120, “the claims of the later-filed application must be supported by the written description in the parent ‘in sufficient detail that one skilled in the art can clearly conclude that the inventor invented the claimed invention as of the filing date sought.’ ” Anascape, Ltd. v. Nintendo of Am., Inc., 601 F.3d 1333, 1335 (Fed.Cir.2010) (quoting Lockwood v. Am. Airlines, Inc., 107 F.3d 1565, 1572 (Fed.Cir.1997)). Entitlement to a filing date extends only to subject matter that is disclosed; not to that which is obvious. Lockwood, 107 F.3d at 1571-72. Therefore, the parent application must actually or inherently disclose the elements of the later-filed claims. PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299, 1306 (Fed.Cir.2008). On appeal, RCT challenges the district court’s determination that claims 4 and 63 of the '772 patent are not entitled to claim the benefit" }, { "docid": "14230432", "title": "", "text": "vis-a-vis the subject matter of the appealed claim; if it does, then the claim is entitled to the filing date of the parent application under 35 U.S.C. § 120.” Id. at 1351. 13. In re Herschler, 591 F.2d 693 (CCPA 1979). “[A]ppellant concedes that the substance of this rejection is proper if the court finds either the great-grandparent application lacks a written description of the instant invention.” Id. at 699. 14. In re Rasmussen, 650 F.2d 1212 (CCPA 1981). “The proper basis for rejection of a claim amended to recite elements thought to be without support in the original disclosure, therefore, is § 112, first paragraph, not § 132. The latter section prohibits addition of new matter to the original disclosure. It is properly employed as a basis for objection to amendments to the abstract, specifications, or drawings attempting to add new disclosure to that originally presented.” Id. at 1214-15. Federal Circuit 1. In re Kaslow, 707 F.2d 1366 (Fed.Cir.1983). “The test for determining compliance with the written description requirement is whether the disclosure of the application as originally filed reasonably conveys to the artisan that the inventor had possession at that time of the later claimed subject matter, rather than the presence or absence of literal support in the specification for the claim language.” Id. at 1375. 2. Ralston Purina Co. v. Far-Mar-Co., 772 F.2d 1570 (Fed.Cir.1985). “[T]he test for sufficiency of support in a parent application is whether the disclosure of the application relied upon ‘reasonably conveys to the artisan that the inventor had possession at that time of the later claimed subject matter.’ ” Id. at 1575. 3. Kennecott Corp. v. Kyocera Int’l, Inc., 835 F.2d 1419 (Fed.Cir.1987). “The incorporation of the requirements of section 112 into section 120 ensures that the inventor had possession of the later-claimed invention on the filing date of the earlier application.” Id. at 1421. 4. Utter v. Hiraga, 845 F.2d 993 (Fed.Cir.1988). “Hiraga’s Japanese specification complies with the written description requirement of Section 112 if ‘the disclosure of the application as originally filed reasonably conveys to the artisan that [Hiraga] had" }, { "docid": "2863611", "title": "", "text": "Circuit Judge, concurring in the judgment of invalidity of the ‘313 patent. I believe that U.S. Patent No. 4,081,313 (’313 patent), a continuation-in-part of U.S. Patent No. 3,623,712 (’712 patent), failed to disclose the best mode for practicing the claimed invention. Inventors must update their best mode disclosure when filing a continuation-in-part which adds new matter pertinent to the best mode of practicing the invention claimed in the continuation-in-part. The inventors here did not do so, and the ’313 patent is invalid. In determining whether the ’313 patent is invalid because of a sale that predated the filing date by more than one year, 35 U.S.C. § 102(b) (1994), the district court found that the ’313 continuation-in-part application was enabled by the parent ’712 patent and was entitled to the filing date of that patent. Applied Materials Inc. v. Advanced Semiconductor Materials Am., Inc., 32 USPQ2d 1865, 1879-80, 1994 WL 362005 (N.D.Cal. 1994). The district court then held that the ’313 patent was invalid because the inventors added substantial new matter to the application but did not update the best mode for practicing the newly claimed invention. Id. at 1880-82. Relying on Transco Products Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed.Cir.1994), Applied Materials argues here that the inventors were not obligated to update the best mode disclosure of the ’313 patent because it was enabled by the ’712 patent. This court adopts that position. But a continuation application, which was at issue in Transco, is fundamentally different from a continuation-in-part, which is at issue here. To secure the benefit of the filing date of an earlier filed (“parent”) application, 35 U.S.C. § 120 requires that the claimed invention be disclosed in the manner provided by the first paragraph of section 112, which requires 1) a written description of the invention, 2) enablement, and 3) disclosure of the best mode for practicing the invention. Each of these disclosures is separately required before the later application is entitled to the filing date of the parent. See Transco, 38 F.3d at 556-57, 32 USPQ2d at 1081-82 (“[Sjection 120" }, { "docid": "19706399", "title": "", "text": "an administrative body. By statute, a patent is presumed valid. 35 U.S.C. § 282. The rationale for the presumption lies in the expertise of the PTO in making the technical factual determinations underlying the patent process. Brooktree Corp. v. Advanced Micro Devices, Inc., 977 F.2d 1555, 1574-75 (Fed.Cir.1992). A party challenging the validity of a patent has the burden of persuasion and must show clear and convincing evidence to prevail. Buildex Inc. v. Kason Indus., Inc., 849 F.2d 1461, 1463 (Fed.Cir.1988); Northern Telecom, Inc. v. Datapoint Corp., 908 F.2d 931 (Fed.Cir.1990) (§ 112 ease). This burden is “most formidable” when the party asserting invalidity relies only upon prior art considered by the PTO. Central Soya Co. v. Geo. A. Hormel & Co., 723 F.2d 1573, 1577 (Fed.Cir.1983). Nevertheless, “[t]he PTO’s decision to issue a patent is entitled to deference only to the extent that it is based on relevant facts and on correct principles of law.” Plastic Container Corp. v. Continental Plastics of Okla., Inc., 708 F.2d 1554, 1558 (10th Cir.1983). It is with these deferential principles in mind that the court reviews Biomet’s motion. C. The Relation Back of the Filing Date of the Claims of the ’262 The starting point for determining when a claim in a continuation-in-part application receives the effective filing date of the parent application is section 120 of title 35, United States Code. Section 120 allows the benefit of the earlier filing date when the subject matter of the claim is previously “disclosed in the manner provided by the first paragraph of section 112 of this title....” 35 U.S.C. § 120. Section 112, in turn, provides: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention____ 35" }, { "docid": "23598890", "title": "", "text": "The first sale of the SANDBLASTER heater encompassing the invention claimed in the ’879 patent occurred in September 1977, over a year prior to the ’879 patent application’s filing date of February 1,1979. Therefore, if claims 7 and 8 are to be saved from the bar, the specification of the ’077 patent must contain a disclosure of the subject matter of those claims. Smith states in its reply brief: The issue is whether the “otherwise imperforate” and “size relationship” limitations of claims 7 and 8 are supported by the disclosure of the original ’077 patent. If not, the claims are invalid as a matter of law under 35 U.S.C. § 102(b). Smith further says: This defense is not based on an adequacy of disclosure defense under § 112, although the two could be related. [Emphasis ours.]. We hold that Smith’s assertion as to the role of 35 U.S.C. § 112 in this type of § 102(b) defense is incorrect as a matter of law. Smith has the burden to prove that the district court was incorrect in holding that State was entitled to the benefit of its earlier filing date under 35 U.S.C. § 120, which provides in part: An applicant for patent for an invention disclosed in the manner provided by the first paragraph of section 112 of this title in an application previously filed in the United States ... by the same inventor shall have the same effect, as to such invention, as though filed on the date of the prior application____ [Emphasis ours.] For example, If matter added through amendment to a C-I-P application is deemed inherent in whatever the original parent application discloses, ... that matter also is entitled to the filing date of the original, parent application. [Litton Systems, Inc. v. Whirlpool Corp., 728 F.2d 1423, 1438, 221 USPQ 97, 106 (Fed.Cir.1984).] Therefore, to prevail, Smith must prove that the newly added matter in the C-I-P application was not adequately disclosed in the earlier application in the manner required by the first paragraph of § 112. Pennwalt Corp. v. Akzona Inc., 740 F.2d 1573, 1578," }, { "docid": "20166014", "title": "", "text": "to patentability is to discourage ‘the removal of inventions from the public domain which the public justifiably comes to believe are freely available.’ ” American Seating Co. v. USSC Group, Inc., 514 F.3d 1262, 1267 (Fed.Cir.2008) (quoting Bernhardt, L.L.C. v. Collezione Europa USA, Inc., 386 F.3d 1371, 1379 (Fed.Cir.2004)). The test for public use is “whether the purported use: (1) was accessible to the public; or (2) was commercially exploited.” Id. (quoting Invitrogen Corp. v. Biocrest Mfg., L.P., 424 F.3d 1374, 1380 (Fed.Cir.2005)). Whether a patent is invalid based on public use under § 102(b) is a question of law based on underlying questions of fact. Minnesota Mining & Mfg. v. Chemque, Inc., 303 F.3d 1294, 1301 (Fed.Cir.2002). 5. Enablement/Written Description The Patent Act requires that every patent must contain a written description and be enabled, as stated in 35 U.S.C. § 112 ¶ 1, which provides as follows: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention. In Ariad Pharmaceuticals, Inc. v. Eli Lilly and Company, the Federal Circuit made clear that the written description requirement is distinct from the enablement requirement, although the two “often rise and fall together.” 598 F.3d 1336, 1352 (Fed.Cir.2010). To satisfy the written description requirement, “the description ‘must clearly allow persons of ordinary skill in the art to recognize that [the inventor] invented what is claimed.’ ” Id. at 1351 (quoting In re Gosteli, 872 F.2d 1008, 1012 (Fed.Cir.1989)). “In other words, the test for sufficiency is whether the disclosure of the application relied upon reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date.” Id. (quoting Ralston Purina Co. v. Far-Mar-Co, Inc., 772 F.2d 1570, 1575" }, { "docid": "6215567", "title": "", "text": "Description NEC argues that the ’605 and ’513 patents are invalid for failure to comply with the written description requirement of 35 U.S.C. § 112, first paragraph, which states that [t]he specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art ... 35 U.S.C. § 112 (1988) (emphasis added). The standard for determining whether the written description requirement has been met has been stated as follows: Although [the applicant] does not have to describe exactly the subject matter claimed, ... the description must clearly allow persons of ordinary skill in the art to recognize that [he or she] invented what is claimed.... The test for sufficiency of support in a parent application is whether the disclosure of the application relied upon reasonably conveys to the artisan that the inventor had possession at that time of the later claimed subject matter. Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563, 19 USPQ2d 1111, 1116 (Fed.Cir.1991) (citations and quotations omitted). Whether the written description requirement has been met is a question of fact. Ralston Purina Co. v. Far-Mar-Co. Inc., 772 F.2d 1570, 1575, 227 USPQ 177, 179 (Fed.Cir.1985). Thus, we must determine whether substantial evidence supports the verdict that the written description requirement was met. According to NEC, the recitation of “support means for supporting the memory mo dule at an angle with respect to the printed circuit motherboard” was not supported by the original Clayton application, and therefore the claims in both patents are invalid. NEC notes that “support means” was not recited in the original claims, but was added by amendment. It alleges that the specification describes the leads of the memory modules as having only an electrical function, not a mechanical, support function. A patent specification is directed to one of ordinary skill in the art. In re Hayes Microcomputer Prods., Inc. Patent Litigation, 982 F.2d 1527, 1533, 25 USPQ2d 1241, 1245 (Fed.Cir.1992). It is also clear that “drawings alone may provide a" }, { "docid": "14230433", "title": "", "text": "the application as originally filed reasonably conveys to the artisan that the inventor had possession at that time of the later claimed subject matter, rather than the presence or absence of literal support in the specification for the claim language.” Id. at 1375. 2. Ralston Purina Co. v. Far-Mar-Co., 772 F.2d 1570 (Fed.Cir.1985). “[T]he test for sufficiency of support in a parent application is whether the disclosure of the application relied upon ‘reasonably conveys to the artisan that the inventor had possession at that time of the later claimed subject matter.’ ” Id. at 1575. 3. Kennecott Corp. v. Kyocera Int’l, Inc., 835 F.2d 1419 (Fed.Cir.1987). “The incorporation of the requirements of section 112 into section 120 ensures that the inventor had possession of the later-claimed invention on the filing date of the earlier application.” Id. at 1421. 4. Utter v. Hiraga, 845 F.2d 993 (Fed.Cir.1988). “Hiraga’s Japanese specification complies with the written description requirement of Section 112 if ‘the disclosure of the application as originally filed reasonably conveys to the artisan that [Hiraga] had possession at that time of the later claimed ['068 interference count] subject matter.’ ” Id. at 999. 5. Bigham v. Godtfredsen, 857 F.2d 1415 (Fed.Cir.1988). “This requirement applies to priority claims under 35 U.S.C. § 119.... The test is whether the disclosure of ‘halogen,’ exemplified by chloro, meets the requirements of § 112 as a writ ten description of the bromo and iodo species in the context of the specific invention at issue.” Id. at 1417. 6. United States Steel Corp. v. Phillips Petroleum Co., 865 F.2d 1247 (Fed.Cir.1989). “In the context of section 120, in this case, focusing on the filing date requires that the claim of the 851 patent be treated as though it were filed in 1953. Only if that claim would at that time have been correctly rejected for lack of support in the 1953 specification may the patentee be denied use of section 120 to predate the intervening reference to the '300 patent.” Id. at 1251. 7. In re Wright, 866 F.2d 422 (Fed.Cir.1989). “When the scope of a claim" }, { "docid": "11427347", "title": "", "text": "in the United States____” 35 U.S.C. § 102(b) (1984). Sanders’ first publicly used his harvesting device in October, 1986. To avoid a statutory bar under § 102(b), any new matter in the CIP application, which was filed on December 29, 1987, must “relate back” under 35 U.S.C. § 120 to the June 1, 1987 filing date of the parent application. Any new matter in the CIP that does not relate back to the parent application will be afforded the later filing date of December 29, 1987, with the consequence of being statutorily barred under § 102(b) because of prior use of the invention in October, 1986. For Sanders to be entitled to claim the benefit of the filing date of the parent application, June 1, 1987, its parent application must disclose the CIP invention in the manner required by 35 U.S.C. § 112, first paragraph. In re Berkman, 642 F.2d 427, 430, 209 U.S.P.Q. 45, 47 (C.C.P.A.1981). The test requires that the parent application “convey with reasonable clarity to those skilled in the art, as of the filing date [of the original application], he or she was in possession of ... whatever is now claimed” in the patent. Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1560, 19 U.S.P.Q.2d 1111, 1117 (Fed.Cir.1991). The invention claimed in the CIP application does not have to be described in ipsis verbis in the parent application to satisfy § 112. Wagoner v. Barger, 59 C.C.P.A 1213, 463 F.2d 1377, 1380, 175 U.S.P.Q. 85, 86 (1972). Whether the parent specification comes close enough to comply with the description requirement of § 112 must be determined on a case-by-case basis, and whether the written description requirement has been met is a question of fact. Ralston Purina Co. v. Far-Mar-Co., Inc., 772 F.2d 1570, 1575, 227 U.S.P.Q. 177, 179 (Fed.Cir.1985). Because a CIP application adds new matter, such an application may generate two filing dates applicable to different parts of the same patent. Litton Systems, 728 F.2d at 1438, 221 U.S.P.Q. at 106. Any claims with new matter not inherent or finding support in the parent application are" }, { "docid": "18585768", "title": "", "text": "unless the amount of experimentation is unduly extensive. Atlas Powder, 750 F.2d at 1576, 224 USPQ at 413. The board found Hiraga’s disclosure enabling. Utter points to nothing in the record which persuades us that the board’s conclusion was legally in error. 3. Written Description Although the question of whether Hiraga’s Japanese specification contains a sufficient disclosure under 35 U.S.C. § 112 111 is one of law, Kennecott Corp. v. Kyocera International Inc., 835 F.2d 1419, 1420, 5 USPQ2d 1194, 1195 (Fed.Cir.1987), petition for cert. filed, 56 U.S.L.W. 3684 (U.S. Mar. 21, 1988) (No. 87-1592), compliance with the written description aspect of that requirement is a question of fact. Ralston Purina Co., 772 F.2d at 1575, 227 USPQ at 179. We review the board’s findings of fact under the clearly erroneous standard. Coleman v. Dines, 754 F.2d 353, 356, 224 USPQ 857, 859 (Fed.Cir.1985). Utter makes much of Hiraga’s acknowl-edgement that he has never claimed the external pivot species and did not participate in the ’069 interference involving that species. The subject matter of the three interferences being patentably distinct, Utter says Hiraga was not entitled to make the generic ’068 count because he disclosed only one of the ’069 and ’071 species it encompassed. There is no inconsistency in awarding a generic count to one inventor, while awarding a patentably distinct species count to another, however. See Hester v. Allgeier, 687 F.2d 464, 215 USPQ 481 (CCPA 1982). The subject matter of the ’068 interference, was a generic count, not the internal and external pivot species. A specification may, within the meaning of 35 U.S.C. § 112 111, contain a written description of a broadly claimed invention without describing all species that claim encompasses. Ralston Purina Co., 772 F.2d at 1575, 227 USPQ at 179; In re Rasmussen, 650 F.2d 1212, 1215, 211 USPQ 323, 326 (CCPA 1981). Hiraga’s Japanese specification complies with the written description requirement of Section 112 if “the disclosure of the application as originally filed reasonably conveys to the artisan that [Hiraga] had possession at that time of the later claimed [’068 interference count] subject" }, { "docid": "20882244", "title": "", "text": "date of the 1981 parent application by claiming the escape mechanism without a written description of it in the divisional application filed in 1983, while simultaneously maintaining the escape mechanism as a trade secret. Hayes marketed the Hayes SmartModem in 1981, in which it implemented a software timer as the “timing means,” the structure of which VenTel asserts was held as a trade secret. The first paragraph of § 112 requires that [t]he specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art ... 35 U.S.C. § 112 (1988) (emphasis added). The standard for determining whether the written description requirement has been met has been stated as follows: Although [the applicant] does not have to describe exactly the subject matter claimed, ... the description must clearly allow persons of ordinary skill in the art to recognize that [he or she] invented what is claimed____ The test for sufficiency of support in a parent application is whether the disclosure of the application relied upon “reasonably conveys to the artisan that the inventor had possession at that time of the later claimed subject matter.” Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563, 19 USPQ2d 1111, 1116 (Fed.Cir.1991) (citations omitted). Whether the written description requirement has been met is a question of fact. Ralston Purina Co. v. Far-Mar-Co, Inc., 772 F.2d 1570, 1575, 227 USPQ 177, 179 (Fed.Cir.1985). Thus, we must determine whether substantial evidence supports the verdict that the disclosure adequately describes the invention of the challenged claims. Ven-Tel first argues that “timing means” refers to a software timer, the structure of which is not disclosed. Hayes responds that the specification adequately discloses timing means and refers to several statements in the specification. Hayes points out that the “Summary of the Invention” section recites that “[t]he present invention provides a full duplex intelligent modem wherein the decision making capability preferably resides in a microprocessor ...” ’302 patent, col. 2, lines 27-29 (emphasis added). Hayes also" }, { "docid": "23598891", "title": "", "text": "incorrect in holding that State was entitled to the benefit of its earlier filing date under 35 U.S.C. § 120, which provides in part: An applicant for patent for an invention disclosed in the manner provided by the first paragraph of section 112 of this title in an application previously filed in the United States ... by the same inventor shall have the same effect, as to such invention, as though filed on the date of the prior application____ [Emphasis ours.] For example, If matter added through amendment to a C-I-P application is deemed inherent in whatever the original parent application discloses, ... that matter also is entitled to the filing date of the original, parent application. [Litton Systems, Inc. v. Whirlpool Corp., 728 F.2d 1423, 1438, 221 USPQ 97, 106 (Fed.Cir.1984).] Therefore, to prevail, Smith must prove that the newly added matter in the C-I-P application was not adequately disclosed in the earlier application in the manner required by the first paragraph of § 112. Pennwalt Corp. v. Akzona Inc., 740 F.2d 1573, 1578, 222 USPQ 833, 836 (Fed.Cir. 1984). We find Smith’s argument unpersuasive and decline to reverse the district court’s reasoned analysis which fully analyzes the facts and holds claims 7 and 8 supported in the parent application. Infringement The parties agree that infringement hinges on whether Smith’s LIME TAMER water heater openings in the water inlet tube are positioned so that “multiple streams of water will be directed over and adjacent the bottom of the tank,” as recited in the claims in suit. Smith argues that “the incoming water is directed downwardly at an angle of about 45° to the horizontal, as well as being discharged vertically upward through a single outlet. The incoming water in the LIME TAMER heater which is directed downwardly, impinges or blasts directly on the lower head of the water heater to scrub the bottom of the tank.” In summary, Smith contends that since its heater directs water “downwardly” instead of “over and adjacent,” its structure is sufficiently distinguishable from the language of the claims, so as to preclude infringement. In" }, { "docid": "20166015", "title": "", "text": "and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention. In Ariad Pharmaceuticals, Inc. v. Eli Lilly and Company, the Federal Circuit made clear that the written description requirement is distinct from the enablement requirement, although the two “often rise and fall together.” 598 F.3d 1336, 1352 (Fed.Cir.2010). To satisfy the written description requirement, “the description ‘must clearly allow persons of ordinary skill in the art to recognize that [the inventor] invented what is claimed.’ ” Id. at 1351 (quoting In re Gosteli, 872 F.2d 1008, 1012 (Fed.Cir.1989)). “In other words, the test for sufficiency is whether the disclosure of the application relied upon reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date.” Id. (quoting Ralston Purina Co. v. Far-Mar-Co, Inc., 772 F.2d 1570, 1575 (Fed.Cir.1985)). The “test requires an objective inquiry into the four corners of the specification from the perspective of a person of ordinary skill in the art.” Id. To meet this requirement, “[a]n applicant is not required to describe in the specification every conceivable and possible future embodiment of his invention.” Cordis Corp. v. Medtronic AVE, Inc. 339 F.3d 1352, 1365 (Fed.Cir.2003) (quoting Rexnord Corp. v. Laitram Corp., 274 F.3d 1336, 1344 (Fed.Cir.2001)). Thus, “[a] specification may, within the meaning of 35 U.S.C. § 112 para. 1, contain a written description of a broadly claimed invention without describing all species that [the] claim encompasses.” Id. (quoting Utter v. Hiraga, 845 F.2d 993, 998 (Fed.Cir.1988)). Further, “[a] patent need not teach, and preferably omits, what is well known in the art.” Epistar Corp. v. International Trade Commission, 566 F.3d 1321, 1336 (Fed.Cir.2009) (quoting Spectrar-Physics, Inc. v. Coherent, Inc., 827 F.2d 1524, 1534 (Fed.Cir.1987)). The test for enablement is whether a person “skilled in the art, after reading the specification, could practice the claimed invention without undue experimentation.”" }, { "docid": "13817605", "title": "", "text": "F.3d 565, 568 (3d Cir.2002)). If the evidence is such that a reasonable jury could find in favor of the non-movant, JMOL is inappropriate. See Fed. R. Civ. Proc. 50(a). We may not substitute our view of the evidence or our credibility determinations for those of the jury. See Agrizap, 520 F.3d at 1342. The '594 patent is a member of a family of patents, each of which claims priority to an abandoned patent application filed in 1988, U.S. Ser. No. 07/241,410 (“the 1988 application”). “In order to gain the benefit of the filing date of an earlier application under 35 U.S.C. § 120, each application in the chain leading back to the earlier application must comply with the written description requirement of 35 U.S.C. § 112.” Lockwood v. Am. Airlines, Inc., 107 F.3d 1565, 1571 (Fed.Cir.1997). “[T]he test for sufficiency of support in a parent application is whether the disclosure of the application relied upon ‘reasonably conveys to the artisan that the inventor had possession at that time of the later claimed subject matter.’ ” Ralston Purina Co. v. Far-Mar-Co, Inc., 772 F.2d 1570, 1575 (Fed.Cir.1985) (quoting In re Kaslow, 707 F.2d 1366, 1375 (Fed.Cir.1983)). In other words, “the earlier application need not describe the claimed subject matter in precisely the same terms as found in the claims at issue.” Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1331 (Fed. Cir.2008). Whether the written description requirement is met is a question of fact. Wang Labs., Inc. v. Toshiba Corp., 993 F.2d 858, 865 (Fed.Cir.1993). Thus, we will uphold the jury’s finding that the '594 patent claims are adequately described by the 1988 patent application so long as that finding is supported by substantial evidence in the record. See United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir.1995) (reviewing the jury’s factual determination for substantial evidence). Lonza argues that substantial evidence does not support the jury’s finding that the '594 patent claims are entitled to the priority date of the 1988 application. The parties limit their arguments to independent claim 1 of the '594 patent. It reads: A" } ]

[ { "docid": "14201588", "title": "", "text": "Gabrielle’s access to education, we are not convinced that the school district’s response to known harassment was clearly unreasonable. Examining the school district’s response to the complained-of conduct, we agree with the district court’s conclusion that the school district’s actions were not so clearly unreasonable as to amount to deliberate indifference. As an initial matter, the school district can only be liable for harassment about which it has actual knowledge. Gabrielle argues that the school district had actual notice of Jason’s behavior as of August 31 (the first day of school), because Gabrielle testified that Jason began bothering her on the first day and because the teachers constantly supervise kindergartners and thus must have noticed this behavior. While it is certainly true that such young students are under near-constant supervision, Davis established that actual — not constructive — notice is the appropriate standard in peer-harassment cases. Davis, 526 U.S. at 646-47, 119 S.Ct. 1661. Courts, therefore, have focused on reports or observations in the record of inappropriate behavior to determine when school officials had actual notice. See Vance, 231 F.3d at 259 (notice requirement satisfied by student and parent’s reports to teachers and principal); Soper v. Hoben, 195 F.3d 845, 855 (6th Cir.1999) (defendants had actual notice of rape and sexual as sault only after incidents were reported to them); Murrell, 186 F.3d at 1247 (parent’s telephone call to principal about harassment was evidence of actual notice). Nothing in the record shows that Beacon Hill school officials observed or that anyone reported sexual behavior by Jason towards Gabrielle (or anyone else) before October 21. Thus, there is no evidence that the defendants had notice of any harassing conduct before this date. Once school officials have actual notice of sexual harassment, Davis imposes a duty to act. But as long as the school’s response is not “clearly unreasonable,” it cannot have acted with the requisite deliberate indifference to incur Title IX liability. Davis, 526 U.S. at 648-49, 119 S.Ct. 1661. According to Davis, this is not a mere reasonableness standard, nor does it require funding recipients to remedy peer harassment. Id." } ]

[ { "docid": "16454412", "title": "", "text": "provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). The Supreme Court has held Title IX provides a private cause of action against a recipient of federal funds for discrimination based on sex. Cannon v. Univ. of Chicago, 441 U.S. 677, 708-09, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). However, a recipient of federal funds may only be liable for damages arising from its own misconduct. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 640, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). For a public university “to incur liability under Title IX, it must be (1) deliberately indifferent (2) to known acts of discrimination (3) which occur under its control.” Shrum ex rel. Kelly v. Kluck, 249 F.3d 773, 782 (8th Cir.2001) (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290-91, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998) and Davis, 526 U.S. at 642, 119 S.Ct. 1661). Although sexual harassment and sexual abuse clearly constitute discrimination under Title IX, Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 75, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), a public university will only be “liable for situations in which it ‘exercises substantial control over both the harasser and the context in which the known harassment occurs.’ ” Shrum, 249 F.3d at 782 (quoting Davis, 526 U.S. at 646, 119 S.Ct. 1661). Specifically, the public university’s “deliberate indifference must either directly cause the abuse to occur or make students vulnerable to such abuse, and that abuse ‘must take place in a context subject to the [university’s] control.’” Id. (quoting Davis, 526 U.S. at 645, 119 S.Ct. 1661). See Gebser, 524 U.S. at 292-93, 118 S.Ct. 1989 (declaring “we will not hold a school district liable in damages under Title IX for a teacher’s sexual harassment of a student absent actual notice and deliberate indifference.”); Kinman v. Omaha Pub. Sch. Dist., 171 F.3d 607, 610" }, { "docid": "18071781", "title": "", "text": "to a complaint being made to the university about Stegall but Delgado makes nothing of this — in fact does not even mention it in her briefs. Two years before Stegall’s alleged harassment of Delgado, his dean, James Butterworth, Dean of the College of Fine Arts and Communications at the university, had investigated possible sexual harassment by unnamed members of the art faculty. Stegall was and is a member of the music department, however, and no harassment by music faculty had been reported. Butterworth responded to the allegations concerning the art department by recommending to the university’s president and provost the elimination of alcohol from social events sponsored by the department at which both teachers and students were present, the convening of meetings with current and incoming students to discuss the university’s rules on fraternization and harassment, and the distribution of copies of the rules to all faculty. The recommendations were adopted and implemented. Title IX prohibits sex discrimination in educational programs or activities supported by federal grants. 20 U.S.C. § 1681(a). The only remedy specified in the statute is the elimination of the federal funding, § 1682, but in Cannon v. University of Chicago, 441 U.S. 677, 717, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), the Supreme Court held that the statute by implication entitles a person injured by a violation to sue for damages. When, however, the claim for damages is based on the behavior of a teacher or of some other employee of the Title IX recipient, the plaintiff must prove that “an official of the [defendant educational institution] who at a minimum has authority to institute corrective measures ... has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.” Gebser v. Lago Vista Independent School District, 524 U.S. 274, 277, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998); see also id. at 290-91, 118 S.Ct. 1989; Davis v. Monroe County Board of Education, 526 U.S. 629, 642-43, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999); Gabrielle M. v. Park Forest-Chicago Heights, Illinois School Dist. 163, 315 F.3d 817, 821 (7th Cir.2003); Hayut v. State University of" }, { "docid": "13128383", "title": "", "text": "under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). When a claim for damages is based on the behavior of a teacher or of some other employee of the Title IX recipient, the plaintiff must prove that “an official of the [defendant educational institution] who at a minimum has authority to institute corrective measures ... has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.” Delgado v. Stegall, 367 F.3d 668, 671 (7th Cir.2004) (quoting Gebser v. Lago Vista Indep. School Dist., 524 U.S. 274, 277, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998)). Title IX was modeled after Title VI of the Civil Rights Act of 1964 (under which the Does assert discrimination claims as well). The statutes are parallel except that Title VI prohibits race discrimination, not sex discrimination, and applies to all programs receiving federal funds, not only education programs. See 42 U.S.C. § 2000d et seq.; Gebser, 524 U.S. at 286, 118 S.Ct. 1989. Because the two statutes largely operate in the same manner, both conditioning an offer of federal funding on a promise by the recipient not to discriminate, our discussion of the Does’ Title IX claim applies to their Title VI claims as well. See Cannon v. University of Chicago, 441 U.S. 677, 684-85, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). The Does also assert constitutional claims against the school district and school officials pursuant to 42 U.S.C. § 1983. To state a claim under section 1983, a plaintiff must allege two elements: (1) the alleged conduct was committed by a person acting under color of state law; and (2) the activity deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Case v. Milewski, 327 F.3d 564, 566 (7th Cir.2003); Gomez v. Toledo, 446 U.S. 635, 638, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980) (citing 42 U.S.C. § 1983). Here, the Does contend that the school district generally turned a blind eye to Smith’s abuse of African American boys and, as such, the school district denied John Doe equal" }, { "docid": "9983074", "title": "", "text": "reasonable inferences and facts in a light most favorable to the nonmoving party.” Watkins v. Ford Motor Co., 190 F.3d 1213, 1216 (11th Cir.1999) (citation omitted). III. EilSCUSSION A. Title IX Claim Title IX provides, in pertinent part, that “[n]o person ... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ....” 20 U.S.C. § 1681(a). The Supreme Court has recognized an implied private right of action under Title IX for cases involving intentional sexual discrimination, and it has held money damages are available in such lawsuits. Franklin v. Gwinnett County Public Schs., 503 U.S. 60, 65, 75, 112 S.Ct. 1028, 1032, 1038, 117 L.Ed.2d 208 (1992). The Court also has established that a teacher’s sexual harassment of a student constitutes actionable discrimination for the purposes of Title IX. Id. at 74-76, 112 S.Ct. at 1037-38; see also Davis, 233 F.3d at 1371. Our analysis in cases involving teacher-on-student sexual harassment is governed by the Supreme Court’s decision in Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). In Gebser, the Supreme Court held a school district will not be liable in damages under Title IX for teacher-on-student sexual harassment “unless an official of the school district who at a minimum has authority to institute corrective measures on the district’s behalf has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.” Id. at 277, 118 S.Ct. at 1993. The Court defined the deliberate indifference standard as “an official decision by the recipient [of federal funds] not to remedy the violation.” Id. at 290, 118 S.Ct. at 1999. Although it reached the correct conclusion, the district court relied on the legal standard applicable in Title IX claims based on student-on-student sexual harassment. The Supreme Court has applied a more rigorous standard when a Title IX plaintiff seeks damages against a school district for student-on-student harassment. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 650-53, 119 S.Ct." }, { "docid": "12022598", "title": "", "text": "improper conduct and failed to respond appropriately, the school district may be liable for sex discrimination. The standard the Hansens assert is incorrect. The Supreme Court has flatly rejected applying a “knew or should have known” standard to Title IX claims. Gebser, 524 U.S. at 277, 118 S.Ct. 1989. When a Title IX claim for damages against the educational institution is based on a teacher’s conduct, the plaintiff must prove that “an official of the school district who at a minimum has authority to institute corrective measures ... has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.” Id. (emphasis added); see also Delgado v. Stegall, 367 F.3d 668, 671 (7th Cir.2004). In Gebser, the Supreme Court considered the limits of a school district’s liability under Title IX, thoroughly analyzed the statute’s history and purpose, and expressly refused to impose liability on a school district unless it had actual knowledge of a teacher’s sexual harassment and acted with deliberate indifference to the misconduct. 524 U.S. at 288-93, 118 S.Ct. 1989. The Court rejected the use of both vicarious liability and constructive notice principles in Title IX cases. Id. at 285, 118 S.Ct. 1989. The Court reasoned that a school district’s liability under Title IX arose from “an official decision by the recipient not to remedy the violation,” id. at 290, 118 S.Ct. 1989, that is, where the school district’s own actions effectively “causefd]” the discrimination, id. at 291, 118 S.Ct. 1989. As such, a school district is subject to a private damages action only where it is deliberately indifferent to known acts of discrimination or harassment. Id. at 290-91, 118 S.Ct. 1989; see also Davis ex rel. LaShonda D. v. Monroe County Bd. of Educ., 526 U.S. 629, 642-43, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (discussing Gebser and stating that a school district could be liable under Title IX “by remaining deliberately indifferent to acts of teacher-student harassment of which it had actual knowledge”); Gabrielle M. v. Park Forest-Chi. Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 823 (7th Cir.2003). The Hansens cited our decision in Delgado" }, { "docid": "3279100", "title": "", "text": "1352, 1361 (6th Cir.1984). In the present case, Williams is seeking review of specific legal standards of liability. The appeal is as to questions of law embodied in the instruction. Therefore, because it is a question of law, the instructions are reviewed de novo. Since the instructions are reviewed as a whole to determine if the instructions adequately informed the jury, we have quoted them at length above. Title IX Claim Title IX provides that “No person ... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). This includes the duty not to discriminate on the basis of sex, which encompasses a teacher’s sexual harassment of a student. Gebser v. Lago Vista Independent School District, 524 U.S. 274, 282, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998)(citing Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 74-75, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992)). Title IX may be enforced through federal administrative agencies “through any means authorized by law” including termination of federal funding. Gebser, 524 U.S. at 280-81, 118 S.Ct. 1989. Title IX is also enforceable through an implied right of action where .monetary damages are available. Id. The parties agree that the leading cases addressing this claim are Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999), and Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). In Gebser, which involved the harassment of a student by a teacher, it was established by the 'Supreme Court that a school district can be held liable in damages for the sexual harassment if it is proven that the school district had actual notice and exhibited deliberate indifference to the alleged harassment. Id. at 292, 118 S.Ct. 1989. Gebser explained that deliberate indifference of a school district is shown where there is an official or other person with authority to take corrective action, who has “actual knowledge of [the abuse]," }, { "docid": "9983075", "title": "", "text": "by the Supreme Court’s decision in Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). In Gebser, the Supreme Court held a school district will not be liable in damages under Title IX for teacher-on-student sexual harassment “unless an official of the school district who at a minimum has authority to institute corrective measures on the district’s behalf has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.” Id. at 277, 118 S.Ct. at 1993. The Court defined the deliberate indifference standard as “an official decision by the recipient [of federal funds] not to remedy the violation.” Id. at 290, 118 S.Ct. at 1999. Although it reached the correct conclusion, the district court relied on the legal standard applicable in Title IX claims based on student-on-student sexual harassment. The Supreme Court has applied a more rigorous standard when a Title IX plaintiff seeks damages against a school district for student-on-student harassment. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 650-53, 119 S.Ct. 1661, 1675-76, 143 L.Ed.2d 839 (1999). The Court explained student-on-student harassment will rise to the level of actionable discrimination under Title IX only if the harassment is “sufficiently severe.” Id. at 650, 119 S.Ct. at 1674. The Court concluded that to prevail on a Title IX claim based on student-on-student harassment, the plaintiff must establish not only that the school district was deliberately indifferent to known acts of harassment, but also that the harassment was “so severe, pervasive, and objectively offensive that it denie[d] its victims the equal access to education that Title IX is designed to protect.” Id. at 650-52, 119 S.Ct. at 1675; see also Hawkins v. Sarasota County Sch. Bd., 322 F.3d 1279, 1285 (11th Cir.), reh’g. and reh’g en banc denied, 67 Fed. Appx. 590 (11th Cir.2003). Because this case involves teacher-on-student harassment, Appellants need not establish Blythe’s misconduct was “so severe, pervasive, and objectively offensive” that it denied Dustin equal access to educational programs or opportunities. Title IX plaintiffs, like Appellants, seeking to recover damages against a school district for" }, { "docid": "16132938", "title": "", "text": "breach of contract, and negligent supervision, and then we discuss the remaining claims. 1. Sexual Harassment a. Applicable Law Title IX provides a remedy to a student who is subjected to sexual harass ment by a teacher or professor at an educational institution receiving federal funds. Hayut v. State Univ. of N.Y., 352 F.3d 733, 749-50 (2d Cir.2003); see also Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 280, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). For an educational facility to be liable, however, the plaintiff must establish that a school official with “authority to address the alleged discrimination and to institute corrective measures” had “actual knowledge” of the discrimination and failed to adequately respond. Gebser, 524 U.S. at 290, 118 S.Ct. 1989. A school fails to adequately respond if it provides no response or if it provides a response that “amount[s] to deliberate indifference to discrimination.” Id. The school’s response to sex discrimination must be “clearly unreasonable” in light of known circumstances. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 648, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). In other respects, a Title IX sex discrimination claim requires the same kind of proof required in a Title VII sex discrimination claim. See Torres v. Pisano, 116 F.3d 625, 630 n. 3 (2d Cir.1997) (“We have held that Title VII principles apply in interpreting Title IX.”). Therefore, as under Title VII, a quid pro quo sexual harassment claim under Title IX requires proof of three elements: (1) the rejection of sexual advances; (2) a tangible school-related (as opposed to employment) consequence; and (3) a causal connection between the two. See Karibian v. Columbia Univ., 14 F.3d 773, 778 (2d Cir.1994). In the education context, a tangible consequence occurs when “some benefit or adverse action,” such as a change in a grade, is made to depend upon providing sexual favors to someone in authority. Wills v. Brown Univ., 184 F.3d 20, 25 (1st Cir.1999). Similarly, a Title IX hostile education environment claim is “governed by traditional Title VII ‘hostile environment’ jurisprudence.” Hayut, 352 F.3d at 744. A" }, { "docid": "21982099", "title": "", "text": "or activity receiving Federal financial assistance,” 20 U.S.C. § 1681(a), and thus “allows a student to assert a private cause of action against the recipient of the federal funding for the denial of access to education.” Miotto v. Yonkers Pub. Schs., 534 F.Supp.2d 422, 426 (S.D.N.Y.2008). It is undisputed that the NYCDOE receives federal funding for Title IX purposes and that it is properly named a defendant. (See Compl. ¶¶ 3-4). The Supreme Court has squarely addressed the issue of whether institutional actors such as the NYCDOE can be liable for damages under Title IX where a teacher sexually harasses a student. In Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), the Supreme Court held that a school district can be held liable in damages under Title IX in cases involving a teacher’s sexual harassment of a student. Id. at 74-75,112 S.Ct. 1028. Subsequently, in a case very similar to this one, the Supreme Court defined the contours of institutional liability in Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998), where a teacher had a sexual relationship with an eighth-grade student that was not reported to school officials and the student sued the school district under Title IX. Id. at 277-78, 118 S.Ct. 1989. The Court held, with respect to the school district, that “a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond.” Id. at 290, 118 S.Ct. 1989. In elaborating on what amounts to a failure to adequately respond, the Supreme Court held that the response must amount to “deliberate indifference” — or “an official decision by the recipient not to remedy the violation.” Id. at 290-91, 118 S.Ct. 1989. One year after Gebser, in Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999), the Supreme Court" }, { "docid": "7996237", "title": "", "text": "In order to enforce Title IX’s nondiscrimination mandate, an agency that disburses federal education funds must provide “notice to an ‘appropriate person’ and an opportunity to rectify any violation.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998) (quoting 20 U.S.C. § 1682). Relying on these requirements, the Supreme Court held in Gebser that damages may not be recovered under Title IX “for the sexual harassment of a student by one of the district’s teachers ... unless an official of the school district who at a minimum has authority to institute corrective measures on the district’s behalf has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.” Id. at 277. An “appropriate person” is “an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the ... [district’s] behalf.” Id. at 290, 118 S.Ct. 1989. “Actual notice” must amount to “actual knowledge of discrimination in the recipient’s programs.” Id. Further, “the response must amount to deliberate indifference to discrimination.... The premise, in other words, is an official decision by the recipient not to remedy the violation.” Id. Here, the district court instructed the jury in pertinent part as follows: In order for Jennifer Bostic to establish her Title IX claim against the Institutional Defendants, she has the burden of proving by a preponderance of the evidence that a school official with the power to take action to correct the discrimination had actual notice of the discrimination, and, further, that the Institutional Defendants then responded to that notice with deliberate indifference. ... An educational institution has “actual notice,” sometimes called “actual knowledge” of discrimination[,] if an appropriate person at the institution has knowledge of facts sufficiently indicating substantial danger to a student so that the institution can reasonably be said to be aware of the danger. An “appropriate person” is the type of school official I’ve referred to previously, namely one with the power to take action to correct the discrimination. A school principal who is entrusted with the responsibility and authority" }, { "docid": "5839681", "title": "", "text": "the Government and the recipient of funds.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). In Gebser, the Supreme Court explained that the contractual nature of Title IX requires that a funding recipient have notice that it may be liable for a monetary award, i.e., it must actually be aware of the discrimination and fail to remedy it. See id. at 287-88, 118 S.Ct. 1989. In other words, a school district may be held liable under Title IX “only for its own misconduct”; the implied damages remedy is available only when “the funding recipient engages in intentional conduct that violates the clear terms of the statute.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 640, 642, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). In accordance with these considerations, the Supreme Court has expressly rejected the use of “principles of respondeat superior or constructive notice” for imposing liability on a school district under Title IX. Gebser, 524 U.S. at 285, 118 S.Ct. 1989. Rather, the Court held in Gebser that “a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the [district’s] behalf has actual knowledge of discrimination” and is deliberately indifferent to it. Id. at 290, 118 S.Ct. 1989. As the Fifth Circuit phrased the test in a preGebser ruling, a school district can be liable for teacher-student sexual harassment under Title IX only if a school official who had actual knowledge of the abuse was invested by the school board with the duty to supervise the employee and the power to take action that would end such abuse and failed to do so. Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 660 (5th Cir.1997). The partial dissent asserts that the standard we apply is too strict and that the notice requirement is satisfied by actual notice of a substantial risk of ongoing sexual abuse. Gebser is quite clear, however, that Title IX liability may be" }, { "docid": "12022599", "title": "", "text": "the use of both vicarious liability and constructive notice principles in Title IX cases. Id. at 285, 118 S.Ct. 1989. The Court reasoned that a school district’s liability under Title IX arose from “an official decision by the recipient not to remedy the violation,” id. at 290, 118 S.Ct. 1989, that is, where the school district’s own actions effectively “causefd]” the discrimination, id. at 291, 118 S.Ct. 1989. As such, a school district is subject to a private damages action only where it is deliberately indifferent to known acts of discrimination or harassment. Id. at 290-91, 118 S.Ct. 1989; see also Davis ex rel. LaShonda D. v. Monroe County Bd. of Educ., 526 U.S. 629, 642-43, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (discussing Gebser and stating that a school district could be liable under Title IX “by remaining deliberately indifferent to acts of teacher-student harassment of which it had actual knowledge”); Gabrielle M. v. Park Forest-Chi. Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 823 (7th Cir.2003). The Hansens cited our decision in Delgado to support their position that something less than actual knowledge of a teacher’s misconduct will suffice as a predicate to Title IX liability. Their reliance on our opinion in that case is misplaced. In Delgado, we specifically stated that, under Gebser, a plaintiff in a Title IX damages suit based on a teacher’s behavior must prove both “actual knowledge of misconduct, not just actual knowledge of the risk of misconduct, and ... that the officials having that knowledge decided not to act on it.” 367 F.3d at 672. We noted that a school district need not possess actual knowledge of a teacher’s acts direct ed at a particular plaintiff, but it must still have actual knowledge of misconduct that would create risks “so great that they are almost certain to materialize if nothing is done.” Id. Thus, if a teacher had been known to be a “serial harasser,” a school district might be found to have actual knowledge of that teacher’s misconduct and that students may be at great risk. Id. Therefore, in order to" }, { "docid": "12022597", "title": "", "text": "enforce the statute, Cannon v. Univ. of Chi, 441 U.S. 677, 717, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), as well as the ability to recover monetary damages, Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). In enacting Title IX, Congress sought to hold educational institutions liable for their own misconduct, not for the misconduct of an employee. See, e.g., Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 289-90, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998); Smith v. Metro. Sch. Dist. Perry Twp., 128 F.3d 1014, 1018-19 (7th Cir.1997). That said, a teacher’s sexual harassment of a student may render a school district liable for sex discrimination under Title IX. Franklin, 503 U.S. at 75, 112 S.Ct. 1028; see also Metro. Sch. Dist. Perry Twp., 128 F.3d at 1021-22. The Hansens argue that the district court should have applied a “knew or should have known” standard to their Title IX claim, meaning that if HSE or HSSC knew or should have known of Alano’s improper conduct and failed to respond appropriately, the school district may be liable for sex discrimination. The standard the Hansens assert is incorrect. The Supreme Court has flatly rejected applying a “knew or should have known” standard to Title IX claims. Gebser, 524 U.S. at 277, 118 S.Ct. 1989. When a Title IX claim for damages against the educational institution is based on a teacher’s conduct, the plaintiff must prove that “an official of the school district who at a minimum has authority to institute corrective measures ... has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.” Id. (emphasis added); see also Delgado v. Stegall, 367 F.3d 668, 671 (7th Cir.2004). In Gebser, the Supreme Court considered the limits of a school district’s liability under Title IX, thoroughly analyzed the statute’s history and purpose, and expressly refused to impose liability on a school district unless it had actual knowledge of a teacher’s sexual harassment and acted with deliberate indifference to the misconduct. 524 U.S. at 288-93, 118 S.Ct. 1989. The Court rejected" }, { "docid": "3279101", "title": "", "text": "federal administrative agencies “through any means authorized by law” including termination of federal funding. Gebser, 524 U.S. at 280-81, 118 S.Ct. 1989. Title IX is also enforceable through an implied right of action where .monetary damages are available. Id. The parties agree that the leading cases addressing this claim are Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999), and Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). In Gebser, which involved the harassment of a student by a teacher, it was established by the 'Supreme Court that a school district can be held liable in damages for the sexual harassment if it is proven that the school district had actual notice and exhibited deliberate indifference to the alleged harassment. Id. at 292, 118 S.Ct. 1989. Gebser explained that deliberate indifference of a school district is shown where there is an official or other person with authority to take corrective action, who has “actual knowledge of [the abuse], and fails adequately to respond.” Id. at 290, 118 S.Ct. 1989. Further, the response must “amount to deliberate indifference.” Id. A year after Gebser, the Court addressed the liability of a school district under Title IX for student-on-student sexual harassment. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). Expanding on Gebser, the Court held that a similar right to sue arose under appropriate circumstances. The court eschewed any negligence or respondeat superior liability. Davis, 526 U.S. at 645, 119 S.Ct. 1661. Relying on its analysis in Gebser, the Court observed: “As noted above, the theory of Gebser was that the recipient was directly liable for its deliberate indiffer ence to discrimination.” Id. (emphasis in original). The Court further noted: School administrators will continue to enjoy the flexibility they require so long as funding recipients are deemed “deliberately indifferent” to acts of student-on-student harassment only where the recipient’s response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances. The dissent consistently" }, { "docid": "21982100", "title": "", "text": "Sch. Dist., 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998), where a teacher had a sexual relationship with an eighth-grade student that was not reported to school officials and the student sued the school district under Title IX. Id. at 277-78, 118 S.Ct. 1989. The Court held, with respect to the school district, that “a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond.” Id. at 290, 118 S.Ct. 1989. In elaborating on what amounts to a failure to adequately respond, the Supreme Court held that the response must amount to “deliberate indifference” — or “an official decision by the recipient not to remedy the violation.” Id. at 290-91, 118 S.Ct. 1989. One year after Gebser, in Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999), the Supreme Court extended damages liability for Title IX funding recipients to cases of student-on-student harassment, but only where the Title IX recipient acted with actual knowledge of acts of harassment and with deliberate indifference. The Davis Court elaborated on its decision in Gebser: “[In Gebser], we rejected the use of agency principles to impute liability to the district for the misconduct of its teachers. Likewise, we declined the invitation to impose liability under what amounted to a negligence standard— holding the district liable for its failure to react to teacher-student harassment of which it knew or should have known. Rather, we concluded that the district could be liable for damages only where the district itself intentionally acted in clear violation of Title IX by remaining deliberately indifferent to acts of teacher-student harassment of which it had actual knowledge.... [T]he misconduct of the teacher in Gebser was not ‘treated as the grant recipient’s actions.’ Liability arose, rather, from ‘an official decision by the recipient not to remedy the violation.’ By employing the ‘deliberate indifference’ theory ..., we concluded" }, { "docid": "1730735", "title": "", "text": "County Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), the court concluded that Title IX authorized a plaintiff to recover money damages from a school district. More recently, the court held that in a case of alleged teacher-student sexual harassment “that a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails to adequately respond. We think, moreover, that the response must amount to deliberate indifference to discrimination.” Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 1999, 141 L.Ed.2d 277 (1998). In that case the plaintiff sought both compensatory and punitive damages. Id. at 279, 118 S.Ct. 1989. The court followed Gebser in Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999), and allowed a claim for compensatory and punitive damages to go forward and concluded “that recipients of federal funding may be liable for ‘subjecting]’ their students to discrimination where the recipient is deliberately indifferent to known acts of student-on-student sexual harassment and the harasser is under the school’s disciplinary authority.” Id. at 646-47, 119 S.Ct. 1661. In a recent decision, the Ninth Circuit adopted the framework set out in Davis and set forth four requirements for imposition of school district liability under Title IX for student-student sexual harassment: (1) the school district “must exercise substantial control over both the harasser and the context in which the known harassment occurs”, (2) the plaintiff must suffer “sexual harassment ... that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school”, (3) the school district must have “actual knowledge of the harassment”, and (4) the school district’s “deliberate indifference subjects its students to harassment”. Reese v. Jefferson School District No. 14J, 208 F.3d 736, 739 (9th Cir.2000) (quoting Davis, 119 S.Ct. at 1672," }, { "docid": "18071783", "title": "", "text": "New York, 352 F.3d 733, 750-53 (2d Cir.2003). Western Illinois concedes that both Dean But-terworth and the chairman of the music department were officials clothed with the requisite authority. But it denies that either of them had actual notice of Stegall’s misconduct toward Nicole Delgado (or any other student — which Delgado, by failing to mention the incident ten years earlier, has in effect conceded) or was deliberately indifferent to that misconduct. Here a peculiarity of the Supreme Court’s formula should be noted. Ordinarily, actual notice and deliberate indifference are alternative paths to proving knowledge. Deliberate indifference means shutting one’s eyes to a risk one knows about but would prefer to ignore. Boncher v. Brown County, 272 F.3d 484, 486 (7th Cir.2001); Collignon v. Milwaukee County, 163 F.3d 982, 988 (7th Cir.1998); Griffin v. City of Opa-Locka, 261 F.3d 1295, 1314 (11th Cir.2001). It thus corresponds to the criminal definition of recklessness, Delaney v. DeTella, 256 F.3d 679, 686 (7th Cir.2001); Collignon v. Milwaukee County, supra, 163 F.3d at 988; Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.2003); Weaver v. Shadoan, 340 F.3d 398, 410 (6th Cir.2003), which the law treats as the equivalent of intentionality. TRW Title Ins. Co. v. Security Union Title Ins. Co., 153 F.3d 822, 828 (7th Cir.1998); United States v. Ladish Malting Co., 135 F.3d 484, 488 (7th Cir.1998); J.I. Case Credit Corp. v. First National Bank, 991 F.2d 1272, 1278 (7th Cir.1993); McGinty v. State, 193 F.3d 64, 69-70 (2d Cir.1999). For “if a person with a lurking suspicion goes on as before and avoids further knowledge, this may support an inference that he has deduced the truth and is simply trying to avoid giving the appearance (and incurring the consequences) of knowledge.” United States v. Ramsey, 785 F.2d 184, 189 (7th Cir.1986); see also United States v. Giovannetti, 919 F.2d 1223, 1226-29 (7th Cir.1990). But under the Supreme Court’s formula, the plaintiff in a Title IX damages suit based on a teacher’s behavior must prove actual knowledge of misconduct, not just actual knowledge of the risk of misconduct, and must also prove" }, { "docid": "18071782", "title": "", "text": "specified in the statute is the elimination of the federal funding, § 1682, but in Cannon v. University of Chicago, 441 U.S. 677, 717, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), the Supreme Court held that the statute by implication entitles a person injured by a violation to sue for damages. When, however, the claim for damages is based on the behavior of a teacher or of some other employee of the Title IX recipient, the plaintiff must prove that “an official of the [defendant educational institution] who at a minimum has authority to institute corrective measures ... has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.” Gebser v. Lago Vista Independent School District, 524 U.S. 274, 277, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998); see also id. at 290-91, 118 S.Ct. 1989; Davis v. Monroe County Board of Education, 526 U.S. 629, 642-43, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999); Gabrielle M. v. Park Forest-Chicago Heights, Illinois School Dist. 163, 315 F.3d 817, 821 (7th Cir.2003); Hayut v. State University of New York, 352 F.3d 733, 750-53 (2d Cir.2003). Western Illinois concedes that both Dean But-terworth and the chairman of the music department were officials clothed with the requisite authority. But it denies that either of them had actual notice of Stegall’s misconduct toward Nicole Delgado (or any other student — which Delgado, by failing to mention the incident ten years earlier, has in effect conceded) or was deliberately indifferent to that misconduct. Here a peculiarity of the Supreme Court’s formula should be noted. Ordinarily, actual notice and deliberate indifference are alternative paths to proving knowledge. Deliberate indifference means shutting one’s eyes to a risk one knows about but would prefer to ignore. Boncher v. Brown County, 272 F.3d 484, 486 (7th Cir.2001); Collignon v. Milwaukee County, 163 F.3d 982, 988 (7th Cir.1998); Griffin v. City of Opa-Locka, 261 F.3d 1295, 1314 (11th Cir.2001). It thus corresponds to the criminal definition of recklessness, Delaney v. DeTella, 256 F.3d 679, 686 (7th Cir.2001); Collignon v. Milwaukee County, supra, 163 F.3d at 988; Hernandez v. Keane, 341 F.3d" }, { "docid": "16473449", "title": "", "text": "as a defendant-appellee but has not filed a brief and can be ignored. Title IX prohibits sex discrimination in educational programs that receive federal financial assistance. 20 U.S.C. § 1681(a). Although the statute doesn’t mention a private right of action, the Supreme Court has held that such a right is implied, Cannon v. University of Chicago, 441 U.S. 677, 717, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), and entitles the sue eessful plaintiff to damages. Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). But as in cases under the Civil Rights Act of 1871, 42 U.S.C. § 1983, a school district sued in a private suit under Title IX cannot be held liable on the ground of respondeat superior for an employee’s violation of the statute. Gebser v. Lago Vista Independent School District, 524 U.S. 274, 285, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). The plaintiff must prove that “an official of the school district who at a minimum has authority to institute corrective measures ... has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.” Id. at 277, 118 S.Ct. 1989; see also id. at 290, 118 S.Ct. 1989. In Delgado v. Stegall, 367 F.3d 668, 672 (7th Cir.2004), we said with reference to the first of these requirements (and the only one we need discuss) — “actual notice” — that the plaintiff must prove “actual knowledge of misconduct, not just actual knowledge of the risk of misconduct.” See also Hansen v. Board of Trustees, 551 F.3d 599, 605 (7th Cir.2008); J.F.K. v. Troup County School District, 678 F.3d 1254, 1260 (11th Cir.2012). These are not perspicuous formulations. “Actual notice” and “deliberate indifference” are redundant, and “actual notice” and “actual knowledge” are not necessarily synonyms. What’s clear is that a school district’s liability must be personal rather than vicarious, but we need a clearer statement of the standard for holding officials liable than the statements we just quoted. The standard has gotten a lot of attention in civil rights cases under 42 U.S.C. § 1983, which generally apply," }, { "docid": "2473713", "title": "", "text": "Court has made it clear that sexual harassment is included within the meaning of “discrimination” under Title IX. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 281-82, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998); see also Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 75, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). The Supreme Court explained in Gebser, 524 U.S. at 290, 118 S.Ct. 1989, that Title IX damage actions which do not involve an institution’s official policy require a showing that “an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf [had] actual knowledge of discrimination in the recipient’s programs and fail[ed] adequately to respond.” According to the Court, this failure to respond or deliberate indifference standard is in “rough parallel” to the Title IX administrative enforcement scheme, which is based on “an official decision by the recipient not to remedy the violation.” Id.; see also 20 U.S.C. § 1682 (Title IX administrative enforcement). The Court saw “[c]omparable considerations” under Title IX to those underlying the deliberate indifference standard under § 1983. Gebser, 524 U.S. at 291, 118 S.Ct. 1989 (citing Bd. of Cnty. Commis. of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (deliberate indifference standard described as “stringent” and “requiring proof that [the official] disregarded a known or obvious consequence of his action”)). Educational institutions may be liable for deliberate indifference to known acts of harassment by one student against another. Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). To be actionable an institution’s deliberate indifference must either have caused the harassment or made students vulnerable to it. Id. at 644-45, 119 S.Ct. 1661. A plaintiff must show that the institution had “substantial control over both the harasser and the context in which the known harassment occurs.” Id. at 645, 119 S.Ct. 1661. In order to avoid deliberate indifference liability an institution “must merely respond to known peer harassment in" } ]

[ { "docid": "18554201", "title": "", "text": "a seventy-five month period at a rate of $2,000 a month. In December 1979, after a period of negotiations between Nancy and Peter, the court entered an amended decree. Under its terms, Nancy would receive $197,300 over a ten-year period. The debt was referred to in the decree as Nancy’s “marital and dower rights”. The payments were to cease upon Nancy’s death if her death occurred within the ten-year period. In March 1982, Peter Shaver filed a petition in bankruptcy. He asserts that the $197,300 debt owed to Nancy is a property settlement and is dischargeable in bankruptcy. Nancy Shaver instituted this action, contending that the debt is in the nature of alimony, maintenance, or support and is not dischargeable. II. The Bankruptcy Code of 1978 provides that an individual debtor does not receive a discharge from a debt owed “to a spouse, former spouse, or child ... for alimony to, maintenance for, or support of such spouse or child” if the debt is “actually in the nature of alimony, maintenance, or support”. 11 U.S.C. § 523(a)(5)(B) (1982). This section departs from the general policy of absolution, or “fresh start”, that is embodied in the federal Bankruptcy Act. It enforces an overriding public policy favoring the enforcement of familial obligations. See Comment, Putative Spousal Support Right and the Federal Bankruptcy Act, 25 U.C.L.A.L.Rev. 96 (1977); Note, Dissolution of Marriage and the Bankruptcy Act of 1973: “Fresh Start” Forgotten, 52 Ind.L.J. 469 (1977). Although Indiana law does not provide for alimony in the circumstances of this case, the bankruptcy court was not bound by the treatment of the obligation in Indiana courts. Because of the federal interests reflected in the Bankruptcy Act, the courts look to federal law to determine whether an obligation is “actually in the nature of ... support” and is therefore nondischargeable. Stout v. Prussel, 691 F.2d 859, 861 (9 Cir.1982). See Erspan v. Badgett, 647 F.2d 550 (5 Cir.1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982), in which the court stated that “regardless of how a state may choose to define ‘alimony’," } ]

[ { "docid": "12289823", "title": "", "text": "dispute.. They are described as follows: 1. $30,000 — -attorney fees owed to Elena Pino’s attorney; 2. $15,628 — “equalization payment”; 8. $3,231.49 — bill of Levitz furniture company; 4. $48,000 — unpaid mortgage payments to Norwest; 5. unknown deficiency amount from foreclosure of home in New Mexico; 6. $5,000 — to Elena for loan used to pay obligation to first wife. What the parties disagree on is whether the specified obligations fall within the “support or maintenance” provisions of 11 U.S.C. 523(a)(5) or the “property settlement” provisions of 11 U.S.C. 523(a)(15) and if under this latter section, whether the Debtor is entitled to discharge all or any of them. ANALYSIS I. Discussion — 11 U.S.C. § 523(a)(5): Section 523(a) of the Bankruptcy Code excepts certain categories of debts from a debtor’s discharge granted under section 727, 1141, 1228(a), 1228(b) or 1328(b). Among the debts rendered non discharge-able by this provision are marital obligations owed to a spouse, former spouse, or child of the Debtor incurred by the Debtor in the course of a divorce or separation. Specifically, § 523(a)(5) of the Code excepts from discharge any debt: to a spouse, former spouse, or child of the Debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 408(a)(3) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); or (B) such debts includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. 11 U.S.C. § 523(a)(5). Thus, under § 523(a)(5), a debt that is “actually in the nature of alimony, maintenance or support of a spouse," }, { "docid": "1257586", "title": "", "text": "the intention of the Georgia court in this case that determines whether payments are alimony, support or maintenance as distinguished from a property settlement. See Long, 794 F.2d at 931; Benich, 811 F.2d at 943 (court must determine true nature of debt regardless of characterization placed on it by parties’ agreement or court proceedings); Tilley v. Jessee, 789 F.2d 1074 (4th Cir.1986) (true intent of the parties rather than labels attached to agreement controls characterization of the obligation); Shaver, 736 F.2d 1314 (court must look beyond the language of the agreement to the intent of the parties and the substance of the obligation); Melichar v. Ost, 661 F.2d 300, 303 (4th Cir.1981) (where the obligation is embodied in an agreement of the parties, the test is the parties’ intention); Shacter v. Shacter, 467 F.Supp. 64, 66 (D.Md.1979) (substance not labels govern inquiry into parties’ intention and parties may intend payment to be for support even if not so labeled and even if state law technical requirements for alimony are not met). And the determination of intention underlying the court decree or the parties’ agreement is essentially one of fact. Boyle v. Donovan, 724 F.2d 681 (8th Cir.1984) (determination of parties’ intention is a question of fact); Cf. Melichar, 661 F.2d at 303 (classification of an agreement under state law is an important factor in determining parties’ intention). A wide range of factors may be pertinent to this intent inquiry, including whether the divorce degree contained another provision explicitly for alimony or support and whether, as is typically true of alimony, the obligation terminated on the death or remarriage of the receiving spouse. See Stout v. Prussel, 691 F.2d 859, 861 (9th Cir.1982) (existence of separate and distinct provisions in agreement regarding maintenance and property is a significant factor to be considered); Tilley, 789 F.2d at 1078 (obligations that survive despite remarriage of the obligee or death of the obligor are in direct contrast to the usual operation of marital support payments). A helpful bankruptcy court opinion lists eighteen such factors that may be taken into account in distinguishing between alimony," }, { "docid": "18728506", "title": "", "text": "furniture on credit, dischargeability of debt and divorce may be the farthest thing from their minds. Usually, such a debt is dischargeable. It is the legally significant event of the divorce decree or separation agreement by which an old, dischargeable debt is transformed into a different obligation which is rendered non-dischargeable by § 523(a)(5). The old debt is not the same. When the old debt is branded by the divorce decree, it attains a new and different status. It is then transmogrified from dischargeable to non-dis-chargeable. It need not be payable directly to the former spouse. That which is owed to one former spouse by the other is the obligation incurred by the divorce decree or separation agreement. The approach was “wooden” or unnecessarily rigid and unbending because his erroneous perception of the law was applied without regard to the facts of the case. The bankruptcy judge must consider whether any “debt” [liability on a claim] to a spouse, former spouse, or child in connection with a separation agreement, divorce decree, or property settlement agreement is genuinely (a) for alimony to, (b) maintenance for, or (c) support of such spouse or child. Of course, if such a debt is assigned to another entity or is not actually in the nature of alimony, maintenance, or support, it is dischargeable. A subjective review of the facts established by the evidence must be made so that the intent of the parties or the divorce court becomes known. If the evidence discloses that a particular label is attached to the obligation for an ulterior purpose, and the debt is not actually in the true or genuine nature of “alimony” or “support” of a child, then the debt should be discharged.' 11 U.S.C. § 523(a)(5)(A) and (B). Where a former spouse or a child seeks to determine the dischargeability of debt, the court should simply look to the agreement or decree, and to the evidence, and determine by a preponderance of the evidence whether the debt is (a) in connection with a separation agreement, divorce decree, or property settlement agreement; (b) actually in the nature" }, { "docid": "13278683", "title": "", "text": "of the marriage. Pursuant to the Judgment dated August 8, 1983, Paul Hilli-us was obligated to pay to Donna Hillius $7,600.00 as and for alimony to be paid in ten (10) annual payments of $760.00 each. The Judgment also obligated Paul Hillius to pay to Donna Hillius the sum of $500.00 for partial attorney’s fees. Paul Hillius has paid $100.00 towards the obligation for attorney’s fees. The Debtor, Paul Hillius, filed for relief under the Bankruptcy Code on November 16, 1981. CONCLUSIONS OF LAW The issue to be resolved in the present instance is whether the payments to Donna Hillius imposed upon the Debtor by the state court judgments are “actually in the nature of alimony, maintenance or support.” 11 U.S.C. § 523(a)(5). Section 523 of the Bankruptcy Code provides, in part: (a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 402(a)(26) of the Social Security Act); or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. 11 U.S.C. § 523(a)(5). When determining whether a particular debt is actually a support obligation, the divorce decree’s designation of those obligations does not control the bankruptcy court’s determination. The crucial issue is the function the award was intended to serve. See In re Williams, 703 F.2d 1055, 1057 (8th Cir.1983). The Bankruptcy Court must look to all the circumstances surrounding the creation of the liability, not only to the divorce decree. Factors to be considered are the earning power of each spouse, the levels of education of each, the physical health of the parties, their present and probable future needs of" }, { "docid": "18883687", "title": "", "text": "within the meaning of 11 U.S.C. § 523(a)(5), which provides, in pertinent part, as follows: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— ... (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record ... but not to the extent that— ... (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. 11 U.S.C. § 523(a)(5) (1982). The plaintiff argues that under Georgia law, an obligation to pay a former spouse’s attorney’s fees is considered alimony and that all such obligations are non-dischargeable in bankruptcy as a matter of law. This argument is without merit and ignores the Eleventh Circuit holding that “whether a particular debt is a support obligation or part of a property settlement is a question of federal bankruptcy law, not state law.” Harrell v. Sharp (In re Harrell), 754 F.2d 902, 905 (11th Cir.1985) (quoting Williams v. Williams (In re Williams), 703 F.2d 1055, 1056 (8th Cir. 1983)); Accord Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir.1984). The proper approach under federal bankruptcy law is to determine whether the debt for the ex-spouse’s attorney’s fees was intended, at the time of the decree, to be part of the division of property, or part of the ex-spouse’s support and maintenance. This determination must be made in light of all the facts and circumstances relevant to the intent of the attorney’s fee award. Williams, 703 F.2d at 1057-58; Gibson v. Gard (In re Gibson), 103 B.R. 218, 220 (Bankr. 9th Cir.1989); Chamorro v. Gonzalez (In re Gonzalez), 107 B.R. 778, 780 (Bankr.S.D.Fla.1989). In Williams, the Eighth Circuit affirmed the holding that the debtor’s obligation to pay his ex-wife’s attorney’s fees was a debt in the nature of support and was therefore nondischargeable. The Eighth Circuit stated that there was substantial evidence that" }, { "docid": "1137078", "title": "", "text": "property settlement is intended for support if it appears under the circumstances that the spouse needs support; 2. When there are minor children and an imbalance of income, the payments are likely to be in the nature of support; 3. Support or maintenance is indicated when the payments are made directly to the recipient and are paid in installments over a substantial period of time; and 4. An obligation that terminates on remarriage or death is indicative of an agreement for support. Id. at 1392-1393, citing, Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir.1984). The Seventh Circuit in the case of In re Maitlen, 658 F.2d 466 (7th Cir.1981), had occasion to construe a hold harmless provision as an Indiana Dissolution Decree, and affirmed the decision of the District Court for the reasons set forth in the District Court’s opinion which the Seventh Circuit attached as Appendix A. In Maitlen, the Dissolution Decree incorporated a Property Settlement Agreement between the parties in which the Bankrupt agreed to make the mortgage payment as to the mortgage on the former marital residence which was awarded to the non-debtor wife. That obligation terminated upon the death or remarriage of the wife. The District Court decision which was affirmed by the Seventh Circuit stated as follows: Division of property pursuant to a dissolution decree is treated as a debt dis-chargeable in bankruptcy proceedings. However, a provision for alimony or support is not dischargeable. See 11 U.S.C. § 523(a)(5) and its predecessor, former 11 U.S.C. § 35(a). The question in this case is whether the obligation to make mortgage payments was a support obligation or a property division. Since the dissolution in question occurred in 1974, it was pursuant to Ind.Code § 31-1-11.5-9, which became effective in 1973. That section eliminated the use of the word “alimony.” Much Indiana case law on this question was decided under the prior statute; the decisions revealed a dichotomy as to the meaning of the term “alimony.” See the discussion in Nichols v. Hensler, 528 F.2d 304, 307-08 (7th Cir.1976). However, in determining whether an obligation is a" }, { "docid": "19889446", "title": "", "text": "these findings only kept the claim contingent as of the petition date. Finally, while divorce proceedings and federal tort litigation may seem wholly dissimilar at first glance, they are similar in that no party in a divorce proceeding, nor any party involved in tort litigation, are guaranteed any form of financial settlement. Therefore, the contingent nature of Defendant’s claim in this case, like the contingent nature of the plaintiffs claim in Grady, does not change the fact that the act giving rise to the liability occurred pre-petition. Therefore, absent an applicable exception, the pre-petition debt is dis-chargeable. River Place E. Hous. Corp. v. Rosenfeld (In re Rosenfeld), 23 F.3d 833, 836 (4th Cir.) (discussing the exception to discharge arising under Section 524(a)(2)), cert. denied, 513 U.S. 874, 115 S.Ct. 200, 130 L.Ed.2d 131 (1994). B. The Lump Sum Obligation is Excepted from Discharge The Defendant contends that the lump sum obligation is excepted from the Plaintiffs discharge because it is in the nature of spousal support. For cases commenced in 1996, a debt owed to a spouse or former spouse or a debt to be paid to a third party in the nature of alimony, maintenance, or support pursuant to a divorce decree is excepted from discharge under Section 523(a)(5). In re Long, 794 F.2d 928, 930 (4th Cir.1986). Section 523(a)(5) sets forth three requirements to except a marital obligation from discharge: (1) the debt must be in the nature of alimony, maintenance or support; (2) the debt must be owed to a former spouse or child; and (3) the debt must be in connection with a separation agreement, divorce or property settlement agreement. 11 U.S.C. § 523(a)(5) (1996). The parties do not dispute that the second or third elements are satisfied. Therefore, the only issue before the court is whether the lump sum obligation is in the form of support. Whether or not the lump sum obligation is in the nature of support is a matter of federal bankruptcy law, rather than state law. Long, 794 F.2d at 930 (citing Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir.1984))." }, { "docid": "19077068", "title": "", "text": "because they were not incurred in connection with or substantially related to support issues. BELINDA, on the other hand, argues 1) that the net distributive award was in the nature of support, because the Court intended that the award would be used to generate income for her support, and therefore nondischargeable; 2) that the attorneys’ fees were incurred in connection with support enforcement proceedings and, therefore, nondischargeable; and 3) that the decision of the Third District Court of Appeal, holding that the money judgment did not lose its original support character is res judicata as to the issue. I: Net Distributive Award 11 U.S.C. § 523(a)(5) prohibits the discharge of an individual debtor from any debt (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of court of record, or property settlement agreement, but not to the extent that ... (B) such debt includes a liability designated as alimony, maintenance or support, unless such liability is actually in the nature of alimony, maintenance or support; According to the Eleventh Circuit, § 523(a)(5) only requires the bankruptcy court to make a “simple inquiry” as to whether the obligation in question is in the nature of support, thereby rendering it non-dis- chargeable, or whether it is in the nature of a property division, thereby rendering it dis-chargeable. In re Harrell, 754 F.2d 902, 906-07 (11th Cir.1985). Once the bankruptcy court makes the determination that the obligation is in the nature of support, the court’s “task [is] at an end”. In re Harrell, 754 F.2d at 907. What constitutes alimony, maintenance and support is determined under federal law. H.R.Rep. No. 95-595, 95th Cong. 1st Sess. 364 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6320, although the court may look to state law for guidance. Regardless of the label given to the financial payment in the settlement agreement or in the court order, the payment must actually be in the nature of alimony, maintenance or support. 3 Collier" }, { "docid": "6938454", "title": "", "text": "whether the liability at issue was one for maintenance, alimony or support — is generally considered a factual one, see In re Calhoun, 715 F.2d 1103, 1110 (6th Cir.1983), which cannot be set aside unless clearly erroneous. Bankruptcy Rule 8013. In this case, however, the determination that the fee award was in the nature of a division of community debt rather than spousal support is akin to a summary judgment determination as it was made solely on the basis of documentary evidence. Therefore, de novo review is most appropriate. See In re Marvin Properties, Inc., 854 F.2d 1183, 1185 (9th Cir.1988) (summary judgment determinations are reviewed de novo). DISCUSSION Section 523(a)(5) excepts from discharge any debt “to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record ...” Like all other exceptions to discharge, analysis under section 523(a)(5) begins with the principle that discharge is favored under the Bankruptcy Code and the party asserting nondischargeability has the burden of demonstrating that the obligation at issue is actually in the nature of alimony, maintenance or support. Tilley v. Jessee, 789 F.2d 1074, 1077 (4th Cir.1986). Bankruptcy courts look to federal law, not state law to determine whether an obligation is actually in the nature of alimony, maintenance or support. E.g. Shaver, 736 F.2d at 1316; 3 Collier on Bankruptcy P 523.15[1] (15th Ed. 1988). Although not bound by state law, courts can, however, look to state law for guidance. See In re Spong, 661 F.2d 6, 8-9 (2d Cir.1981). In determining whether an obligation is in the nature of alimony, maintenance or support, “the court must look to the “intent of the parties and the substance of the obligation.” Shaver, 736 F.2d at 1316. A factor in characterizing an obligation as one intended for support is the need of the recipient spouse. Id. Factors indicating the need for support “include the presence of minor children and an imbalance in the relative income of the" }, { "docid": "4774324", "title": "", "text": "debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support; 11 U.S.C. § 523(a)(5). In considering the question of dischargeability of debts assumed by a debtor-spouse in a divorce proceeding, the bank ruptcy court must determine whether the order for payment entered by the court having jurisdiction of the divorce case is in the nature of alimony or support (not dis-chargeable under § 523), or whether said order is in the nature of a property settlement, which would render the debts dis-chargeable. See H.R.Rep.No.95-595, 95th Cong., 1st Sess. 364 (1977), U.S.Code Cong. 6 Admin.News 1978, p. 5787; Warner v. Warner (In re Warner), 5 B.R. 434, 6 B.C.D. 788 (Bkrtcy.D.Utah 1980). For the reasons appearing below, it is the conclusion of this Court that the parties intended the pertinent provision of Plaintiff’s Exhibit A to be in the nature of a property settlement, and not alimony. The Family Court Final Judgment clearly states that the Plaintiff waived alimony. (Plaintiff’s Exh. A, paragraph 3). Although such waivers of alimony often appear to be unambiguous, the bankruptcy court may look beyond the decree itself to factors tending to show that the award was actually intended to constitute alimony. See Daviau v. Daviau (In re Daviau), 10 B.R. 201, 202 (Bkrtcy.D.Mass.1981); Snyder v. Snyder (In re Snyder), 7 B.R. 147 (W.D.Va.1980); Diers v. Diers (In re Diers), 7 B.R. 18, 6 B.C.D. 983 (Bkrtcy.S.D.Ohio 1980). The general rule is well stated in Collier as follows: [T]he court should hold an evidentiary hearing in order to determine whether the debt is “actually in the nature of alimony, maintenance or support” within the meaning of section 523(a)(5). An agreement between husband and wife may expressly describe an obligation therein as “alimony”, but the label is insufficient to make the obligations non-dischargeable unless the payment is actually for the support and maintenance of a spouse, former spouse, or child of the debtor, (footnotes omitted). 3 Collier on Bankruptcy ¶ 523.15[5] (15th Ed.) At the February 11, 1982 hearing, the Plaintiff had the burden" }, { "docid": "6725930", "title": "", "text": "trial, the motion should be granted in favor of. the moving party as a matter of law. As a general proposition, issues relating to domestic relations have been, and, should be, traditionally, handled by the appropriate State forums. But, because one spouse may subsequently become a debtor, the dis-chargeability of the obligations imposed on the debtor spouse becomes an issue for the Bankruptcy court, and the Bankruptcy courts are inevitably drawn-in to resolve domestic relations issues. The dischargeability, vel non, on the obligations under consideration involve an interpretation of the exception to discharge set forth in 11 U.S.C. § 523(a)(5). This Section provides as follows: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that— (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support; It has been recognized that what constitutes alimony and maintenance will be determined by Federal law and not by State law. In re Harrell, 754 F.2d 902 (11th Cir.1985). The label placed on the obligation is not controlling or relevant, and the court is required to look at the substance of the Final Decree and the provisions contained in the same, rather than the label placed on the obligation either by the parties, by agreement, or by the divorce court. In re Pattie, 112 B.R. 437 (Bkrtcy.M.D.Fla.1990). The issue here is whether the obligations set forth in the Judgment of Divorce constitute support obligations, which are nondis-chargeable as found in § 523(a)(5), or whether the obligations are in the nature of a property settlement, and, thus, dischargea-ble. Several factors should be considered in determining whether an obligation is in" }, { "docid": "18722025", "title": "", "text": "lifted the automatic stay so as to allow her to proceed against Long for collection of the balance of the alimony and attorney’s fees that the state divorce court had awarded her. The central issue in this appeal is the dischargeability under 11 U.S.C. § 523(a)(5) of Long’s alimony obligation to West. Section 523(a)(5) provides that a debt is not dischargeable in bankruptcy if it is a debt “(5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement, but not to the extent that— (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support;” 11 U.S.C. § 523(a)(5). The parties correctly conclude that the determination of whether alimony is for the recipient’s maintenance and support for purposes of bankruptcy discharge-ability is a matter of federal, not state, law. See Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir.1984). Similarly, they correctly conclude that West, as the party challenging a debt’s dischargeability in bankruptcy, bore the burden of establishing that the alimony award was in the nature of alimony, support or maintenance, and therefore nondischargeable under § 523(a)(5). See Bankruptcy Rule 4005. The bankruptcy court found that, under the qualification to the general nondis-chargeability of an alimony debt contained in § 523(a)(5)(B), West had not met her burden of proving that the debt was “actually in the nature of alimony, maintenance, or support.” The bankruptcy court held therefore that Long’s alimony obligation was a dischargeable debt. The district court found this conclusion to be clearly erroneous and entered a judgment in favor of West. On appeal, our task is to determine whether the district court erred when it reversed the bankruptcy court’s determination that Long’s alimony obligation was a dischargeable debt. We find that the district court did not err in its reversal of the bankruptcy court and affirm the district court's judgment in West’s favor. We have previously held, in" }, { "docid": "18791833", "title": "", "text": "an individual debtor from any debt”— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement, but not to the extent that— * * * * * * (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support; .... The explanation of the language of the above section as recorded in U.S. Congressional and Administrative News, 1978, second session, Vol. 5, 5787 at page 6320, and set out also in the notes to the section as found in United States Code Service, Title 11 § 523, at page 50 says— Paragraph (5) excepts from discharge debts to a spouse, former spouse, or child of the debtor for alimony to, maintenance for, or support of, the spouse or child. * :{: * sfc !}: sj: This provision will, however, make non-dischargeable any debts resulting from an agreement by the debtor to hold the debtor’s spouse harmless on joint debts, to the extent that the agreement is in payment of alimony, maintenance, or support of the spouse, as determined under bankruptcy law considerations that are similar to considerations of whether a particular agreement to pay money to a spouse is actually alimony or a property settlement. See Hearings, pt. 3, at 1287-1290. The notes in the aforesaid United States Code Service to Title 11 § 523, at page 54, relate— Section 523(a)(5) is a compromise between the House bill and the Senate amendment. The provision excepts from discharge a debt owed to a spouse, former spouse or child of the debtor, in connection with a separation agreement, divorce decree, or property settlement agreement, for alimony to, maintenance for, or support of such spouse or child but not to the extent that the debt is assigned to another entity. If the debtor has assumed an obligation of the debt- or’s spouse to a third party in connection with a separation agreement, property settlement" }, { "docid": "18545358", "title": "", "text": "summary judgment only will be granted when there is no room for controversy. United States v. Earhart (In re Earhart), 68 B.R. 14, 15 (Bankr.N.D.Iowa 1986); Sell v. Heath (In re Heath), 60 B.R. 338, 339 (Bankr.D.Colo.1986). As previously noted, all controversy in the instant case hinges upon the dis-chargeability of certain debts which the Debtor incurred as a consequence of his 1993 divorce. Regarding the dischargeability of such divorce-related obligations, the Bankruptcy Code makes the following provision: (a) a discharge under section 727, 1141, 1228(a), 1228(b) or 1328(b) of this title does not discharge an individual debtor from any debt— ****** (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement ^ * * 5b ^ * 11 U.S.C. § 523(a)(5). This provision of the Bankruptcy Code “departs from the general policy of absolution, or ‘fresh start’ ” so as to “enforce an overriding public policy favoring the enforcement of family obligations.” Shaver v. Shaver (In re Shaver), 736 F.2d 1314, 1315-16 (9th Cir.1984) (citations omitted); In re Harrell, 754 F.2d 902, 906 n. 6 (11th Cir.1985). Whether a debt to a former spouse qualifies as nondischargeable support is said to involve questions of federal rather than state law. Gianakas v. Gianakas (In re Gianakas), 917 F.2d 759, 762 (3d Cir.1990); Sylvester v. Sylvester, 865 F.2d 1164, 1166 (10th Cir.1989). Thus, a label placed upon the obligation by the consent agreement or court order which created it will not determine its subsequent dischargeability in bankruptcy. Joseph v. O’Toole (In re Joseph), 16 F.3d 86, 88 (5th Cir.1994); Sampson v. Sampson (In re Sampson), 997 F.2d 717, 722 (10th Cir.1993). Rather than relying upon such labels, courts will look to factors such as: (1) Whether the obligation under consideration is subject to contingencies, such as death or remarriage; (2) Whether the payment was fashioned in" }, { "docid": "12211268", "title": "", "text": "A discharge under this act does not discharge an individual debtor from any debt— * * * * * * (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, ... or property settlement agreement, but not to the extent that— * * * * * * (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance or support ...\" A written agreement between the parties is persuasive of intent. Tilley v. Jessee, 789 F.2d 1074, 1077 (4th Cir.1986); In re Yeates, 807 F.2d 874, 878 (10th Cir.1986). Thus, if the agreement between the parties clearly shows the parties intended the debt to reflect either support or a property settlement, then that agreement will normally control. Yeates, supra. However, if the agreement is ambiguous, then the Court must look beyond the language of the decree to the intent of the parties and to the substance of the obligation. Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir.1984). When the agreement is ambiguous, evidence that payment of the debt is necessary in order for the Plaintiff to maintain daily necessities such as food, housing and transportation indicates that the parties intended the debt to be in the nature of support. Yeates at 879; In re Calhoun, 715 F.2d 1103, 1107, 1109 (6th Cir.1983). In the case at bar, review of the Marital Agreement as a whole reveals that the Debtor’s assumption of the marital obligations is in the nature of maintenance and support and not solely as a property settlement. The captions of the Agreement are inconclusive in arriving at this conclusion. Paragraph III is entitled “Division of Property” and sets forth the distribution scheme. The paragraph regarding the assumption of the debts is Paragraph IV and simply entitled “Debts”. This is followed by Paragraph V entitled “Maintenance and Support” which provides for the child support payments and subparagraph" }, { "docid": "5139352", "title": "", "text": "the debtor would continue to be jointly liable under the second mortgage note. The separation agreement does not contain any assumption of this obligation by the debtor. Thus, there is no promise by the debtor in the separation agreement to pay the I.B.M. Credit Union loan that could be regarded as an assumption of a matrimonial obligation in the nature of alimony, maintenance or support. The debtor’s obligations for alimony, maintenance or support are expressly provided for in the separation agreement under the separate caption entitled “Maintenance and Child Support”. 14.There is no evidence to support the plaintiff’s contention that the division of debts between the plaintiff and the debtor pursuant to the provisions in the separation agreement captioned “Debts” constituted an assumption by the debtor of nondis-chargeable obligations in the nature of alimony, maintenance or support. Each party assumed responsibility for specific debts in stated amounts. The debtor’s responsibility was to continue regardless of the plaintiff’s death or remarriage. There was no proof that any of the debts that existed on September 9, 1985, when the separation agreement was signed, had any relationship to the plaintiff’s requirements for support or child support. The division of obligations simply reflects certain debts which each of the parties agreed to assume based upon the property settlement arrived upon by them. DISCUSSION The crucial issue in this case is whether or not certain obligations of the debtor, which are referred to in a separation agreement with the debtor’s former wife, and which are not payable directly to her, are nondischargeable under 11 U.S.C. § 523(a)(5)(B), which excepts from discharge payments: (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or other order of a court of record or property settlement agreement, but not to the extent that— (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. The fact that a debtor may owe an obligation" }, { "docid": "13950817", "title": "", "text": "support order are subject to discharge. The dischargeability of support debts is governed by 11 U.S.C. § 523(a)(5), which states in pertinent part: § 523 Exceptions to discharge (a)A discharge under sections 727, 1141, 1228(a), 1228(b) or 1328(b) of this title does not discharge an individual debtor from any debt— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, ... but not to the extent that— (B) such debt includes a libility designated as alimony, maintenance, or support, unless such liability is actually in- the nature of alimony, maintenance, or support. Under § 523(a)(5), support obligations imposed by a divorce decree are not dis-chargeable in a Chapter 7 proceeding. However, while a divorce decree may label a particular obligation as support, it is well established that the nature of the obligation is determined by federal bankruptcy law. Singer v. Singer (In re Singer), 787 F.2d 1033, 1035 (6th Cir.1986) (Guy, J., concurring). In Long v. Calhoun (In re Calhoun), 715 F.2d 1103 (6th Cir.1983), the Court of Appeals for the Sixth Circuit set forth a formula for determining whether payments by a debtor are in the nature of support. That formula includes: (a) whether the intent of the state court or the parties was to create a support obligation; (b) whether the support provision has the actual effect of providing necessary support; (c) whether the amount of support is so excessive as to be unreasonable under traditional concepts of support; and (d) if the amount of support is unreasonable, how much of it should be characterized as nondischargeable for purposes of federal bankruptcy law. Singer, 787 F.2d at 1036. The second prong of the Calhoun test is critical to the outcome of this adversary proceeding. Clearly the obligation was intended as support. Where all three children are now emancipated, however, does the payment of child support arrearages have the actual effect of providing necessary support? The irony of that issue" }, { "docid": "18755768", "title": "", "text": "the standard elucidated in Gibson and is nondischargeable. Appellant’s E.R. at 167. We agree with the bankruptcy court. CONCLUSION The bankruptcy court did not commit error in determining that the state court’s award of professional fees was nondischargeable. The facts that were determined were not clearly erroneous. The bankruptcy court’s application of the law to the facts was correct. The judgment of the bankruptcy court is AFFIRMED. . 11 U.S.C. § 523(a)(5): (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that— (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 4,02(a)(26) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support.... . We apply the de novo standard out of an abundance of caution and out of a desire to minimize the issues for further appeal in a litigation that appears to have (in the worst senses of the idiom) achieved a life of its own. We may, however, be applying too strict a standard. The more deferential abuse of discretion standard has been applied by the Ninth Circuit in two decisions, not latterly renounced, under section 523(a)(5) regarding dischargeability of debts imposed in connection with marital dissolutions. Shaver v. Shaver (In re Shaver), 736 F.2d 1314, 1316 (9th Cir.1984); Stout v. Prussel, 691 F.2d 859, 861 (9th Cir.1982). Since we apply a more stringent standard, it" }, { "docid": "18996092", "title": "", "text": "was held on August 14, 1981. The plaintiff-appellee was present and filed a complaint to determine the dischargeability of the sums due to her pursuant to the Separation Agreement. These sums were listed on the defendant-appellant’s schedule of debts, and amounted to a balance of $47,200. The controlling statute in this case is 11 U.S.C. 523(a)(5), which states: § 523 Exceptions to discharge (a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— ****** (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or property settlement The three basic scenarios arising from the statute are as follows: 1, if payment, i.e. Settlement Agreement, is for alimony, maintenance, or support, the debt is non-dischargeable; 2, conversely, if the payment, or Settlement Agreement is strictly a property settlement, the debt is dischargeable; 3, where there is a property settlement in connection with alimony, maintenance, or support, the debt is nondischargeable. The present case is an example of this “third” scenario. Defendant-appellant argues that paragraph 15 of the Settlement Agreement clearly indicates a “property settlement” in lieu of alimony, thereby making the debt dischargeable. However, paragraph 15 can only be read in light of paragraph 2, which provides: Each party releases the other from all obligations, past and present, except as herein mentioned, or for future care, support or maintenance ... (emphasis added). Thus, paragraph 2 indicates that the property settlement embodied in paragraph 15 was not to be in exclusion of any future maintenance or support. Thus, the bankruptcy court was not in error in characterizing the periodic payments pursuant to the Settlement Agreement as alimony, thereby being non-dischargeable. Shaver v. Shaver, 736 F.2d 1314 (9th Cir.1984) lends support to the bankruptcy court’s finding of non-dischargeability. Shaver notes that if a settlement agreement fails to provide explicitly for spousal support, the court may presume that a so-called property settlement is intended for support, when circumstances indicate that the recipient" }, { "docid": "23059889", "title": "", "text": "three year limitation period of § 507(a)(6)(A)(i). Consequently, the discharge of the debt is not barred by § 523(a)(1) since Rankin has failed to prove that the tax is of one of the types enumerated in that subsection. As stated above Rankin also asserts that the debt is not dischargeable under § 523(a)(5) since the debtor’s obligation to satisfy the tax lien was in the nature of alimony, maintenance or support. This section has four requirements: (1) the debt must be owed to a spouse, former spouse, or child of the debtor; (2) for alimony, maintenance or support; (3) arising under a separation agreement, divorce decree or proper ty settlement agreement; and (4) it must not be assigned except under § 402(a)(26) of the Social Security Act. § 523(a)(5). Thus, § 523(a)(5) will not bar the discharge of an obligation from the debtor to his former spouse unless the debt is for alimony, maintenance or support. Whether in any given case such obligations are in fact for “support” and therefore not dischargea-ble in bankruptcy, is a question of fact to be decided by the Bankruptcy Court as the trier of the facts in light of all the facts and circumstances relevant to the intention of the parties. Williams v. Williams, 703 F.2d 1055, 1057-58 (8th Cir.1983). This determination of intent is particularly difficult since the designations used by the parties or the divorce court in denominating whether a debt is alimony or part of a property settlement are not conclusive although due consideration to those labels is afforded her. Id.; Stout v. Prussel, 691 F.2d 859, 861 (9th Cir.1982). Further compounding the problem is the fact that, at the time the alimony is awarded and the property divided, very often the parties have no intent to differentiate between an alimony debt and a property settlement debt and will view both merely as financial obligations arising from , the separation or divorce. The parties would have no purpose or rationale in making the distinction without some awareness of the legal consequences of the choice such as that found in the disciplines" } ]

[ { "docid": "18737010", "title": "", "text": "are drafted to address the collateral’s depreciation or decline in value during the pendency of the stay. These provisions are coupled with the grant of other relief as will result in realizing the indubitable equivalent of the creditor’s interest on which the creditors focus here. See 11 U.S. C.A. § 361(3). This statutory scheme indicates that adequate protection is intended to encompass a broad range of creditor interests and does not mandate an interpretation of the creditors’ interest as the whole of the economic bargain. Briggs, 780 F.2d at 1345. The existence of equity above the secured party’s interest which provides an “equity cushion” to the secured party may, in a given case, provide adequate protection. See, e.g., In re Mellor, 734 F.2d 1396, 1400 (9th Cir.1984); In re Palmer River Realty, Inc., 26 B.R. 138, 141 (Bkrtcy.D.R.I.1983). Equity cushion has been defined as the value of the property above the amount owed to the creditor with a secured claim, that will shield the interest from loss due to any decrease in the value of the property during the time the automatic stay remains in effect. See, e.g., In re Mellor, 734 F.2d 1396, 1400 n. 2 (9th Cir.1984); In re Roane, 8 B.R. 997, 1000 (Bkrtcy.E.D.Pa.), aff'd, 14 B.R. 542 (E.D.Pa.1981). The court notes that some courts have rejected the equity cushion analysis as alien to the concept of adequate protection. See Matter of Bouquet Investment, 32 B.R. 988, 9 C.B.C.2d 715 (Bkrtcy.C.D.Cal.1983); In re Alyucan Interstate Corp., 12 B.R. 803 (Bkrtcy.D.Utah 1981). Those courts, however, have employed the notion of impairment of lien: The cushion analysis, by focusing on the ratio of debt to collateral, obscures the purpose of adequate protection, viz., to guard against impairment of a lien. This blurring of objectives may produce improper results. If Bankers Life had been undersecured at the petition, for example, the absence of cushion would have dictated relief from the stay, even though the stay did not impair its lien and notwithstanding the usual appreciation in the value of realty. In re Alyucan Interstate Corp., 12 B.R. at 810. Under" } ]

[ { "docid": "10178999", "title": "", "text": "re Grundstrom, 14 B.R. 791, 793 (Bankr.D.Mass.1981) & cases cited therein. However, the existence of an equity cushion, by itself does not always adequately protect the interest of a secured creditor. Various factors must also be considered. Among them are: the size of the equity cushion (sometimes expressed as a percentage of fair market value); the rate at which the cushion will be eroded; whether periodic payments are to be made to prevent or mitigate the erosion of the cushion; and, if the property is to be liquidated, the likelihood of a reasonably prompt sale. See e.g., Ukrainian Savings and Loan Association v. Trident Corp.; Matter of Schaller; In re Grundstrom. As noted above, the conclusion that an equity cushion exists is “based upon approximations founded upon opinions and assumptions.” In re Tucker, 5 B.R. 180, 182 (Bankr.S.D.N.Y.1980). To the extent the cushion is small, it may not be sufficient to constitute adequate protection: A seven percent equity cushion will rarely provide sufficient protection because a key component of the ratio, the fair market value figure, is only the court’s best estimate and, as an estimate, requires a margin for error. In re Lemay, 18 B.R. 659, 661 (Bankr.D.Mass.1982). To the extent there is a slim equity cushion which is eroding rapidly, the interests of the secured creditor may not be adequately protected. See Ukrainian Savings and Loan Association v. Trident Corp.; Matter of Schaller; In re Jug End in the Berkshires, Inc. In the instant case, the equity cushion is a slim 8.9%. The cushion will diminsh rapidly, at a rate of approximately $120,000 per month plus the imposition of a tax lien for for the 1987 real estate taxes of $447,762.50, which will become due not later than March 31, 1987. Thus, in three months, which is the time period which will elapse before the hotel can be rescheduled for foreclosure sale, the $1,800,000 cushion will be eroded by more than $800,000. With proper deference for a margin of error in valuation, this cushion does not provide adequate protection. In addition, when the claims of secured creditors are" }, { "docid": "10178998", "title": "", "text": "protected — the existence of an “equity cushion.” Nei ther periodic cash payments nor replacement liens were offered, see 11 U.S.C. 361(1), (2), although movants’ counsel stated that periodic cash payments equal to the per diem rate for the three mortgages, plus payment of the 1987 real estate taxes would protect the movants’ interests. An equity cushion has been defined as “the surplus of value remaining after the amount of indebtedness is subtracted from the fair market value of the collateral.” Commonwealth of Pennsylvania State Employees Retirement Fund v. Roane, 14 B.R. 542, 545 (Bankr.E.D.Pa.1981). In making this calculation, the court compares the value of the property to the sum of the movant’s secured claim and those secured claims senior to that of the movant. E.g., In re Jug End in the Berkshires, Inc., 46 B.R. at 901. As the debtor notes, and I agree, in certain circumstances, an equity cushion by itself can constitute adequate protection within the meaning of section 362(d)(1). See, e.g., In re Mellor, 734 F.2d 1396, 1400 (9th Cir.1984); In re Grundstrom, 14 B.R. 791, 793 (Bankr.D.Mass.1981) & cases cited therein. However, the existence of an equity cushion, by itself does not always adequately protect the interest of a secured creditor. Various factors must also be considered. Among them are: the size of the equity cushion (sometimes expressed as a percentage of fair market value); the rate at which the cushion will be eroded; whether periodic payments are to be made to prevent or mitigate the erosion of the cushion; and, if the property is to be liquidated, the likelihood of a reasonably prompt sale. See e.g., Ukrainian Savings and Loan Association v. Trident Corp.; Matter of Schaller; In re Grundstrom. As noted above, the conclusion that an equity cushion exists is “based upon approximations founded upon opinions and assumptions.” In re Tucker, 5 B.R. 180, 182 (Bankr.S.D.N.Y.1980). To the extent the cushion is small, it may not be sufficient to constitute adequate protection: A seven percent equity cushion will rarely provide sufficient protection because a key component of the ratio, the fair market value" }, { "docid": "4715589", "title": "", "text": "secure the interests of the Secured Noteholders. There appears to be no dispute among the parties that an “equity cushion,” if sufficient in size and unlikelihood of erosion, may constitute, in itself, adequate protection. See, e.g., In re Mellor, 734 F.2d 1396, 1400 (9th Cir.1984); Commonwealth of Pennsylvania State Employees Retirement Fund v. Roane, 14 B.R. 542, 544-45 (E.D.Pa.1981) (per BECHTLE, J.); In re Liona Corp., 68 B.R. 761, 767 (Bankr.E.D. Pa.1987); and In re Curtis, 9 B.R. 110, 112 (Bankr.E.D.Pa.1981). In light of our factual finding that the Debtor television stations are worth about $115.5 million and that the Secured Noteholders’ security interests are in the amount of but $90.5, we must conclude that there is a substantial equity cushion, of approximately $25 million and over twenty-seven (27.5%) percent at present. Moreover, as per our previous conclusion that the Secured Noteholders have only met their burden of showing that their interests will accrue at approximately $5 million per annum, it seems very likely that the equity cushion will increase rather than decrease over the passage of time. What is in issue here is an asset which, in the right hands and under the right circumstances, will appreciate far more quickly than the real estate in issue in the cases cited in the preceding paragraph, or the farm livestock and crops in issue in such cases as In re Vanas, 50 B.R. 988 (Bankr. E.D.Mich.1985); and In re Stein, 19 B.R. 458 (Bankr.E.D.Pa.1982). The stations in issue here were acquired at respective costs of approximately $35 million (Philadelphia), $20 million (Miami), and $16 million (Chicago). In about two (2) years, the value of the Miami station, per Mr. Cheen, increased to $37.4 million. In about one (1) year, again per Mr. Cheen, whose evaluations we credit, the value of the Philadelphia and Chicago stations have increased, respectively, to $57.09 million and $20.98 million. This represents a value increase of about $35 million for all three (3) stations per annum. We might add that even the low estimates of Mr. Hoffman, which evaluated the stations at about $81.5 million, indicated an" }, { "docid": "9340756", "title": "", "text": "his economic house in order. In re Coors of the Cumberland, Inc., 19 B.R. 313 (Bahkr.M.D.Tenn.1982); LaJolla Mortgage Fund v. Rancho El Cajon Assoc., 18 B.R. 283 (Bankr.S.D.Ca.1982). As a countervailing policy, Section 361 of the Code was included to protect the interests of secured creditors during the pendency of bankruptcy. In re Timbers of Inwood Forest Assoc., Ltd., 793 F.2d 1380 (5th Cir.1986), on rehearing, 808 F.2d 363 (1987), cert. gr., — U.S. —, 107 S.Ct. 2459, 95 L.Ed.2d 868 (1987); In re Briggs Transportation Co., 780 F.2d 1339 (8th Cir.1985); In re American Mariner Industries, Inc., 734 F.2d 426 (9th Cir.1984). Case law has established that the existence of an equity cushion may, in and of itself, constitute adequate protection for an over-secured creditor. In re Mellor, 734 F.2d 1396 (9th Cir.1984); In re Ritz Theatres, Inc., 68 B.R. 256 (Bankr.M.D.Fla.1987). Whether an equity cushion does constitute adequate protection is determined on a case-by-case basis. In re Tucker, 5 B.R. 180 (Bankr.S.D.N.Y.1980). Case law has almost uniformly held that an equity cushion of 20% or more constitutes adequate protection. In re San Clemente Estates, 5 B.R. 605 (Bankr.S.D.Ca.1980) (65% is adequate); In re Nashua Trust Co., 73 B.R. 423 (Bankr.D.N.J.1987) (50% is adequate); In re Ritz Theatres, supra. (38% is adequate); In re Dunes Casino Hotel, 69 B.R. 784 (Bankr.D.N.J.1986) (30% is adequate); In re Helionetics, 70 B.R. 433 (Bankr.C.D.Ca.1987) (20.4% is adequate); and, In re Mellor, supra, (20% is adequate); But see, In re Lee, 11 B.R. 84 (Bankr.E.D.Pa.1981) (41% requires payment of current interest). Case law has almost as uniformly held that an equity cushion under 11% is insufficient to constitute adequate protection. Ukrainian Savings and Loan Assoc. v. The Trident Corp., 22 B.R. 491 (E.D.Pa.1982) (10% is inadequate); In re McGowan, 6 B.R. 241 (Bankr.E.D.Pa.1980) (10% is inadequate); In re Liona Corp., N.V., 68 B.R. 761 (Bankr.E.D.Pa.1987) (8.9% inadequate); In re Jug End in the Berkshires, Inc., 46 B.R. 892 (Bankr.D.Mass.1985) (8.6% insufficient); In re Castle Ranch of Ramona, Inc., 3 B.R. 45 (Bankr.S.D.Ca.1980) (8.6% is insufficient); and, In re LeMay, 18 B.R. 659 (Bankr.D.Mass.1982)" }, { "docid": "10179000", "title": "", "text": "figure, is only the court’s best estimate and, as an estimate, requires a margin for error. In re Lemay, 18 B.R. 659, 661 (Bankr.D.Mass.1982). To the extent there is a slim equity cushion which is eroding rapidly, the interests of the secured creditor may not be adequately protected. See Ukrainian Savings and Loan Association v. Trident Corp.; Matter of Schaller; In re Jug End in the Berkshires, Inc. In the instant case, the equity cushion is a slim 8.9%. The cushion will diminsh rapidly, at a rate of approximately $120,000 per month plus the imposition of a tax lien for for the 1987 real estate taxes of $447,762.50, which will become due not later than March 31, 1987. Thus, in three months, which is the time period which will elapse before the hotel can be rescheduled for foreclosure sale, the $1,800,000 cushion will be eroded by more than $800,000. With proper deference for a margin of error in valuation, this cushion does not provide adequate protection. In addition, when the claims of secured creditors are to be paid by liquidating the collateral, the interest of those creditors may not be adequately protected if there is no likelihood of liquidation in the near future. In re Grundstrom; In re Lemay. Indeed, a key premise of the valuation opinion of the debtor’s expert, whose testimony I have credited in part, is that the property could be both marketed adequately and sold promptly. However, PCH Associates has been unable or unwilling to sell the hotel since it filed for bankruptcy in November 1984. Liona offered no evidence to provide any assurance that it will achieve any greater success. The degree of protection afforded by an equity cushion must be determined upon supposition as to the future, with a view from the known probing the unknown. By virtue of § 362(g)(2), it is the defendant-debtor who has the burden of divining the future and proving the proffered protection adequate. In re Tucker, 5 B.R. at 183. For these reasons, the small equity cushion which is rapidly eroding without a prospect for a reasonably prompt" }, { "docid": "18509838", "title": "", "text": "property at issue and all encumbrances against it — a concept separate and apart from that of adequate protection under Code § 362(d)(1), which examines the value of the property against the movant’s lien and all those senior. See Pistole v. Mellor (In re Mellor), 734 F.2d 1396, 1400-1401 & n. 2 (9th Cir.1984); Stewart v. Gurley, 745 F.2d 1194, 1195 (9th Cir.1984); In re Cardell, 88 B.R. 627, 631 (Bankr.D.N.J.1988); In re Missouri Flats Associates, 86 B.R. 634, 638 (Bankr.E.D.Cal.1988); In re Diplomat Electronics Corp., 82 B.R. 688, 692 (Bankr.S.D.N.Y.1988); In re Belton Inns, Inc., 71 B.R. 811, 817 (Bankr.S.D.Iowa 1987); First Agricultural Bank v. Jug End In the Berkshires, Inc. (In re Jug End In The Berkshires, Inc.), 46 B.R. 892, 901 (Bankr.D.Mass.1985); La Jolla Mortgage Fund v. Rancho El Cajon Associates, 18 B.R. 283, 287 (Bankr.S.D.Cal.1982). See also M. Bienenstock, Bankruptcy Reorganization, 134-136 & n. 92-93 (1987). But see Central Fla. Prod. Credit Ass’n v. Spring Garden Foilage, Inc. (In re Spring Garden Foliage, Inc.), 15 B.R. 140,143 (Bankr.M.D.Fla.1981); Wolford v. Wolford Enters., Inc. (In re Wolford Enters., Inc.), 11 B.R. 571, 574 (Bankr.S.D.Va.1981). In real estate, equity is “the remaining interest belonging to one who has pledged or mortgaged his property, or the surplus of value which may remain after the property has been disposed of for the satisfaction of liens. The amount or value of a property above the total liens or charges.” BLACK’S LAW DICTIONARY 484 (5th ed. 1979). Thus, if the movant holds the only lien on the property and it exceeds the value, not only is the creditor underse-cured, but “the debtor does not have an equity in such property.” See e.g., United States Savings Association of Texas v. Timbers of Inwood Forest Associates, Ltd. (“Timbers”), 484 U.S. 365, 108 S.Ct. 626, 632, 98 L.Ed.2d 740 (1988) aff'g, 808 F.2d 363 (5th Cir.1987) (rehearing en banc), aff'g, 793 F.2d 1380 (1986). Relying upon Freddie Mac’s proof of claim stipulated into evidence and its valid security interest in rents, deposits and all monies due under the Yorkshire Manor’s leases, Freddie Mac Exhibits R7," }, { "docid": "14617159", "title": "", "text": "75-80% completed, the units requiring only touch-up painting, carpeting and clean up. . The record is not clear whether he was billed for these late charges. . As I advised the parties at the hearing, the third reason for cause given, i.e., the bad loan history, is not grounds for relief. If prepetition loan defaults were the basis for relief from stay, the vitality of the stay as a protection to debtors electing to reorganize in bankruptcy would be eviscerated. . Adequate protection may be provided in a variety of ways. 11 U.S.C. § 361. Adequate protection may be demonstrated by the existence of an equity cushion. See In re Mediterranean Associates, L.P., 1993 WL 541671 (E.D.Pa.1993); Commonwealth of Pennsylvania State Employees’ Retirement Fund v. Roane, 14 B.R. 542 (E.D.Pa.1981); In re Colonial Center, Inc., supra. Adequate protection may also be provided by the creation of a replacement lien on other, unencumbered property, 11 U.S.C. § 361(2), In re Ahlers, 794 F.2d 388, 398 (8th Cir.1986), rev’d on other grounds, 485 U.S. 197, 108 S.Ct. 963, 99 L.Ed.2d 169 (1988); In re Antell, 155 B.R. 921 (Bankr.E.D.Pa.1992); cash payments to the secured creditor, 11 U.S.C. § 361(1), In re Antell; In re McKillips, 81 B.R. 454, 458-59 (Bankr.N.D.Ill.1987); or, a viable plan of reorganization which meets the debtor’s statutory obligations to the secured creditor, In re Philadelphia Consumer Discount Co., 37 B.R. 946, 949 n. 9 (E.D.Pa.1984); In re Antell, supra; In re Skipworth, 69 B.R. 526 (Bankr.E.D.Pa.1987). . I had asked the parties to brief the effect on Debtor's reorganization of Bank’s prepetition notice to less than all of the tenants. While Debtor addressed the issue, Bank filed a brief focusing on the other bases of their case, especially the post-petition payment history. Thus, Bank has never addressed the one issue that was somewhat unique in this case and which prompted my taking this contested matter under advisement. The length of this Opinion is attributed to that issue. Rather Bank's brief attempts to supplement the closed record by attaching an affidavit and additional documents concerning Debt- or’s post-hearing payment" }, { "docid": "22103685", "title": "", "text": "The court also ruled that a first lienholder on land would not be adequately protected unless debtor paid taxes, insurance, monthly interest, and gave added security. In In re Tucker, 5 B.R. 180 (S.D.N.Y.1980) a cushion of 7.4 percent was believed inadequate protection for a junior lienholder on realty, although other circumstances weighted the decision against debtor. In In re Castle Ranch of Ramona, Inc., 3 B.R. 45 (S.D.Cal.1980), a cushion of 8.6 percent was held inadequate to protect a first lienholder on realty, although the opinion elsewhere suggests the absence of equity and is not straightforward in its application of a cushion analysis. In In the Matter of Lake Tahoe Land Company, Inc., 5 B.R. 34 (D.Nev.1980) the court found that termination of the stay was appropriate for “cause” independent of the adequate protection issue. Although the lender was undersecured, the court noted in dictum that a 40 to 50 percent cushion for lenders on raw ground would be necessary to afford adequate protection. In In re Rogers Development Corp., 2 B.R. 679 (E.D.Va.1980) the court held a 17 percent cushion for a first lienholder on land to be adequate protection. In In re San Clemente Estates, 5 B.R. 605 (S.D.Cal. 1980) the court held a 65 percent cushion for a first lienholder on land to be adequate protection. The court noted that this “quantitative approach may have the salutary effect of giving precise guidance as to the standard to be used, but it does seem to be inconsistent with the Congressional intent that each case is to be judged on its facts.” Id. at 610. The court further noted that if development projections were not met and the land had to be marketed in its present condition, this would require a new valuation of the property resulting in a 17 percent cushion which would be “precariously close to being inadequate.” Id. at 611. . Even Section 361(3), the indubitable equivalent standard, had its genesis in In re Murel Holding Co., 75 F.2d 941 (2d Cir. 1935) where Judge Hand opined: “It is plain that ‘adequate protection’ must be" }, { "docid": "4715596", "title": "", "text": "plan.” 734 F.2d at 435. Rather, we agree in large part with the result reached by the Fifth Circuit, adopted by the Court en banc, in In re Timbers of Inwood Forest Associates, Inc., 793 F.2d 1380, 1416 (5th Cir.1986), reinstated, 808 F.2d 363 (5th Cir.1987) (en banc), that such compensation should not always be a factor in determining whether a creditor is adequately protected. Accord, e.g.: In re Island Helicopter Corp., 63 B.R. 809 (Bankr. E.D.N.Y.1986); In re Pine Lake Village Apt. Co., 19 B.R. 819 (Bankr.S.D.N.Y. 1982); and In re Alyucan Interstate Corp., 12 B.R. 803 (Bankr.D.Utah 1981). The Secured Noteholders suggest that this Court decided this issue consistently with the American Mariner line of cases in In re Nesmith, 57 B.R. 348 (Bankr.E.D. Pa.1986). While it is true that, in deciding Nesmith, Judge Goldhaber indicates, in the decision, that he “draws succor” from American Mariner, id. at 349, the issue of whether interest should be collectible on mortgage arrears involves interpretation of Code sections other than § 361. Furthermore, both of the judges presently sitting in Philadelphia have rejected the reasoning of Nesmith. See In re Fries, 68 B.R. 676, 681-82 (Bankr.E.D.Pa.1986) (per FOX, J.); and In re Small, 65 B.R. 686 (Bankr.E.D. Pa.1986) (per SCHOLL, J.). It is, moreover, our view that post-petition interest is collectible by creditors in only certain circumscribed situations. Cf. Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 165, 67 S.Ct. 237, 241, 91 L.Ed. 162 (1946); and In re Shaffer Furniture Co., 68 B.R. 827, 830 (Bankr.E.D.Pa. 1987) (unsecured creditors entitled to post-petition interest only where the Debtor is solvent and equitable considerations favor this result). We believe that it is far more significant in the weight of considerations as to whether a creditor is “adequately protected” to analyze the Debtor’s prospects for a successful reorganization in Chapter 11. If these prospects are strong, as we believe them to be here, then the measure of the secured creditor’s adequate protection is the probability that the debtor will be able to propose an effective Plan. The one aspect that troubles us" }, { "docid": "14617132", "title": "", "text": "rights and the debtor’s need for breathing room in order to rehabilitate or liquidate in an orderly manner. See generally Community Federal Savings and Loan Association v. Craghead (In re Craghead), 57 B.R. 366, 369 (W.D.Mo.1985). I. Relief from stay under § 362(d)(1) may be granted for “cause, including the lack of adequate protection of an interest in property of such party in interest.” The party seeking relief from the stay has an initial burden to demonstrate cause for relief. In re Ward, 837 F.2d 124, 128 (3d Cir.1988); In re Purnell, 92 B.R. 625, 631 (Bankr.E.D.Pa.1988); In re Kim, 71 B.R. 1011, 1015 (Bankr.C.D.Cal.1987). This follows from the principle that a party seeking to alter the status quo has some initial burden to justify the relief sought. See generally In re Fries, 68 B.R. 676, 684-85 (Bankr.E.D.Pa.1986). Courts in this district have concluded that evidence of a debtor’s post-petition default in mortgage payments meets the mortgagee’s initial burden of production in establishing “cause” for relief under Section 362(d)(1). E.g., In re Skipworth, 69 B.R. 526 (Bankr.E.D.Pa.1987); In re Wright, Egan & Associates, 60 B.R. 806 (Bankr.E.D.Pa.1986); In re Keays, 36 B.R. 1016 (Bankr.E.D.Pa.1984). The record establishes that Debtor is in default of his obligation to make the February payment and that certain late charges are also due. Bank also provided evidence that the Property was in poor condition. Where a creditor’s collateral is depreciating in value or otherwise at risk, cause may exist to lift the stay if adequate protection equal to the value of that depreciation from the time the creditor would have been entitled to exercise its state law remedies is not provided. United Savings Assoc. v. Timbers of Inwood Forest, 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988); Paccom Leasing Corp. v. Deico Electronics, Inc., 139 B.R. 945 (9th Cir. BAP 1992). Once the movant meets its burden, as Bank has done here, the burden then shifts to the debtor opposing the relief to establish the absence of “cause.” 11 U.S.C. § 362(g). See generally Nazareth National Bank v. Trina-Dee, Inc., 731 F.2d 170," }, { "docid": "1875715", "title": "", "text": "if any, that the use of cash collateral results in a dimunition of the Noteholders’ interest; 5. Debtors file a plan of reorganization by June 26, 1987; 6. Debtors comply with the cash flow projections and programming reductions testified to at the hearings; and 7. The rights or obligations provided for in the Order be effective only until July 1, 1987, at which time the Court will consider whether to grant continued use of cash collateral. In re Grant Broadcasting of Phila., Inc., 71 B.R. 376, 377-78 (Bankr.E.D.Pa.1987). An equity cushion is a “surplus of value remaining after the amount of indebtedness is subtracted from the fair market value of the collateral.” Commonwealth of Pa. State Employees Retirement Fund v. Roane, 14 B.R. 542, 545 (E.D.Pa.1981). In this case the equity cushion is the balance remaining after subtracting the amount of the Noteholders’ security interests at the time of the Bankruptcy Court’s decision was made from the fair market value of Debtors’ television stations at that same time. As the Bankruptcy Court noted, “[t]here appears to be no dispute among the parties that an ‘equity cushion’ if sufficient in size and unlikelihood of erosion may constitute, in itself, adequate protection.” Id. 71 B.R. at 386; see also, In re Mellor, supra, 734 F.2d at 1400; Commonwealth of Pa. State Employees Retirement Fund v. Roane, supra, 14 B.R. at 544-45; In re Liona Corp., 68 B.R. 761, 767 (Bankr.E.D.Pa.1987); In re Curtis, 9 B.R. 110, 112 (Bankr.E.D.Pa.1981). The dispute among the parties before the Bankruptcy Court was whether such an equity cushion existed. The Bankruptcy Court found that an equity cushion of approximately $25 million existed based upon its factual finding that Debtors’ television stations had a fair market value of about $115.5 million and that the Noteholders’ security interests were only in the amount of approximately $90.5 million. In arriving at this finding, the Bankruptcy Court accepted the valuation conclusion of Debtors’ expert witness, Bruce Cheen, and rejected the valuation conclusion of the Notehold-ers’ expert witness, Anthony Hoffman. One of the reasons for this finding was because the Debtors’ expert" }, { "docid": "14809537", "title": "", "text": "e.g., Gross v. Stereo Component Systems, Inc., 700 F.2d 120 (3d Cir.1983) (in context of motion to reopen default judgment under Rule 60(b)), and, to some extent, the debtor’s absence foreclosed full consideration of the section 362(d) issue on its merits. Secondly, in the interest of justice, courts should be careful not to allow parties to suffer due to the negligence or inadvertence of their counsel. Jackson v. Beech, 636 F.2d 831 (D.C.Cir. 1980); cf. Dunbar v. Triangle Lumber and Supply Co., 816 F.2d 126 (3d Cir.1987) (court should be careful before allowing counsel’s dereliction of duty to result in dismissal). Third, any prejudice to the creditor’s interest can be prevented by reimposing a stay against the creditor only after the debtor has cured any postpetition delinquences, including any postpetition tax and insurance obligations, and by requiring the debtor to compensate the creditor for any expenses incurred in attending the June 1, 1987 hearing. Fourth, I reject the creditor’s implicit position that there is no evidence which the debtor can present which justify denial of the motion for relief from the stay. The failure to make timely postpetition payments does not mandate relief under § 362(d)(1), although it is grounds for such relief. E.g., In re Tashjian, 72 B.R. 968, 973-74 (Bankr.E.D.Pa.1987). By the hearing date, perhaps the debtor will be current postpetition; certainly, he testified that he would be. Moreover, the debtor may be able to show the existence of adequate protection in other ways, such as the existence of an equity cushion. See, e.g., In re Mellor, 734 F.2d 1396 (9th Cir.1984); Commonwealth of Pennsylvania State Employees’ Retirement Fund v. Roane, 14 B.R. 542 (E.D.Pa. 1981); In re Diaconx Corp., 69 B.R. 333 (Bankr.E.D.Pa.1987); In re Liona Corp. N.V., 68 B.R. 761 (Bankr.E.D.Pa.1987). While I do not accept the debtor’s testimony on valuation, it is possible that he can still establish that there is significant equity in the property or that Mrs. May is adequately protected in some other manner. Finally, as stated earlier, I have the authority to reimpose the stay under § 105(a); I would only" }, { "docid": "23500404", "title": "", "text": "to be almost decisive in determining the need for adequate protection.”). Accordingly, the secured creditor lacks adequate protection if the value of its collateral is declining as a result of the stay. It must, therefore, prove this decline in value — or the threat of a decline — in order to establish a prima facie ease. See, e.g., In re Sun Valley Ranches, Inc., 823 F.2d 1373, 1376 (9th Cir.1987); In re Marion Street Partnership, 108 B.R. 218, 225 (Bankr. D.Minn.1989); In re Raymond, 99 B.R. 819, 821-22 (Bankr.S.D.Ohio 1989); In re Planned Sys., Inc., 78 B.R. at 862-63; In re Borchers, 45 B.R. 69, 72 (Bankr.D.Iowa 1984); In re Irving A. Horns Farms Inc., 42 B.R. 832, 837 (Bankr.D.Iowa 1984). Once the movant satisfies this initial burden, the burden shifts to the debtor to go forward with evidence, and ultimately, to prove that the collateral is not declining in value, or that the secured party is adequately protected through periodic payments, an equity cushion, additional or replacement liens or good prospects for a successful reorganization. In re Hinchliffe, 164 B.R. 45, 49 (Bankr.E.D.Pa.1994); see In re Blackwell, 162 B.R. 117, 120 (E.D.Pa.1993) (once the mortgagee makes out a prima facie case, the burden shifts to the debtor to prove that an equity cushion adequately protects the mov- ant’s interest); In re Dacon Bolingbrook Associates, L.P., 153 B.R. 204, 208 (N.D.Ill. 1993) (once movant established prima facie case by establishing debtor’s continued failure to make periodic payments, burden shifted to debtor to demonstrate existence of adequate protection for any significant diminution in value of collateral); In re Ocasio, 97 B.R. 825, 826 (Bankr.E.D.Pa.1989) (after movant established prima facie case and shifted burden of proof to the debtor, the debtor failed to meet her burden of proving that a substantial equity cushion provided adequate protection); Fidelity Bond & Mortgage Co. v. Britton (In re Britton), 9 B.R. 245, 247-48 (Bankr.E.D.Pa.1981) (same); cf. Delaware Valley Savings & Loan Ass’n v. Curtis (In re Curtis), 9 B.R. 110, 112 (Bankr.E.D.Pa.1981) (despite debtor’s failure to make mortgage payments, mortgagee was adequately protected through substantial" }, { "docid": "18509837", "title": "", "text": "taxes), the net operating income of Yorkshire Man- or would be $152,383, not $161,183. Id. at p. 37. Capitalizing the net operating income by utilizing a rate of 10.82 percent would reflect a fair market value of Yorkshire Manor of $1,408,345, some twenty-two thousand dollars less than Mako’s figure under the income approach. While there are other inconsistencies between the income approaches utilized by each appraiser, the Court is of the opinion that they were exemplified by the differences in the capitalization rate and the real property tax expense. Suffice to say, the Court will not inject itself into the role of real estate appraiser and thus accepts $1,400,000 as the maximum fair market value of Yorkshire Manor the date the instant Chapter 11 was filed, October 13, 1988. See In re Markowitz Building Co., 84 B.R. 484, 487 (Bankr.N.D.Ohio 1988) (valuation for purposes of Code § 362(d) should be based upon fair market value). In analyzing equity under Code § 362(d)(2)(A), the Court looks at the difference, if any, between the value of the property at issue and all encumbrances against it — a concept separate and apart from that of adequate protection under Code § 362(d)(1), which examines the value of the property against the movant’s lien and all those senior. See Pistole v. Mellor (In re Mellor), 734 F.2d 1396, 1400-1401 & n. 2 (9th Cir.1984); Stewart v. Gurley, 745 F.2d 1194, 1195 (9th Cir.1984); In re Cardell, 88 B.R. 627, 631 (Bankr.D.N.J.1988); In re Missouri Flats Associates, 86 B.R. 634, 638 (Bankr.E.D.Cal.1988); In re Diplomat Electronics Corp., 82 B.R. 688, 692 (Bankr.S.D.N.Y.1988); In re Belton Inns, Inc., 71 B.R. 811, 817 (Bankr.S.D.Iowa 1987); First Agricultural Bank v. Jug End In the Berkshires, Inc. (In re Jug End In The Berkshires, Inc.), 46 B.R. 892, 901 (Bankr.D.Mass.1985); La Jolla Mortgage Fund v. Rancho El Cajon Associates, 18 B.R. 283, 287 (Bankr.S.D.Cal.1982). See also M. Bienenstock, Bankruptcy Reorganization, 134-136 & n. 92-93 (1987). But see Central Fla. Prod. Credit Ass’n v. Spring Garden Foilage, Inc. (In re Spring Garden Foliage, Inc.), 15 B.R. 140,143 (Bankr.M.D.Fla.1981); Wolford v. Wolford" }, { "docid": "14809538", "title": "", "text": "the motion for relief from the stay. The failure to make timely postpetition payments does not mandate relief under § 362(d)(1), although it is grounds for such relief. E.g., In re Tashjian, 72 B.R. 968, 973-74 (Bankr.E.D.Pa.1987). By the hearing date, perhaps the debtor will be current postpetition; certainly, he testified that he would be. Moreover, the debtor may be able to show the existence of adequate protection in other ways, such as the existence of an equity cushion. See, e.g., In re Mellor, 734 F.2d 1396 (9th Cir.1984); Commonwealth of Pennsylvania State Employees’ Retirement Fund v. Roane, 14 B.R. 542 (E.D.Pa. 1981); In re Diaconx Corp., 69 B.R. 333 (Bankr.E.D.Pa.1987); In re Liona Corp. N.V., 68 B.R. 761 (Bankr.E.D.Pa.1987). While I do not accept the debtor’s testimony on valuation, it is possible that he can still establish that there is significant equity in the property or that Mrs. May is adequately protected in some other manner. Finally, as stated earlier, I have the authority to reimpose the stay under § 105(a); I would only do so after notice and hearing. Were the debtor to request relief under § 105(a), the accompanying hearing would be functionally equivalent to the hearing held on the debtor’s current request and I see no point in further delaying resolution of this dispute. Therefore, I will give the debtor the reconsideration hearing he requests. At the hearing, in fairness to Mrs. May who, when faced with no opposition in court on June 1, 1987, presented only part of her case, I will allow her to amplify her case in chief. For example, if she believes that the debtor’s prior bankruptcy dismissal renders the current petition improper, see 11 U.S.C. § 109(g), she may present evidence in support of that position. For his part, the debtor will be free to meet his burden under section 362(d) in whatever manner he chooses. At the same time, however, I will require that the debtor pay $300.00 to reimburse Mrs. May for counsel fees and costs incurred in attending the June 1,1987 hearing. See In re Dougherty, 76 B.R." }, { "docid": "9340755", "title": "", "text": "but cites no authority. In Illinois, a debtor who wishes to redeem property must pay the sale price of the property and interest at the rate of 10%, calculated from the time of sale. Ill.Rev. Stat. ch. 110, Sections 12-122 and 12-128. In this case, the Debtors are not redeeming property sold at a sheriff’s sale. They are satisfying a judgment. The applicable interest rate is 9%. The Court finds that the debt owed to Home Federal is approximately $202,885. However, any equity cushion that exists must be reduced by delinquent taxes. The real estate taxes for 1986, in the amount of $3,027.60, have not been paid. The real estate taxes for 1987 are accruing, the Court assumes, at the same rate. The equity cushion enjoyed by Home Federal is approximately $35,000. The Debtors argue that the equity cushion adequately protects Home Federal’s claim. Home Federal argues that a cushion of 14.5% is inadequate. The purpose behind the automatic stay is to preserve the status quo and give the debtor a breathing spell to get his economic house in order. In re Coors of the Cumberland, Inc., 19 B.R. 313 (Bahkr.M.D.Tenn.1982); LaJolla Mortgage Fund v. Rancho El Cajon Assoc., 18 B.R. 283 (Bankr.S.D.Ca.1982). As a countervailing policy, Section 361 of the Code was included to protect the interests of secured creditors during the pendency of bankruptcy. In re Timbers of Inwood Forest Assoc., Ltd., 793 F.2d 1380 (5th Cir.1986), on rehearing, 808 F.2d 363 (1987), cert. gr., — U.S. —, 107 S.Ct. 2459, 95 L.Ed.2d 868 (1987); In re Briggs Transportation Co., 780 F.2d 1339 (8th Cir.1985); In re American Mariner Industries, Inc., 734 F.2d 426 (9th Cir.1984). Case law has established that the existence of an equity cushion may, in and of itself, constitute adequate protection for an over-secured creditor. In re Mellor, 734 F.2d 1396 (9th Cir.1984); In re Ritz Theatres, Inc., 68 B.R. 256 (Bankr.M.D.Fla.1987). Whether an equity cushion does constitute adequate protection is determined on a case-by-case basis. In re Tucker, 5 B.R. 180 (Bankr.S.D.N.Y.1980). Case law has almost uniformly held that an equity cushion of" }, { "docid": "9340757", "title": "", "text": "20% or more constitutes adequate protection. In re San Clemente Estates, 5 B.R. 605 (Bankr.S.D.Ca.1980) (65% is adequate); In re Nashua Trust Co., 73 B.R. 423 (Bankr.D.N.J.1987) (50% is adequate); In re Ritz Theatres, supra. (38% is adequate); In re Dunes Casino Hotel, 69 B.R. 784 (Bankr.D.N.J.1986) (30% is adequate); In re Helionetics, 70 B.R. 433 (Bankr.C.D.Ca.1987) (20.4% is adequate); and, In re Mellor, supra, (20% is adequate); But see, In re Lee, 11 B.R. 84 (Bankr.E.D.Pa.1981) (41% requires payment of current interest). Case law has almost as uniformly held that an equity cushion under 11% is insufficient to constitute adequate protection. Ukrainian Savings and Loan Assoc. v. The Trident Corp., 22 B.R. 491 (E.D.Pa.1982) (10% is inadequate); In re McGowan, 6 B.R. 241 (Bankr.E.D.Pa.1980) (10% is inadequate); In re Liona Corp., N.V., 68 B.R. 761 (Bankr.E.D.Pa.1987) (8.9% inadequate); In re Jug End in the Berkshires, Inc., 46 B.R. 892 (Bankr.D.Mass.1985) (8.6% insufficient); In re Castle Ranch of Ramona, Inc., 3 B.R. 45 (Bankr.S.D.Ca.1980) (8.6% is insufficient); and, In re LeMay, 18 B.R. 659 (Bankr.D.Mass.1982) (7% is inadequate); But see, In re Carson, 34 B.R. 502 (D.Ka.1983) (11% is adequate). Case law is divided on whether a cushion of 12% to 20% constitutes adequate protection. In re Shaller, 27 B.R. 959 (W.D.Wisc.1983) (17% to 18% is insufficient); In re Hawaiian Pacific Industries, 17 B.R. 670 (Bankr.D.Ha.1982) (15% is adequate); In re Rodgers Development Corp., 2 B.R. 679 (Bankr.E.D.Va.1980) (17% is adequate); In re Pitts, 2 B.R. 476 (Bankr.C.D.Ca.1979) (15% is adequate). In Rodgers Development the court determined the property securing the creditor’s debt to be worth $750,000 and an equity cushion of $130,000. The court also noted that both expert witnesses who testified were of the opinion that the property would increase in value over time. In Pitts, the second mortgage holder’s cushion was $19,-125 on a $125,000 parcel of property. Although interest was accruing at $1,000 per month, the debtor was making the current payments on the first mortgage, thus creating more equity for the second mortgage holder. The court noted that the cushion was minimal, fragile and precarious." }, { "docid": "10178997", "title": "", "text": "at a final hearing, the movants will not sustain their burden and that equity, within the meaning of section 362(d)(2)(A), is likely to exist. Thus, I need not reach the question whether the hotel is needed for the debtor’s reorganization under section 362(d)(2)(B). See Ukrainian Savings and Loan Association v. Trident Corp., 22 B.R. 491, 493 (E.D.Pa.1982). While the movants possess the burden of proof on the issue of equity, the debtor has the burden of proving that the movants are adequately protected for purposes of determining issues raised by section 362(d)(1). 11 U.S.C. § 362(g)(2); accord, e.g., Matter of Schaller, 27 B.R. 959 (W.D.Wisc.1983). For the following reasons, I believe that the debtor is unlikely to sustain its burden at a final hearing. It is the responsibility of the debtor to propose adequate protection for the mov-ants; it is not for the court to impose adequate protection. 2 Collier on Bankruptcy 11360.01[2], at 361-8 (15th ed. 1986). Throughout this proceeding, the debtor has only suggested one method by which the movants may be adequately protected — the existence of an “equity cushion.” Nei ther periodic cash payments nor replacement liens were offered, see 11 U.S.C. 361(1), (2), although movants’ counsel stated that periodic cash payments equal to the per diem rate for the three mortgages, plus payment of the 1987 real estate taxes would protect the movants’ interests. An equity cushion has been defined as “the surplus of value remaining after the amount of indebtedness is subtracted from the fair market value of the collateral.” Commonwealth of Pennsylvania State Employees Retirement Fund v. Roane, 14 B.R. 542, 545 (Bankr.E.D.Pa.1981). In making this calculation, the court compares the value of the property to the sum of the movant’s secured claim and those secured claims senior to that of the movant. E.g., In re Jug End in the Berkshires, Inc., 46 B.R. at 901. As the debtor notes, and I agree, in certain circumstances, an equity cushion by itself can constitute adequate protection within the meaning of section 362(d)(1). See, e.g., In re Mellor, 734 F.2d 1396, 1400 (9th Cir.1984); In" }, { "docid": "2178968", "title": "", "text": "repaired. See, e.g., In re Tucker, 5 B.R. 180, 6 B.C.D. 699, 2 C.B.C.2d 535, CCH ¶ 67955 (Bkrtcy.S.D.N.Y.1980); In re Monroe Park, 17 B.R. 934, 6 C.B.C.2d 139 (U.S.D.C.Del.1982); In re Alyucan Interstate Corp., supra. The primary, and often determinative factor, is the existence of an adequate equity cushion. Most courts find that a creditor’s interest is adequately protected if the value of its security exceeds the amount of its claim by a “sufficient” amount. What is a “sufficient” cushion has been the subject of much litigation and evades a definitive formula as much as “adequate protection” does. See, e.g., In re Hawaiian Pac. Industries, 17 B.R. 670 (Bkrtcy.D.Hawaii 1982) where the court found without explication that a 15% equity cushion in real estate was sufficient; In re San Clemente Estates, 5 B.R. 605, 6 B.C.D. 838, 2 C.B.C.2d 1003 (Bkrtcy.S.D.Cal.1980) where the court found a 65% cushion sufficient; In re Schlichter, 22 B.R. 666 (Bkrtcy.E.D.Pa.1982) where $150,000.00 equity in $1,250,000.00 of real estate was found sufficient; Ukranian Sav. and Loan Ass’n v. Trident Corp., 22 B.R. 491 (U.S.D.C.E.D.Pa.1982) where $30,-000.00 equity in $280,000.00 of real estate was found insufficient; In re LeMay, 18 B.R. 659 (Bkrtcy.D.Mass.1982) where a 7% cushion was found inadequate. The emerging view, however, is that an otherwise sufficient cushion may not adequately protect the creditor if the cushion is being eroded by accruing interest and/or depreciation. In In re 5-Leaf Clover Corp., 6 B.R. 463 (Bkrtcy.S.D.W.Va.1980) the court required the debtor to maintain the equity cushion and forestall the erosion with a $35,000.00 interest payment. See also In re Rogers Dev. Corp., 2 B.R. 679, 5 B.C.D. 1392, 1 C.B.C.2d 499, CCH ¶ 67627 (Bkrtcy.E.D.Va.1980). In In re Monroe Park, supra, the court granted relief from stay based on an eroding equity cushion. In In re Pitts, 2 B.R. 476, 5 B.C.D. 1129, 1 C.B.C.2d 241 (Bkrtcy.C.D.Cal.1979), the court found an eroding $19,000.00 cushion on security worth $125,000.00 inadequate, but it continued the hearing to determine if the debtor could maintain and avoid further dissipation of the cushion. The Court finds in the case" }, { "docid": "4715588", "title": "", "text": "facto bankruptcy-filing clause which, as one of the competing Creditors’ Committees points out, is unenforceable. See e.g., In re Bryant, 43 B.R. 189, 195 (Bankr.E.D. Mich.1984); and In re Rose, 21 B.R. 272, 275-76 (Bankr.D.N.J.1982). All payments of interest were made pre-petition. As the Creditors’ Committee referred to supra further argued, there is no time limit set forth in the documents by which the Debtors must obtain the line of credit from the Allied Bank of Texas. We are not prepared to hold that a failure to do so for only several months constitutes a violation of this condition. Therefore, we hold that the Secured Noteholders’ interests will accrue, at this point, at the rate of $5 million per annum. The Debtors have the burden on all other issues, i.e., establishing that the aforesaid security interest of the Secured Noteholders will be adequately protected. The strategy of the Debtors, which has, by at least implication, been questioned by the unsecured creditors, including the Programmers, is to contend that there is a sufficient “equity cushion” to secure the interests of the Secured Noteholders. There appears to be no dispute among the parties that an “equity cushion,” if sufficient in size and unlikelihood of erosion, may constitute, in itself, adequate protection. See, e.g., In re Mellor, 734 F.2d 1396, 1400 (9th Cir.1984); Commonwealth of Pennsylvania State Employees Retirement Fund v. Roane, 14 B.R. 542, 544-45 (E.D.Pa.1981) (per BECHTLE, J.); In re Liona Corp., 68 B.R. 761, 767 (Bankr.E.D. Pa.1987); and In re Curtis, 9 B.R. 110, 112 (Bankr.E.D.Pa.1981). In light of our factual finding that the Debtor television stations are worth about $115.5 million and that the Secured Noteholders’ security interests are in the amount of but $90.5, we must conclude that there is a substantial equity cushion, of approximately $25 million and over twenty-seven (27.5%) percent at present. Moreover, as per our previous conclusion that the Secured Noteholders have only met their burden of showing that their interests will accrue at approximately $5 million per annum, it seems very likely that the equity cushion will increase rather than decrease over the" } ]

[ { "docid": "22354009", "title": "", "text": "basis for a different rule regarding a plan’s alleged violation of Title VII. This case also fits readily within the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973). Once a plaintiff establishes a prima facie case that race or sex has been taken into account in an employer’s employment decision, the burden shifts to the employer to articulate a nondiscriminatory rationale for its decision. The existence of an affirmative action plan provides such a rationale. If such a plan is articulated as the basis for the employer’s decision, the burden shifts to the plaintiff to prove that the employer’s justification is pre-textual and the plan is invalid. As a practical matter, of course, an employer will generally seek to avoid a charge of pretext by presenting evidence in support of its plan. That does not mean, however, as petitioner suggests, that reliance on an affirmative action plan is to be treated as an affirmative defense requiring the employer to carry the burden of proving the validity of the plan. The burden of proving its invalidity remains on the plaintiff. The assessment of the legality of the Agency Plan must be guided by our decision in Weber, supra. In that case, the Court addressed the question whether the employer violated Title VII by adopting a voluntary affirmative action plan designed to “eliminate manifest racial imbalances in traditionally segregated job categories.” Id., at 197. The respondent employee in that case challenged the employer’s denial of his application for a position in a newly established craft training program, contending that the employer’s selection process impermissibly took into account the race of the applicants. The selection process was guided by an affirmative action plan, which provided that 50% of the new trainees were to be black until the percentage of black skilled craft-workers in the employer’s plant approximated the percentage of blacks in the local labor force. Adoption of the plan had been prompted by the fact that only 5 of 273, or 1.83%, of skilled craftworkers at the plant were black, even though the work force" } ]

[ { "docid": "20328597", "title": "", "text": "motion for summary judgment, but that the government might respond to a motion filed before the close of discovery by asking for time to complete discovery under Rule 56. Id. at 6-7. Accepting Judge Robertson’s invitation, Shea promptly filed his Motion for Summary Judgment on New Year’s Day 2010. Pi’s. Mot. Summ. J. [74], Defendant responded by filing a Motion to Strike under Federal Rule of Civil Procedure 56(e) (now Rule 56(c)), or in the alternative to deny the motion pending further discovery pursuant to Federal Rule of Civil Procedure 56(f) (now Rule 56(d)). Mot. Strike [77] at 1, Feb. 1, 2010. Defendant asserted that because plaintiff was incompetent to testify on statistical matters vital to his Title VII case and provided no expert testimony, other than his own analysis, he failed to meet Rule 56(e)’s requirement to “set out facts that would be admissible in evidence.” Id. at 1-2. In the alternative, defendant requested more time for discovery because of plaintiffs failure to make Rule 26(a)(2)(B) disclosures, which were required to accompany his “expert” statistical analysis. Id. at 2. Defendant, therefore, desired to depose Shea in order to obtain information regarding his qualifications and background, and the analytical methods he used to create his statistical evidence. Id. at 2; Deck of Counsel [77-4] at 2. Defendant also requested time to “find persons knowledgeable about the Department’s 1990-92 MLAAP” program and to retain their own rebuttal expert witness. Id. at 2-3. One day later, with little discussion or guidance and before plaintiff even filed an opposition, the Court denied the government’s Motion to Strike [77]. Order [78] at 2, Feb. 2, 2010. The Court held in abeyance plaintiffs Motion for Summary Judgment and instructed the government that it had no obligation to respond to it until discovery was complete. Id. Defendant then filed a Motion for Reconsideration asking the Court to review its Order [78]. Mot. Recons. [93] at 1, Apr. 5, 2011. The next day, in a hearing before Judge Sullivan on April 6, 2011, the parties stipulated that discovery had been completed. See Shea v. Clinton, 850 F.Supp.2d" }, { "docid": "16528833", "title": "", "text": "particularly probative, summary judgment may be granted. Id. at 249-50, 106 S.Ct. at 2510-11. Finally, in passing on such a motion, the court is not at liberty to weigh evidence or resolve factual disputes. Id. at 249, 255, 106 S.Ct. at 2510, 2513; Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1380 (3d Cir.1991). Rather, the court is bound to view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir.1992). The claims of employment discrimination on the basis of race brought by plaintiff and Taxman are properly analyzed under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 626, 107 S.Ct. 1442, 1448, 94 L.Ed.2d 615 (1987). There is no dispute that plaintiff and Taxman have established a prima facie case; indeed, the Board’s concession that it took race into account in making the employment decision is sufficient in and of itself to establish a prima facie case. Higgins v. Vallejo, 823 F.2d 351, 355 (9th Cir.1987), cert. denied, 489 U.S. 1051, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989). The burden, therefore, shifts to the Board to articulate a legitimate, nondiseriminatory reason for its action. Id. “The existence of an affirmative action plan provides such a rationale”. Id. The Board having met its burden of production, the burden shifts back to plaintiff and Taxman to show that the plan is invalid. Id. Plaintiff and Taxman at all times bear the burden of proving the plan’s invalidity. Id. A. Supreme Court Authority on Reverse Discrimination Under Title VII: Weber and Johnson This court’s analysis of the Board’s affirmative action plan must begin with the Supreme Court’s decision in United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). The Court" }, { "docid": "19194320", "title": "", "text": "receive a passing grade on an oral examination, and (e) pass a background cheek. Shea alleged that he would have passed the screening process, but was excluded from consideration solely because of his race, as there was no certification of need. Specifically, Shea alleged harm because his hiring at entry-level rather than mid-level grade has subjected him to lower pay and fewer promotion opportunities than members of minority groups admitted under the MLAAP, in violation of his rights under Title VII. Shea also alleged constitutional violations, but the Court dismissed those claims and Shea did not appeal the dismissal. The Title VII claim is the only one still before the Court. See Shea v. Clinton, 850 F.Supp.2d 153, 156 (D.D.C.2012) (providing factual and procedural history of ease). The Court originally granted State’s Motion to Dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) because the statute of limitations had expired. Mem. & Order, Sept. 30, 2003, ECF Nos. 15 & 16. On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed and remanded. Shea v. Rice, 409 F.3d 448 (D.C.Cir.2005) (holding that each time employer pays employee less than another for discriminatory reason, that pay event is a discrete discriminatory event with own statute of limitations). In light of the Supreme Court’s subsequent decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007) — which brought the D.C. Circuit’s analysis into question — this Court granted State’s Motion for Summary Judgment. Shea v. Rice, 587 F.Supp.2d 166 (D.D.C.2008). While this case was again on appeal, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009), which abrogated the Supreme Court’s holding in Ledbetter. The D.C. Circuit remanded for reconsideration in light of this intervening change. Shea v. Clinton, No. 08-5491, 2009 WL 1153448, at *1 (D.C.Cir. Apr. 2, 2009). This Court then denied the remaining portions of both parties’ Motions for Summary Judgment. Mem. Order, Aug. 11, 2009, ECF No. 69. The Court also denied" }, { "docid": "6912213", "title": "", "text": "MEMORANDUM OPINION ROYCE C. LAMBERTH, Chief Judge. Before the Court are defendant’s Motion for Reconsideration [93] and plaintiffs Motion for Reconsideration of Four Matters [85] (“Shea Mot. Recons.”). Each party requests reconsideration of the Court’s denial of cross-motions for summary judgment, and each party requests reconsideration of part of the Court’s order granting defendant’s Motion for Leave to File and denying defendant’s Motion to Strike. See generally Aug. 11, 2009 Mem. Order [69]; Feb. 2, 2010 Order [78]. At an April 6, 2011 status hearing, Judge Sullivan stayed the proceedings until defendant’s Motion for Reconsideration was fully briefed and addressed by the Court. Subsequently, plaintiffs Motion of Application of Judicial Estoppel to Defendant’s Rule 56(f) Motion (“Estoppel Motion”) [106], defendant’s Consent Motion to Enlarge Time to Respond [107], and plaintiffs Motion for Clarification [108] were filed. Upon consideration of the parties’ motions and supporting briefs, as well as the record upon which the original orders were based, the court will deny each party’s Motion for Reconsideration, will grant defendant’s Consent Motion to Enlarge Time to Respond, and will deny plaintiffs Motion for Clarification as moot. 1. BACKGROUND This case is a long-running employment discrimination case in which Mr. William Shea (“Shea”) alleges that the State Department (“State”) violated his rights under Title VII of the Civil Rights Act of 1964 (42 U.S.C.2000e et seq.). See generally Compl. [1]. A. Basis for the Complaint State’s Mid-Level Minority Hiring Program (“MLAAP”) was in force when Shea was hired in 1992. See Mem. P. & A. Supp. Def.’s Mot. Recons. (“State Recons. P. & A.”) at 3 (noting that the MLAAP ran from 1987 to 1993). Mid-level hiring allowed a Foreign Service candidate to be hired directly into a higher grade rather than into an entry-level grade. See Def.’s Mot. Summ. J. (“State MSJ”) [46] Statement of Material Facts Not in Genuine Dispute (“State Mat. Facts”) ¶ 6. Mid-level hiring required either a “certification of need” that an outside hire was required, or membership in one of a set of specified minority groups under the MLAAP. See id. ¶ 7. Candidates for mid-level" }, { "docid": "19194331", "title": "", "text": "survive a motion to dismiss.” Het-tinga v. United States, 677 F.3d 471, 480 (D.C.Cir.2012) (per curiam). The Court’s previous denial of summary judgment does not mean that the laches defense would not survive a motion to dismiss. Plaintiff claims that allowing amendment to add a laches defense would unduly delay trial and prejudice the plaintiff. The plaintiff has not specifically indicated what additional discovery would be required on this matter. He claims that he would be prejudiced because now he would have to “get serious about laches.” PL’s Opp’n to Def.’s Mot. Am. 12. This level of prejudice does not overcome Rule 15(a)’s mandate to freely allow amendment. B. Amendment to Include Affirmative Defense of Failure to Mitigate Damages The defendant also seeks leave to amend its Answer to include an affirmative defense of failure to mitigate damages. State claims that “information regarding Plaintiffs failure to apply for a mid-level position in the race-neutral Mid-Level Foreign Service Career Candidate Program did not become known to the Defendant until very recently[.]” Def.’s Mot. Am. 5. With this new discovery, defendant seeks leave to include this affirmative defense. Shea emphasizes that this amendment comes ten years after the filing of this suit, and roughly two decades after the events giving rise to the defense. By raising mitigation now, plaintiff claims, State exhibits a dilatory motive and would cause undue delay and prejudice. PL’s Opp’n to Def.’s Mot. Am. 4-5, 17-19. Focusing on how long this case has been pending is not as helpful here. The plaintiff filed this case over a decade ago, but neither party can be “blamed” for some of the case’s lengthier delays. When Shea first filed his complaint, State moved to dismiss, in part, because the statute of limitations had run. Def.’s Mot. Dismiss 10-11, Jan. 21, 2003, ECF No. 11. The Court agreed that the case was time-barred, and granted State’s motion. Order, Sept. 30, 2003, ECF No. 15; Mem., Oct. 31, 2003, ECF No. 16. The D.C. Circuit disagreed, and remanded the ease for further proceedings. Shea, 409 F.3d at 453. While on remand, the ease" }, { "docid": "6912221", "title": "", "text": "denied.” Pueschel, 606 F.Supp.2d at 85. III. ANALYSIS State argues that the Court erred as a matter of law by analyzing the MLAAP under Title VII, but the statutory text, legislative history, and State’s supporting evidence do not support State’s argument, and hence State’s request for reconsideration of that issue will be denied. Neither party demonstrates the extraordinary circumstances leading to harm or injustice that would warrant reconsideration of the remaining issues raised in their motions, hence both parties’ motions for reconsideration will be denied. Because resolution of Shea’s Estoppel Motion will impact State’s response to Shea’s Motion for Summary Judgment, State’s Motion to Enlarge Time to Respond will be granted, and Shea’s Motion for Summary Judgment will remain in abeyance pending the Court’s resolution of the Estoppel Motion. Shea’s Motion for Clarification is now moot, and hence will be denied. A. State Has Not Met Its Burden of Showing that the Court Applied Incorrect Law in Analyzing the MLAAP. State argues that the MLAAP was a congressionally-mandated affirmative action program that created an exception to Title VII, and that the Court erred as a matter of law by interpreting the program as a voluntary affirmative action program under Title VII. See State Recons. P. & A. at 2. Such an error would be valid grounds for reconsideration of the Court’s prior order. However, State has not demonstrated that Congress intended its enactment to be construed as an exception to (and hence immune from challenge under) Title VII, has not demonstrated that the MLAAP itself was Congress’ mandated solution, and has not demonstrated that its “interpretation” is entitled to Chevron deference. State also has not shown that some harm or injustice will result by denial of reconsideration. In 1985, Congress enacted the Foreign Relations Authorization Act for Fiscal Years 1986-87 (“FRAA”). In that Act, Congress required the State Department to develop plans to increase representation of minorities and women in the Foreign Service, with a special emphasis on mid-level employees. Pub.L. 99-93 § 152. The relevant section, in its entirety, requires: (a) Development of program — The head of each" }, { "docid": "6912236", "title": "", "text": "for reconsideration will be denied. More importantly, in its original decision, the Court found that “[t]he necessary conclusion is that genuine issues of material fact remain in dispute as to the lawfulness of State’s affirmative action program.” Aug. 11, 2009 Mem. Order [69] at 9. Shea has not contested this conclusion, only the presumption that the program is lawful until proven otherwise. See generally Shea Mot. Recons, at 23-28. Arguably, the Court’s analysis of Shea’s Title VII claim might have ended here, as the summary judgment motion fails for the Title VII claim on this finding alone. But the Court went ahead and addressed the other two prongs of the Title VII test that it enumerated. See Aug. 11, 2009 Mem. Order [69] at 9-11. The first and second issue in Shea’s motion for reconsideration address the Court’s finding with respect to Shea’s demonstration of harm. Were the Court to change its decision on these two issues, Shea’s summary judgment motion would still fail on the unlawfulness element. Shea cannot show that any harm or injustice would result from denial of reconsideration of these issues when he already conceded the point on the unlawfulness of the MLAAP. Therefore Shea’s first two issues for reconsideration will also be denied. D. Shea Has Not Shown that the Court Erred by Allowing State to File Responses to His Request for Admissions Out of Time Shea’s third issue for reconsideration concerns the Court’s decision to grant State’s motion for leave to file responses to Shea’s requests for admissions out of time. See Shea Mot. Recons, at 1; see generally Def.’s Mot. Leave to File [75]; Feb. 2, 2010 Order [78]. Shea argues that the Court misapplied the standard for withdrawing or amending an admission under Rule 36(b) of the Federal Rules of Civil Procedure. Shea Mot. Recons, at 19-23. Shea’s opposition to State’s motion only-objected to allowing State to respond to admission number 10. Pl.’s Opp. to Def.’s Rule 36(b) Mot. [76] at 1; Shea Mot. Recons. at 20. Admission number 10 stated: Plaintiff met the minimum objective qualifications to have applied to start" }, { "docid": "6912234", "title": "", "text": "strike Shea’s motion will be denied. C. Shea Has Not Met His Burden of Showing that Reconsideration of the Court’s Title VII Analysis is Warranted. Upon remand, the Court denied the parties’ cross-motions for summary judgment. Having addressed the issues State raised for reconsideration, the Court now turns to the issues that Shea has raised. Three of the four issues Shea posits (items numbered 1, 2, and 4) relate to the Court’s analysis of Shea’s Title VII claim: (1) that the Court placed the burden on Shea to establish the amount of damages to which he was entitled, (2) that the Court failed to give conclusive effect to certain requests for admissions, and (4) that the MLAAP must be presumed lawful until Shea demonstrates that it is not. See Shea Mot. Recons, at 1. Because a decision in Shea’s favor here would still not result in the Court granting summary judgment, Shea has not met his burden of demonstrating that harm or injustice would result from the denial of reconsideration of these three issues. In reviewing Shea’s Title VII claim, the Court noted that Shea had to satisfy three elements of the claim: (1) that the MLAAP was unlawful, (2) that except for his race, Shea was qualified for the program, and (3) that Shea' was damaged during the period in question by the continuing effects of the MLAAP. Aug. 11, 2009 Mem. Order [69] at 5-6. The threshold issue for a court addressing a Motion for Summary Judgment is to ensure “that there is no genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a). Shea’s requests for reconsideration fail at this point. Shea’s fourth issue for reconsideration is the Court’s finding that the MLAAP must be presumed lawful until Shea demonstrates otherwise. Shea Mot. Recons, at 1. Shea notes that this finding is correct under Supreme Court precedent, and presents his request for reconsideration as a proffer for the record in the event this case is appealed to the Supreme Court. Shea Mot. Recons, at 23. As the Court’s decision was admittedly correct under the law, Shea’s fourth issue" }, { "docid": "6912215", "title": "", "text": "hiring were also required (a) to have substantial professional experience, (b) to receive a passing grade on an oral examination, and (c) to pass a background check. See id. ¶ 8. Shea alleged that he would have passed the screening process but was excluded from consideration for mid-level hiring solely on the basis of his race, as there was no certification of need. See Compl. ¶ 6. Specifically, Shea alleged harm because his hiring at entry-level rather than mid-level has subjected him to lower pay and fewer promotion opportunities than members of minority groups admitted under the MLAAP, on an ongoing basis, in violation of his rights under Title VII. See id. Shea also alleged constitutional violations, but the Court dismissed that claim, and Shea did not appeal the dismissal, State Recons. P. & A. at 8 n. 5, so the Title VII claim is the only one before the Court. B. Procedural History The Court originally granted State’s Motion to Dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the basis that the statute of limitations had expired. See Sept. 30, 2003 Order [15]; Sept. 30, 2003 Mem. [16]. On appeal, the U.S. Court of Appeals for the D.C. Circuit re versed and remanded. Shea v. Rice, 409 F.3d 448 (D.C.Cir.2005) (holding that each time an employer pays an employee less than another for a discriminatory reason, that pay event is a discrete discriminatory event with its own statute of limitations). In light of the Supreme Court’s subsequent decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007), which brought the D.C. Circuit’s analysis into question, this Court granted State’s Motion for Summary Judgment. Nov. 21, 2008 Order [64]; Nov. 21, 2008 Mem. [63]. While this case was again on appeal, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, Pub.L. No. 111-2, 123 Stat. 5 (2009), which abrogated the Supreme Court’s holding in Ledbetter. The D.C. Circuit remanded for reconsideration in light of the intervening change of law." }, { "docid": "19194319", "title": "", "text": "MEMORANDUM OPINION ROYCE C. LAMBERTH, Chief Judge. Before the Court is the defendant’s Motion to Amend Answer, Sept. 20, 2012, ECF No. 129. Upon consideration of the motion, the plaintiffs Opposition, Sept. 24, 2012, ECF No. 130, the defendant’s Reply thereto, Oct. 3, 2012, ECF No. 133, and the record herein, the Court will grant the defendant’s Motion to Amend Answer. I. BACKGROUND This is a Title VII discrimination claim brought by pro se plaintiff William Shea, a White career Foreign Service officer, against the Department of State (“State”). Compl., Mar. 3, 2002, ECF No. 1. State had a Mid-Level Minority Hiring Program (“MLAAP”) in force when it hired Shea in 1992. Mid-level hiring allowed State to hire a Foreign Service candidate directly into a higher grade, rather than into an entry-level grade. Mid-level hiring required a “certification of need” either that an outside hire was required, or the candidate was a member of a specified minority group under the MLAAP. Candidates for mid-level hiring were also required to (a) have substantial professional experience, (b) receive a passing grade on an oral examination, and (e) pass a background cheek. Shea alleged that he would have passed the screening process, but was excluded from consideration solely because of his race, as there was no certification of need. Specifically, Shea alleged harm because his hiring at entry-level rather than mid-level grade has subjected him to lower pay and fewer promotion opportunities than members of minority groups admitted under the MLAAP, in violation of his rights under Title VII. Shea also alleged constitutional violations, but the Court dismissed those claims and Shea did not appeal the dismissal. The Title VII claim is the only one still before the Court. See Shea v. Clinton, 850 F.Supp.2d 153, 156 (D.D.C.2012) (providing factual and procedural history of ease). The Court originally granted State’s Motion to Dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) because the statute of limitations had expired. Mem. & Order, Sept. 30, 2003, ECF Nos. 15 & 16. On appeal, the U.S. Court of Appeals for" }, { "docid": "20328595", "title": "", "text": "MEMORANDUM AND ORDER ROYCE C. LAMBERTH, Chief Judge. Pending before the Court is plaintiffs Motion [106] asking the Court to apply judicial estoppel to bar the defendant from filing an Opposition to plaintiffs Mo tion for Summary Judgment [74]. Upon consideration of the Motion [106], the Opposition [115], the Reply [116], the entire record herein and the applicable law, plaintiffs Motion will be DENIED. I. BACKGROUND AND PROCEDURAL HISTORY This is a Title VII reverse discrimination claim brought by pro se plaintiff William Shea (“plaintiff’ or “Shea”), a career foreign service officer, against the State Department (“defendant,” “State,” or “government”). Compl. [1] at 2, Mar. 3, 2002. In 1992, when Shea was offered an appointment to the Foreign Service, the State Department had in place a Mid-Level Affirmative Action Hiring Program (“MLAAP”) that allowed certain candidates to be hired directly into higher, non-entry-level grades. Id. In a nutshell, Shea claims that his career advancement and pay were handicapped by his race because, as a Caucasian of Irish decent, he was ineligible for MLAAP. Compl. [1] at 3-4. In the present motion, Shea asks the Court to apply the doctrine of judicial estoppel to bar defendant from filing an opposition to his Motion for Summary Judgment [74], or from “presenting evidence or argument contradicting the facts and arguments” plaintiff asserted in his Motion [74]. Mot. [106] at 1, Nov. 7, 2011. In what Shea terms as “more-limited” relief, he asks, in the alternative, that the Court bar defendant from “challenging with evidence or argument” both his qualifications to give opinion testimony and the analysis he uses to support his Title VII claim. Id. at 1, 22-23. Shea’s current Motion [106] has its genesis in a status conference held before Judge Robertson on December 18, 2009. At that hearing, the Court ordered that expert and fact discovery close by April 15, 2010, and gave the parties until May 15, 2010, to file Motions for Summary Judgment. Hr’g Tr. [115-1] at 11, Dec. 18, 2009. Judge Robertson specifically advised Shea that he need not wait for the close of discovery to file his" }, { "docid": "6912231", "title": "", "text": "FRAA mandated establishment of the MLAAP immune to Title VII challenge is one that was promulgated by the agency prior to commencement of litigation or in a rule carrying the force of law. State brought forward neither regulations nor adjudications applying this interpretation. In fact, State’s own evidence refutes its stated interpretation. State’s Motion for Summary Judgment attached a copy of an Equal Employment Opportunity Commission (“EEOC”) final determination of a complaint under the MLAAP. See generally State MSJ Ex. 2 [46-2], State included this exhibit to describe the lifespan of the MLAAP. See State Mat. Facts ¶¶ 4, 13. But this memorandum expressly contradicts State’s assertion that the MLAAP was not a voluntary affirmative action program under Title VII. See State MSJ Ex. 2, at 3 (referring to the MLAAP as “[State’s] voluntarily adopted affirmative action plan”). The EEOC is chartered with promulgating the guidelines for agency affirmative education programs, as well as any program State implemented in response to FRAA. See 5 U.S.C. § 7201(d) (2006); 29 C.F.R. Pt. 1614 (2009); see also 22 U.S.C. § 3922a (2006) (incorporating 5 U.S.C. § 7201 by reference). The EEOC’s interpretation of the MLAAP as a voluntary affirmative action program, while not conclusive, is persuasive. State has not met its burden of showing that the Court made an error of law by finding that the FRAA must be interpreted in conjunction with Title VII. The FRAA clearly does not mandate an exception to Title VII and does not mandate creation of the MLAAP specifically, and the related legislative materials fail to support State’s argument. Further, Chevron deference is not applicable to State’s interpretation, and even if it were applicable, State’s own evidence contradicts the interpretation the Court is being asked to defer to. Therefore State’s request for reconsideration of the applicable law for review of the MLAAP will be denied. B. State Has Not Shown that the Court Erred in Failing to Strike Shea’s Motion for Summary Judgment. State also requested reconsideration of the Court’s denial of its motion to strike Shea’s Motion for Summary Judgment [74], on the basis that" }, { "docid": "19194321", "title": "", "text": "the D.C. Circuit reversed and remanded. Shea v. Rice, 409 F.3d 448 (D.C.Cir.2005) (holding that each time employer pays employee less than another for discriminatory reason, that pay event is a discrete discriminatory event with own statute of limitations). In light of the Supreme Court’s subsequent decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007) — which brought the D.C. Circuit’s analysis into question — this Court granted State’s Motion for Summary Judgment. Shea v. Rice, 587 F.Supp.2d 166 (D.D.C.2008). While this case was again on appeal, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009), which abrogated the Supreme Court’s holding in Ledbetter. The D.C. Circuit remanded for reconsideration in light of this intervening change. Shea v. Clinton, No. 08-5491, 2009 WL 1153448, at *1 (D.C.Cir. Apr. 2, 2009). This Court then denied the remaining portions of both parties’ Motions for Summary Judgment. Mem. Order, Aug. 11, 2009, ECF No. 69. The Court also denied State’s subsequent Motion for Reconsideration. Order, Aug. 20, 2009, ECF No 71. On July 23, 2010 the plaintiff moved to hold discovery deadlines in abeyance until resolution of his latest motions for reconsideration. ECF No. 86. In response, the Court stayed the entire matter until an April 6, 2011 status conference. Minute Order, Mar. 9, 2011. At that conference, the Court orally extended this stay. The stay remained in effect until the Court resolved plaintiffs motions for reconsideration and motion for application of judicial estoppel. See Mem. Op. & Order Denying Pl.’s Mots. Reconsideration, Mar. 23, 2012, ECF Nos. 113 & 114; Mem. & Order Denying Pl.’s Mot. Judicial Estoppel, July 30, 2012, ECF No. 118. On August 17, 2012, State filed a second Motion for Summary Judgment, ECF No. 120, raising the affirmative defense of mitigation of damages, id. at 34-36. Plaintiff objected to State first raising this affirmative defense in a dispositive motion, rather than in a pleading. Pl.’s Opp’n to Def.’s Second Mot. Summ. J. 34, Aug. 30, 2012, ECF No. 123." }, { "docid": "23404607", "title": "", "text": "institutions are founded upon the doctrine of equality,” Regents of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 2748-50, 57 L.Ed.2d 750 (1978), and thus are presumptively unconstitutional. See Personnel Admin. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979). Nevertheless, many cases on the question of equal protection hold that in order to correct the effects of past discrimination against minorities in this country, a narrowly tailored race-conscious affirmative action program will not, under limited circumstances (such as those explained below), violate the fourteenth amendment. See, e.g., United States v. Paradise, 480 U.S. 149, 107 S.Ct. 1053, 1064, 94 L.Ed.2d 203 (1987) (plurality opinion) (Fourteenth Amendment); United Steelworkers v. Weber, 443 U.S. 193, 208, 99 S.Ct. 2721, 2729, 61 L.Ed.2d 480 (1979) (Title VII). Recently, in Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), the Supreme Court clarified the manner in which the defense of a valid affirmative action program fits within the analytical framework for proof of unlawful racial discrimination set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973): “Once a plaintiff establishes a prima fa-cie case that race or sex has been taken into account in an employer’s employment decision, the burden shifts to the employer to articulate a non-discriminatory rationale for its decision. The existence of an affirmative plan provides such a rationale. If such a plan is articulated as the basis for the employer’s decision, the burden shifts to the plaintiff to prove that the employer’s justification is pre-textual and the plan is invalid. As a practical matter, of course, an employer will generally seek to avoid a charge of pretext by presenting evidence in support of its plan. That does not mean, ... that reliance on an affirmative action plan is to be treated as an affirmative defense requiring the employer to carry the burden of proving the validity of the plan. The burden of proving its invalidity remains on the plaintiff.” Johnson, 107 S.Ct. at 1449. As noted, the jury" }, { "docid": "6912220", "title": "", "text": "judge.”); Apr. 6, 2011 Tr. at 13 (explaining that State filed its motion despite internal debate over the propriety of doing so based on the change of judge). Parties should not use motions for reconsideration to attempt to relitigate matters already settled. See Solomon v. Univ. of S. Cal., 255 F.R.D. 303, 305 (D.D.C.2009) (such motions “may not be used to relitigate old matters” (internal citations and quotations omitted)). This is State’s second request for reconsideration of the legal standard under which the MLAAP should be analyzed, see generally Def.’s Mot. Recons. [70], and normally this request would be denied outright. However, because the prior motion was denied without a supporting memorandum, Aug. 20, 2009 Order [71], the Court is entertaining this particular question again in order to more fully explain its reasoning. The Court is applying the standard for reconsideration equally to all issues the parties have presented, and will deny reconsideration unless the party has shown “that reconsideration is warranted, and that some harm or injustice would result if reconsideration were to be denied.” Pueschel, 606 F.Supp.2d at 85. III. ANALYSIS State argues that the Court erred as a matter of law by analyzing the MLAAP under Title VII, but the statutory text, legislative history, and State’s supporting evidence do not support State’s argument, and hence State’s request for reconsideration of that issue will be denied. Neither party demonstrates the extraordinary circumstances leading to harm or injustice that would warrant reconsideration of the remaining issues raised in their motions, hence both parties’ motions for reconsideration will be denied. Because resolution of Shea’s Estoppel Motion will impact State’s response to Shea’s Motion for Summary Judgment, State’s Motion to Enlarge Time to Respond will be granted, and Shea’s Motion for Summary Judgment will remain in abeyance pending the Court’s resolution of the Estoppel Motion. Shea’s Motion for Clarification is now moot, and hence will be denied. A. State Has Not Met Its Burden of Showing that the Court Applied Incorrect Law in Analyzing the MLAAP. State argues that the MLAAP was a congressionally-mandated affirmative action program that created an exception" }, { "docid": "6912235", "title": "", "text": "reviewing Shea’s Title VII claim, the Court noted that Shea had to satisfy three elements of the claim: (1) that the MLAAP was unlawful, (2) that except for his race, Shea was qualified for the program, and (3) that Shea' was damaged during the period in question by the continuing effects of the MLAAP. Aug. 11, 2009 Mem. Order [69] at 5-6. The threshold issue for a court addressing a Motion for Summary Judgment is to ensure “that there is no genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a). Shea’s requests for reconsideration fail at this point. Shea’s fourth issue for reconsideration is the Court’s finding that the MLAAP must be presumed lawful until Shea demonstrates otherwise. Shea Mot. Recons, at 1. Shea notes that this finding is correct under Supreme Court precedent, and presents his request for reconsideration as a proffer for the record in the event this case is appealed to the Supreme Court. Shea Mot. Recons, at 23. As the Court’s decision was admittedly correct under the law, Shea’s fourth issue for reconsideration will be denied. More importantly, in its original decision, the Court found that “[t]he necessary conclusion is that genuine issues of material fact remain in dispute as to the lawfulness of State’s affirmative action program.” Aug. 11, 2009 Mem. Order [69] at 9. Shea has not contested this conclusion, only the presumption that the program is lawful until proven otherwise. See generally Shea Mot. Recons, at 23-28. Arguably, the Court’s analysis of Shea’s Title VII claim might have ended here, as the summary judgment motion fails for the Title VII claim on this finding alone. But the Court went ahead and addressed the other two prongs of the Title VII test that it enumerated. See Aug. 11, 2009 Mem. Order [69] at 9-11. The first and second issue in Shea’s motion for reconsideration address the Court’s finding with respect to Shea’s demonstration of harm. Were the Court to change its decision on these two issues, Shea’s summary judgment motion would still fail on the unlawfulness element. Shea cannot show that any harm or" }, { "docid": "20328603", "title": "", "text": "to [give expert testimony],” more time to find persons with historical knowledge about the MLAAP program, and to retain a rebuttal expert witness. Id. at 11-13. Defendant also requested that the court “deny” plaintiffs Motion [74] for summary judgment “until the close of discovery and until Plaintiff has fully complied with the requirements of Fed.R.Civ.P. 26(a)(2).” Id. In support of defendant’s Motion [77], Assistant United States Attorney Darrell Valdez, in his sworn declaration, stated that because plaintiff had not made any Rule 26 disclosures, defendant “was unable to inquire into Plaintiffs qualifications to ... [give expert testimony], and was further unable to consult and obtain its own expert to rebut the Plaintiffs opinion testimony.” Decl. of Counsel [77-4] at 2. It is clear that defense counsel expected plaintiff to submit a Rule 26 report, and would, thereafter, need time to both depose plaintiff regarding his background and qualifications, and to obtain a rebuttal expert. Id. Mr. Shea, however, was never deposed, Decl. of William Shea [106-3] at 1 (undated), nor does it appear that he ever filed a Rule 26 report, see Shea-Valdez Email Exchange [106-2] at 1, Oct. 21, 2011. The pleadings are devoid of evidence regarding the other requested discovery. Even if the Court read the government’s position as duplicitous, Shea’s motion would still fail because the Court never explicitly accepted the government’s first position, and thus there would be no appearance that the Court was misled. Order [78] at 2. Shea asks the Court to read its April 2, 2010, Order [74] as the Court ruling for the defendant. Mot. [ 106] at 11. In reality, it explicitly denied State’s Motion without reservation, [77] but held plaintiffs Summary Judgment Motion [74] in abeyance until the close of discovery. Order [78] at 2. Thus, the Court’s Order [78] did nothing more than affirm the original discovery schedule set by Judge Robertson at the December 18, 2009, hearing. Hr’g Tr. [115-1] at 11. Because any “[d]oubts about inconsistency often should be resolved by assuming there is no disabling inconsistency,” it would be incorrect to find for plaintiff here, because" }, { "docid": "6912244", "title": "", "text": "to the MLAAP in this context was inadvertent. . Shea's earlier filing [51] was entitled \"Plaintiff's Opposition to Defendant’s Motion for Summary Judgment, and Cross-Motion for Partial Summary Judgment,” while the later filing is entitled \"Plaintiff’s Motion for Summary Judgment.” In ruling on the earlier cross-motions, Judge Robertson noted “Shea asserts that his cross-motion is. for partial’ summary judgment, but it seems to seek across-the-board relief.” Aug. 11, 2009 Mem. Order [69] at 2 n. 1. Shea notes in his Motion for Summary Judgment that it is not a request for reconsideration of the earlier denial, but does not address Judge Robertson's note. Pl.'s Mem. P. & A. [74-2] at 1 n. 1. Because Shea’s Motion for Summary Judgment is not yet fully briefed and hence not yet before the Court, this discrepancy is simply noted. . The original enactment also included subsection (c), pertaining to reporting requirements, which was repealed in a subsequent reauthorization of the FRAA, when reporting requirements from several sections were consolidated. . State cites to Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986), but that case has nothing to do with employment or Title VII, deals only with the language of a specific statute rather than a potential conflict between statutes, and concerns interpretation of the scope of an agency’s rule-making authority under the statute in question. . Arguably § 3922a also includes Title VII by reference, as § 7201 requires reporting on federal affirmative action programs under Title VII’s federal employment provisions. See 5 U.S.C. § 7201(e) (2006). . State failed to bring to the Court’s attention two critical points. First, State failed to note that the 1990 appropriation to which it cites speaks only to the internship program and mentions mid-level employment not at all. Yet State used those congressional findings to bolster its argument regarding how the MLAAP should be interpreted. Second, State failed to mention § 4141a, citing only to § 4141, when both statutory sections were created by the same enactment. As the structure of § 4141a strongly rebuts State’s argument about" }, { "docid": "6912214", "title": "", "text": "Respond, and will deny plaintiffs Motion for Clarification as moot. 1. BACKGROUND This case is a long-running employment discrimination case in which Mr. William Shea (“Shea”) alleges that the State Department (“State”) violated his rights under Title VII of the Civil Rights Act of 1964 (42 U.S.C.2000e et seq.). See generally Compl. [1]. A. Basis for the Complaint State’s Mid-Level Minority Hiring Program (“MLAAP”) was in force when Shea was hired in 1992. See Mem. P. & A. Supp. Def.’s Mot. Recons. (“State Recons. P. & A.”) at 3 (noting that the MLAAP ran from 1987 to 1993). Mid-level hiring allowed a Foreign Service candidate to be hired directly into a higher grade rather than into an entry-level grade. See Def.’s Mot. Summ. J. (“State MSJ”) [46] Statement of Material Facts Not in Genuine Dispute (“State Mat. Facts”) ¶ 6. Mid-level hiring required either a “certification of need” that an outside hire was required, or membership in one of a set of specified minority groups under the MLAAP. See id. ¶ 7. Candidates for mid-level hiring were also required (a) to have substantial professional experience, (b) to receive a passing grade on an oral examination, and (c) to pass a background check. See id. ¶ 8. Shea alleged that he would have passed the screening process but was excluded from consideration for mid-level hiring solely on the basis of his race, as there was no certification of need. See Compl. ¶ 6. Specifically, Shea alleged harm because his hiring at entry-level rather than mid-level has subjected him to lower pay and fewer promotion opportunities than members of minority groups admitted under the MLAAP, on an ongoing basis, in violation of his rights under Title VII. See id. Shea also alleged constitutional violations, but the Court dismissed that claim, and Shea did not appeal the dismissal, State Recons. P. & A. at 8 n. 5, so the Title VII claim is the only one before the Court. B. Procedural History The Court originally granted State’s Motion to Dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal" }, { "docid": "6912243", "title": "", "text": "timely complete briefing of Shea’s Motion for Summary Judgment after the Court rules on the Estoppel Motion. Any such requests must include a copy of the proposed filing. A separate order consistent with this memorandum opinion shall issue this date. . This case was most recently reassigned by consent from Judge Sullivan to Chief Judge Lamberth on October 7, 2011. Reassignment of Civil Case [105]. Previously the case had been randomly reassigned from Judge Robertson to Judge Kennedy on June 4, 2010, and then randomly reassigned to Judge Sullivan on June 30, 2010. Reassignment of Civil Case [80]; Reassignment of Civil Case [83], . State’s Motion for Reconsideration states that the MLAAP required both a certification of need and minority status. See State Recons. P. & A. at 3. However, State's Statement of Material Facts and its supporting exhibits are clear that members of specified minorities were exempt from the formal certification of need under the MLAAP. It may be that the Motion for Reconsideration was referring to mid-level hiring in general and that reference to the MLAAP in this context was inadvertent. . Shea's earlier filing [51] was entitled \"Plaintiff's Opposition to Defendant’s Motion for Summary Judgment, and Cross-Motion for Partial Summary Judgment,” while the later filing is entitled \"Plaintiff’s Motion for Summary Judgment.” In ruling on the earlier cross-motions, Judge Robertson noted “Shea asserts that his cross-motion is. for partial’ summary judgment, but it seems to seek across-the-board relief.” Aug. 11, 2009 Mem. Order [69] at 2 n. 1. Shea notes in his Motion for Summary Judgment that it is not a request for reconsideration of the earlier denial, but does not address Judge Robertson's note. Pl.'s Mem. P. & A. [74-2] at 1 n. 1. Because Shea’s Motion for Summary Judgment is not yet fully briefed and hence not yet before the Court, this discrepancy is simply noted. . The original enactment also included subsection (c), pertaining to reporting requirements, which was repealed in a subsequent reauthorization of the FRAA, when reporting requirements from several sections were consolidated. . State cites to Commodity Futures Trading Comm’n v." } ]

[ { "docid": "7122730", "title": "", "text": "a cross-bill, which was in the nature of a creditor’s bill, to subject the trust property to pay his judgment. In this bill he alleged that there was nothing due from Gage to the city, and set forth with much particularity the defences which Gage had against the claim made by the city. As soon as these pleadings were filed he presented his petition, accompanied by a sufficient bond, for the removal of the suit to the Circuit Court of the United States for the Northern District of Illinois, alleging fot cause that he was a citizen of the State of Alabama, and all the other parties were citizens of Illinois; “ that in the said original bill there is a controversy which is wholly between the said complainants and your petitioner, and which can be fully determined as between them; ” and that, as to the cross-bill, “ the controversy therein is wholly between citizens of different States.” The State court ordered the cause transferred, and on the 1st of May Ayers filed a transcript of the record in the Circuit Court, and had the suit docketed there. ' Afterwards the parties appeared, and on motion of the city the cause was remanded to the State court. From that order Ayers appealed to this court. After the appeal was docketed the city moved to dismiss because the order'remanding the cause was not one from which an appeal is allowed, and because the order was not on the merits of the cause, nor a final order, judgment, or decree from which an appeal lies. This motion was submitted with the case on its merits. There is no doubt of our jurisdiction. Sect. 5 of the act of 1875 (18 Stat., part 3, 472) is as follows: — “ That if, in any suit commenced in a circuit court, or removed from a State court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really" } ]

[ { "docid": "1633850", "title": "", "text": "Co., 140 U. S. 52, 11 Sup. Ct. 690, 35 L. Ed. 331. But as said by the Supreme Court in Ex parte National Enameling Co., 201 U. S. 156, 26 Sup. Ct. 404, 50 L. Ed. 707, decisions of this kind are inapplicable when the liability of the defendants is joint or where there is but a single defendant. And the general rule has been adhered to where a bill has been dismissed as to certain claims and has been sent to a master as to others. Ex parte National Enameling Co., supra. It has likewise been held that a decree dismissing a cross-libel cannot be appealed from until the entire controversy is disposed of Bowker v. United States, 186 U. S. 135, 22 Sup. Ct. 802, 46 L. Ed. 1090. So a decree dismissing a cross-bill has been held not a final decree. Ayres v. Carver, 17 How. 591, 15 L. Ed. 179. And a decree dismissing a bill as to one defendant who has demurred, leaving the case undisposed of as to other defendants who have answered, has been held not to dispose of the whole case and to be subject to appeal after its final determination. Mendenhall v. Hall, 134 U. S. 559, 567, 10 Sup. Ct. 616, 33 L. Ed. 1012. These established principles are decisive here. This case cannot be in this court upon writ of error and at the same time be pending in the District Court for the trial of the second cause of action. The so-called final judgment was not final because it did not dispose of all the matters in litigation between the parties involved by the pleadings. To use the language of the old English case, “the whole matter in the original” was not determined. True, the first cause of action may have been separate from the second. But both causes were in the one suit and in the one record. It was necessary to dispose of both of them to put the record in such shape that a writ of error would lie and to avoid having the" }, { "docid": "22059383", "title": "", "text": "court granted their motion. Defendants appealed. Plaintiffs moved to dismiss the appeal on the ground that the dismissal of the counterclaim does not amount to the refusal of an injunction under § 129, Judicial Code, and was not appealable under that section. The Circuit Court of Appeals denied the motion and reversed the order appealed from. 56 F. (2d) 823. Plaintiffs insist that the court erred in refusing to dismiss the appeal. Equity Rule 30 declares: “ The defendant by his answer shall set out ... his defense to each claim asserted in the bill . . . The answer must state in short and simple form any counterclaim arising out of the transaction which is the subject matter of the suit, and may, without cross bill, set up any set-off or counterclaim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counterclaim, so set up, shall have the same effect as a cross suit, so as to enable the court to pronounce a final decree in the same suit on both the original and the cross claims.” 268 U. S. 709. It is clear that in this suit the court in a single decree may finally determine the merits of the cause of action alleged in the complaint and the counterclaim set up in the answer. The order dismissing the counterclaim is interlocutory. Winters v. Ethell, 132 U. S. 207, 210. Ex parte Railroad Co., 95 U. S. 221, 225. Ayres v. Carver, 17 How. 591, 595. The general rule is that review of interlocutory orders must await appeal from the final decree. But in proceedings for injunctions and receivers exceptions have been made by § 129, Judicial Code: “ Where, upon a hearing in a district court, or by a judge thereof in vacation, an injunction is granted, continued, modified, .refused, or dissolved by an interlocutory order or decree, or an application to dissolve or modify an injunction is refused, or an interlocutory order or decree is made appointing a receiver, or refusing an order to wind" }, { "docid": "22041515", "title": "", "text": "for hearing on the date aforesaid without reference to the rules regulating appeals, filing and printing of briefs, etc.” The order was ambiguous. While without a vacatur of the final decree the District Court could not reconsider the cause and determine it anew, the Circuit Court of Appeals did not in terms vacate the decree. In consequence the order was not understood either by the parties or by the District Court, and the subsequent proceedings were extraordinary. The pleadings were not amended. The District Court was in doubt as to the extent to which testimony should be taken. Counsel for defendant Ickes took the position that they should not be limited to proof of the new contract, but should be permitted to have “a rehearing of the issues raised by the pleadings in this case filed prior to the entry of the final decree in so far as those issues concern the power policy of the Administrator.” They added that there was not time “to file supplemental pleadings, as would be done were this case to proceed in the usual course.” Plaintiffs’ counsel insisted that as the term at which the original decree was entered had expired, there could be no rehearing and accordingly objected to the reception of evidence. They further objected to any evidence not relating to new matter which had arisen since the original decree. The District Court stated that it would take all the evidence offered, but subject to plaintiffs’ objections, reserving its ruling as to admissibility. Evidence was then taken. Mr. Ickes was examined and cross-examined. Plaintiffs moved to strike out statements made by him relating to matters not arising since the decree. At plaintiffs’ instance, a press release of the Public Works Administration was placed in the record as a part of the cross-examination. A letter from the Deputy Administrator of the bureau was introduced by plaintiffs subject to defendants’ objection. This paper was deemed by the court to be irrelevant “to any issue presented by the order remanding the case” and was placed in the record to show plaintiffs’ offer of proof “in" }, { "docid": "12801387", "title": "", "text": "within the context of a contempt proceeding. Since we have jurisdiction over the criminal contempt appeal, we will additionally review the civil contempt appeal on the rationale of judicial economy found in cross-claim, pendant and ancillary jurisdiction. To hold otherwise would require the same parties to litigate basically the same issues in two different courts at the same time. The Proceedings Below In 1969, the United States filed a civil complaint in the District Court alleging that Martin restrained trade in violation of the Sherman Act, 15 U.S.C.A. § 1 et seq., with respect to the business of furnishing linen supplies in the state of Texas. In June, 1969, after negotiation, a consent decree was entered as final judgment in the suit. In December, 1971, the United States filed the separate civil and criminal contempt petitions under review alleging violations of Section V(A)(1) of the consent decree. That Section provides Each corporate defendant is enjoined and restrained from, directly or indirectly : (A) threatening, coercing, inducing or attempting to induce: (1) Any linen rental supplier to refrain while in business, from furnishing linen supplies to any customer .... The activities which the Government allege violated the consent decree revolve around Martin’s attempts to exact reciprocal agreements from other linen suppliers not to compete for Martin’s customers, backed up by warnings of economic reprisals. After full pre-trial discovery, Martin filed a petition in the original antitrust proceeding for construction of the above Section. The District Court determined that the allegations by the Government centered on Martin’s activities aimed at recoupment of its own former customers and retaliations against competitors who solicited its customers. The Court concluded that Section V (A)(1) of the consent decree does not prevent Martin from threatening competitors with economic reprisals to persuade them to refrain from soliciting Martin’s customers. Subsequent to the entry of the construction order and based thereon, the District Court dismissed the criminal and civil contempt petitions against Martin. The Construction Order Martin contends that the construction order interpreting a provision of the antitrust consent decree was a final judgment in a civil action" }, { "docid": "16786114", "title": "", "text": "of- the cross-libel should be adjudicated in advance, it is nevertheless true that when a decree was rendered on the original libel, the error, if- any, committed in dismissing the cross-libel, could be rectified. That this course might result in delay, and perhaps sometimes in hardship, if- it should turn out that' jurisdiction could be exercised on the cross-libel, is not a sufficient reason for entertaining an appeal, if the decrpe did not,so dispose of the case as to enable this court to take jurisdiction. Generally speaking, the .same principles apply to cross-libels as to cross-bills, and this case affords no ground of exception therefrom. In admiralty, if tbe respondent desires to obtain entire damages'against the libellant, or damages in excess of those planned by libellant, a cross-libel is necessary, although matters of recoupment or counterclaim might be asserted in the answer. The Sapphire, 18 Wall. 51; The Dove, 91 U. S. 381. In The Dove a final decree was entered in favor of the libel-lants in thp original suit, and á decree rendered at the same time dismissing the cross-libel. No appeal was taken from the decree of dismissal, but the case was carried to the Circuit Court from the District Court by appeal from the decree on the libel, which was affirmed, and the cause brought to this court. The principal question involved on the appeal to this court was whether the submission to the dismissal of the cross-libel in the.District Court by the parties who had filed it, prevented thein from making the same defence to the original libel that they might have made if no cross-libel had been filed, and it was held that while the parties were bound by the decree of the District Court dismissing the cross-libel, the issues of law and fact involved' in the original suit were not thereby disposed of.- In the course of some general observátions, Mr. Justice Clifford, delivering the opinion, after remarking that causes of that kind might be heard separately, said: “Usually such suits are heard together, and are disposed of by one decree or by separate" }, { "docid": "23575775", "title": "", "text": "attorney for the defendant received such notice; but the attorney for the plaintiff testified that the notice was not received by him either through the mail or otherwise. However, it is provided in Rule 77(d), 28 U.S.C.A., that mailing of such notice by the clerk “is sufficient notice for all purposes for which notice of the entry of an order is required by these rules”. And further: “Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 73(a).” The latter rule provides that “the time within which an appeal may be taken shall be 30 days from the entry of the judgment appealed from * * * except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment the district court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed.” Such a motion for a 30-day extension was made by plaintiff, and denied by the district judge on the ground that there had been “no showing of excusable negligence based on failure of plaintiff learning of judgment.” The denial of this motion is not before us for review; nor are we, for present purposes, concerned with whether plaintiff’s counsel actually received the notice of entry of judgment or not. On March 17, 1949, plaintiff filed a motion “that the Court approve the attached final Decree.” This proposed final decree, after the usual preliminary recitals, ordered, adjudged and decreed that “Claim 1 of U. S. Letters Patent No. 2,401,297 is invalid”; that “The complaint is dismissed” ; and that “Costs be awarded to the defendant.” After hearing on this motion, the court on March 21, 1949, denied the same, on the ground that final judgment in the case had already been duly entered on February 1, 1949, and that the time for taking an appeal had expired." }, { "docid": "23193331", "title": "", "text": "■ any decision or decree in th? proceedings upon the cross-bill is not a final decree in the suit, and, therefore, not the subject of an appeal to this court, under the 22d section of the judiciary act. The decree, whether maintaining or dismissing the bill, disposes of a proceeding simply incidental to the principal matter in litigation, and can only be reviewed on an appeal from the final decree disposing of the whole case. That appeal brings up all the proceedings for reexamination, when the party aggrieved by any determination in respect to the cross-bill has the opportunity to review it, as in the case of any other interlocutory proceeding in the cause. For these reasons, the appeal in this case must be dismissed, for want of jurisdiction, and the case remanded to the court below. Mr. Justice CATRON concurred in the judgment, but dissented from the reasoning. Mr. Justice CATRON. In this instance, the b 11 and cross-bill are but one suit, and ought regularly to have been heard at the same time; and if an appeal was prosecuted from the decree to this court, by any party who supposed himself to be aggrieved, the whole suit would neeessarily be brought up. Here the, cross-bill was heard and dismissed, pending the original suit of which it was part. The decree pronounced was partial; and as no appeal'lies from any but a final decree, and this decree not being final, the consequence is, that this court has no jurisdiction to examine the merits presented and insisted on in the argument. All that we can properly do is to dismiss the appeal, because it brought up nothing. Now, as to the matters discussed in the opinion just delivered, founded on a copy of the proceedings had below, and filed in this court, I can only say that I have no opinion in regard to them, never having even read the record further than to ascertain that this court had no jurisdiction in the supposed case presented to us. I therefore concur in the judgment that the case shall be dismissed," }, { "docid": "23105686", "title": "", "text": "demands no such declaration of future rights, nor does it suggest how it could be done, or any sufficient reason why the court should pass upon the rights of persons not in esse. The bill charges no fault to the devisees except alienage, and before any of the contingencies happen the party entitled to take may be a citizen and capable of taking and holding the estate. In fact, one of the children of defendant was born in Rhode Island, and therefore is as capable of talcing as Cross. The decree of the court was final and complete as to the ease made by the complainant’s bill. If the decree had been against Mrs. De Valle, and she had been held incapable of taking, then the heirs might well say, that in such a case the estate should be conveyed to them, and not to Cross, and have their cross-bill for that purpose. But the decree being in favor of Mrs. De Valle, and the bill dismissed, the cross-bill must have the same fate with the original. A cross-bill “ is a mere auxiliary suit, and a dependency of the original.” “ It may be brought by a defendant against the plaintiff in the same suit, or against other defendants, or against both, but it must be touching the matters in question in the bill; as where a discovery is necessary, or as where the original bill is brought for a specific performance of a contract, which the defendant at the same time insists ought to be delivered up and cancelled; or where the matter of defence arises after the cause is at issue, where in cases at law the defence is by plea puis darrein continuance.” The bill filed by the heirs is for an entirely different purpose from that of Cross. It called upon the court to decree on the future rights of their co-defendants and others not in esse, and decree the limitations on the life-estate to be void as tending to a perpetuity. This would be introducing an entirely new controversy, not at all necessary to" }, { "docid": "22160790", "title": "", "text": "into the case by cross-complaint; that the company was improperly joined under state law and such joinder could not give the fed eral court jurisdiction; that the cross-action and the removal proceeding were collusively filed to deprive the state court of jurisdiction; that no separable controversy was presented, as the cause of action set up by the cross-complaint could not proceed to trial separately from the main action, but was ancillary thereto, judgment against Combs & Glade being a prerequisite to any judgment against the company. The prayer was “ that this entire cause be remanded to the said State Court of the State of Texas, and in the alternative that the suit of this plaintiff against the defendants Combs and Glade and the City of Waco be remanded to said court, and also in the alternative that the suit as against the United States Fidelity and Guaranty Company by the City of Waco, as evidenced by the cross complaint of the City of Waco, be dismissed and the balance of this action be remanded to the said State Court.” The District Court entered a single decree embodying three separate orders. First, being- of the opinion that the record presented a separable controversy between the City and the Fidelity Company, it overruled the motion to remand. Secondly, reciting that the motion to dismiss the cross-complaint had come on to be heard, it found that as to the plaintiff’s cause of action the Fidelity Company was an unnecessary and improper party, and-granted the motion. Thirdly, since, upon that dismissal, there was no diversity of citizenship of the remaining parties, the court held it lacked jurisdiction, and remanded the cause to the state court. The City appealed, not from the order of remand, but from that dismissing its action against the Fidelity Company, alleging this was contrary to the law of Texas. The Circuit Court of Appeals dismissed the appeal, holding that, as no appeal lies from an order of remand, the cause was irrevocably out of the District Court, the action of that court in dismissing the city’s cross-action was moot," }, { "docid": "22943944", "title": "", "text": "the time that the temporary restraining order was in effect. Upon stipulation, the restraining order was modified so as to provide for deposit of license fees with a trustee pending the termination of the litigation. On hearing, the District Court entered its final decree as follows: “1. That the plaintiffs are not entitled to a permanent injunction against the defendants; “2. That the relief prayed for in plaintiffs’ bill of complaint should be and is hereby in all respects denied, and plaintiffs’ bill of complaint is hereby dismissed on its merits; “3. That the temporary restraining order heretofore granted to plaintiffs by this court against the defendants, be and the same hereby is dissolved; “4. That the issue raised by the defendants’ counterclaim, not having been urged nor presented by the parties, and the court being in doubt as to the right of the d'e-fendants to maintain such counterclaim, it is ordered that the same be and it hereby is dismissed without prejudice to the right of the defendants, or either of them, to maintain an independent action or suit thereon, if they, or either of them, shall be so advised; “5. That defendants recover their costs and disbursements herein, to be taxed as provided by law and inserted herein in the sum of.Dollars.” On motion for rehearing, paragraph 4 of the decree was modified by striking out the following words relating to the defendants’ counterclaim, to wit, “not having been urged nor presented by the parties,” and rehearing was denied. The Public Service Commission brings this appeal seeking to review paragraph 4 of the decree, as amended, dismissing the counterclaim. The appellate jurisdiction of this Court on direct appeal from a final decree by a District Court composed of three judges under § 266 of the Judicial Code is strictly limited as follows: “a direct appeal to the Supreme Court may be taken from a final decree granting or denying a permanent injunction in such suit.” The Public Service Commission as the successful party below has no standing to appeal from the decree denying the injunction. New York Telephone" }, { "docid": "11038710", "title": "", "text": "EDGERTON, Associate Justice. This case began as a suit for a declaratory judgment. The defendants, filed three compulsory counterclaims, which arose out of the same transaction as the plaintiffs’ claims, and also several permissive counterclaims. Defendants moved to dismiss the original complaint; plaintiffs moved to dismiss the compulsory counterclaims; and there were several motions to strike various parts of other pleadings. The trial court acted upon ten of these motions in a single order the pertinent parts of which are as follows: “Upon consideration of the divers motions filed herein by the respective parties hereto and upon oral argument thereof duly had, it is * * * Ordered, that: * * * Plaintiffs’ separate motions to dismiss the separate cross-complaints [i.e., the compulsory counterclaims ] * * *, sustained; * * * Motion to dis miss original complaint filed by the plaintiffs, * * * overruled * * Defendants noted an appeal from the quoted parts of the order and filed the record in this court. Plaintiffs now move to dismiss the appeal on the ground that the order is not final. Plainly the ■overruling of the motion to dismiss the original complaint was not a final order. In support of their contention that the sustaining of the motion to dismiss the counterclaims was likewise not a final order, plaintiffs rely upon our statement in Southland Industries v. Federal Communications Commission that “an appeal cannot be taken * * * from a judgment or decree not final as to all the parties, the whole subject-matter and all the causes of action involved.” But that case was decided before the Federal Rules took effect, and what we said there must be modified so far as it is inconsistent with those Rules. Before the Rules were adopted the dismissal of any counterclaim, leaving the plaintiff’s claim pending, did not have the effect of a final judgment. But the Rules “indicate a ‘definite policy’ * * * to permit the entry of separate judgments where the claims are ‘entirely distinct’ * * * Such a separate judgment will frequently be a final judgment" }, { "docid": "22946043", "title": "", "text": "‘ brought ’ until it is, in some way, presented to the court which made the decree appealed from, thereby putting an end to its jurisdiction over the cause, and making it its duty to send it to the appellate court.” There the appeal was allowed by Mr. Justice Miller on the last day on which an appeal could be taken (Revised Statutes, § 1008), but was not presented to the court below nor filed with the clerk until five days after the prescribed time had expired. It was held that the appeal must be dismissed, and Mr. Justice Bradley added: “The attempt made, in this case, to anticipate the actual time of presenting and filing the appeal, by entering an order nunc pro tunc, does not help the case. When the time for taking an appeal has expired, it cannot be arrested or called back by a simple order of court. If it could be, the law which limits the time within which an appeal can be taken would be a dead letter.” In Farrar v. Churchill, 135 U. S. 609, it was held that a cross appeal in equity, like other appeals, must be entered within the time limited, calculating from the date of the decree, and because in that case petition, order and bond were not filed in the Circuit Court until after the lapse of two years from the entry of the decree the cross appeal was dismissed. It was ruled also that the failure to file an assignment of errors, although required by the act of .Congress, and the rule of court, was not jurisdictional and could be waived. Revised Statutes, § 997; Rule 11; School District v. Hall, 106 U. S. 428. In Conboy v. Bank, 203 U. S. 141, it was held that the time within which an appeal may be taken under § 25b of the bankruptcy act and general order in bankruptcy XXXVI runs from. the entry of the original judgment or decree, and when it has expired is not revived by a petition for a rehearing, and that where the" }, { "docid": "11068352", "title": "", "text": "The decree further adjudged that the defendants take nothing by •their cross-complaint; that it be dismissed; that they were not entitled to any order restraining the plaintiffs from the enjoyment of the premises, prior to or pending any appeal that might be taken; and that the plaintiffs recover from the defendants their costs. On an appeal by the defendants to the Supreme Court of the territory from .that judgment, it was affirmed. The defendants have brought the case here by appeal, and briefs have been filed by both parties, on the merits. But we are of opinion that the decree was not a final one, and is not appealable. The judgment of the Supreme Court simply affirmed the judgment of the District Court.- As regards the relief sought by the plaintiffs, the latter judgment merely enjoined the defendants, and ordered an accounting by them before a referee concerning the rock and ore taken by. them from the mine. The bill prays for such injunction, and for such accounting, and for the payment to the plaintiffs'of what shall be found due to them upon such accounting. In this respect, the decree is of the same character with .that considered by us in Keystone Manganese & Iron Co. v. Martin, decided November 11, 1889, ante, 91, where the decree was held not. to be final or appealable. Nor does it make any difference that the decree in the present case dismisses -the cross-complaint of the defendants. The filing of the cross-complaint was not the institution of a separate suit,' but grew out of the original complaint. There was but a single decree, and that was entitled in the original suit. The right of the defendants to appeal from the decree, so far as' their cross-complaint is concerned, will be preserved; and time will run against them, as to all parts of the present judgment of the District Court, only from the time of the entry of a final decree after a hearing under the accounting which is to 'be had. Ayers v. Chicago, 101 U. S. 184, 187. Appeal dismissed." }, { "docid": "5362571", "title": "", "text": "MAJOR, Chief Judge. Milwaukee Towne Corporation, engaged in the operation of a motion picture theatre in Milwaukee, Wisconsin, instituted its suit under the anti-trust laws, Title 15 U.S.C.A. § 1 et seq., against certain defendants for damages and injunctive relief. A judgment was obtained and a decree entered containing numerous injunctive provisions. Upon appeal this court in the main affirmed the judgment and, with certain modifications, approved the decree. Milwaukee Towne Corp. v. Loew’s Inc., 7 Cir., 190 F.2d 561. Reference is made to our opinion for a statement of the issues and the names of the defendants involved. The instant appeal is by those who were defendants in that case, who filed in the District Court what is designated as a cross-complaint, in which Milwaukee Towne Corporation (sometimes called Towne) was designated as cross-defendant. Thus, the parties are designated as cross-plaintiffs-appellants and cross-defendant-appellee. In the briefs the former have been referred to as defendants, the latter as plaintiff, as they were in the original suit, and we shall characterize them in the same manner. The original decree entered by the District Court contained Section V(b), which provides: “* * * defendants or any of them * * * are perpetually enjoined from: * * * (b) preventing plaintiff, in the operation of the Towne Theatre in the City of Milwaukee, Wisconsin, from contracting for or from securing in the course of interstate trade and commerce, at fair and reasonable film rental, any motion picture film or films suitable for first-run exhibition in the City of Milwaukee, Wisconsin, by refusing to offer such picture to plaintiff at such fair and reasonable film rental. A refusal on the part of plaintiff to accept such offer or to play a picture on the contracted play date shall not prevent defendants from contracting with any other exhibitor for a first run showing of the same. (Italics ours.)” On appeal, this court eliminated the italicized portion of the section; otherwise, it was approved. Defendants instituted the instant proceeding for the purpose of obtaining an interpretation or construction of the provision as approved. The complaint" }, { "docid": "3858576", "title": "", "text": "original bill would not, in such cases, operate to dismiss the cross-bill. We find nothing in the principle so announced opposed to the conception of the bill in question as a mere cross-bill, because we think the additional matter introduced by the cross-bill cannot properly be said to be matter collateral to that presented by the original bills, or that the affirmative relief sought is (to quote the language of appellants’ counsel) “so far severable from and independent of the suit brought by the original bills that the cross-cause is not to be considered as being the same 'cause as that in which the stay was to operate.” The character of cross-bill is not taken away by the mere statement therein of facts not contained in the original bill, so long as such additional facts are germane to the matters embraced in the original suit. The rule is that: “If the plaintiff in the original bill does not fully state all the facts and circumstances connected with • the subject-matter in controversy, but omits facts which, if alleged, would show a right in a defendant, entitling him to relief against either the plaintiff or a codefendant, such omitted facts, however extended and voluminous, may be stated by the defendant in a cross-bill, and the appropriate relief demanded.” 1 Bates, Fed. E.q. Procedure, § 376. It is true that the dismissal of a cross-bill is a denial of the affirmative relief asked by appellants, and if the present appeal is dismissed, and, on appeal taken after final decree on the merits, the appellate court should conclude that the cross-bill was improperly dismissed, it might be necessary to send the case back for further proofs and hearing. But such evil is necessarily incident to the dismissal of a cross-bill, in advance of final hearing on the merits of the original suit. We are constrained to hold that the bill in question is in effect a pure cross-hill, that the stay asked for was a stay in a suit in which it would operate, and that its dismissal was therefore not the subject" }, { "docid": "13171928", "title": "", "text": "of enforcing the original decree, and in no sense was it a final decree upon which an appeal could be sustained. It was, in effect, the same as ordering an execution on a judgment of law which had been affirmed on error and remanded for execution to the Circuit Court. In Hayes v. Fischer, 102 U. S. 121, 122, an injunction was granted.- Complaint was made against Hayes for a violation thereof,- and. proceedings were instituted against him for contempt, which resulted in an order by the court that he pay a certain fine, and stand committed until'the order was obeyed. To reverse this order1, Hayes sued out a writ of error- to this court, which the defendant, in error moved to dismiss, on the ground that such proceedings in the Circuit Court could not be reexamined by this court. The court, speaking by Mr. Chief Justice Waite, said: “ If the order complained of is to be treated as part of what was done in the original suit, it cannot be brought here for review by writ of error. Errors in equity suits can only be corrected in this court on appeal, and that after a final decree- This order, if part of the pró-ceedings in the suit, was interlocutory only. If the proceeding below, being for contempt, was independent of and separate from the original suit, it cannot' be reexamined here either by writ of error or,appeal. This was decided more than fifty years ago in Ex parte Kearney, 7 Wheat. 38, and the rule then established was followed as late as New Orleans v. Steamship Company, 20 Wall. 387.” The court held that it had no jurisdiction, and dismissed the writ of error; No decision of this court has gone so far as to hold that the construction which the highest court of a State places upon its own judgment, and under which construction it holds that a party thereto has not been guilty of contempt, presents a Federal question, such as would confer jurisdiction upon this court to reexamine or reverse such a judgment. Again, if" }, { "docid": "22059384", "title": "", "text": "final decree in the same suit on both the original and the cross claims.” 268 U. S. 709. It is clear that in this suit the court in a single decree may finally determine the merits of the cause of action alleged in the complaint and the counterclaim set up in the answer. The order dismissing the counterclaim is interlocutory. Winters v. Ethell, 132 U. S. 207, 210. Ex parte Railroad Co., 95 U. S. 221, 225. Ayres v. Carver, 17 How. 591, 595. The general rule is that review of interlocutory orders must await appeal from the final decree. But in proceedings for injunctions and receivers exceptions have been made by § 129, Judicial Code: “ Where, upon a hearing in a district court, or by a judge thereof in vacation, an injunction is granted, continued, modified, .refused, or dissolved by an interlocutory order or decree, or an application to dissolve or modify an injunction is refused, or an interlocutory order or decree is made appointing a receiver, or refusing an order to wind up a pending receivership or to take the appropriate steps to accomplish the purposes thereof, such as directing a sale or other disposal of property held thereunder, an appeal may be taken from such interlocutory order or decree to the circuit court of appeals. . . . The appeal . . . must be applied for within thirty days from the entry of such order or decree, and shall take precedence in the appellate court; and the proceedings in other respects in the district court shall not be stayed during the pendency of such appeal unless otherwise ordered by the court, or the appellate court, or a judge thereof. . . .” 28 U. S. C., § 227. The reasons suggested by plaintiffs in support of the contention that the order is not appealable are that there was no hearing upon any application for an injunction and that the dismissal of the counterclaim was not the refusal of an injunction. But by their motion to dismiss, plaintiffs themselves brought on for hearing the very question" }, { "docid": "22558257", "title": "", "text": "had directed the entry of a final decree, and its formulation and that of the proposed findings of fact and conclusions of law was a matter of considerable importance to all parties in the litigation, including, of course, the defendant universal, with whom we are presently concerned. Cooke as counsel for Universal prepared its proposed findings and decree; appeared at hearings before the Statutory Court in support thereof and in opposition to those proposed by the government and some of the so-called “Big Five” defendants. Following the settlement of the findings of fact, conclusions of law and the entry of the decree, his further activities included general representation of. Universal in connection with its appeal to the Supreme Court; obtaining a stay of some of the provisions of the decree; preparation of brief and reply brief and argument before the Supreme Court of Universal’s appeal. In May 1948, the Supreme Court rendered its opinion affirming in part and reversing in part the decree of the Statutory Court. Cooke then worked on a proposed petition for rehearing and on the order of mandate. Cooke’s representation of Universal ended, according to the latter, on July 7, 1948; according to him, on or about February 14, 1951. Subsequently, on October 17, 1951, Cooke brought suit against Universal for a claimed balance due him on account of services rendered in the Paramount litigation. In that suit, which is still pending, he is represented by Mr. Kahan. The controversy as to dates is important here only to the extent that if we accept the date fixed by Cooke it narrows the gap between his former representation of Universal and his present representation of plaintiff against his former client Universal to less than a year. This gap is further narrowed when we consider that some of the complaints, admittedly prepared by Cooke; were in the process of preparation over an extended period of time. The cases out of which this motion grew were commenced between January 23, 1952 and May 15, 1952. The motion presently relates to .but one pending case. The complaint alleges that the" }, { "docid": "16786115", "title": "", "text": "the same time dismissing the cross-libel. No appeal was taken from the decree of dismissal, but the case was carried to the Circuit Court from the District Court by appeal from the decree on the libel, which was affirmed, and the cause brought to this court. The principal question involved on the appeal to this court was whether the submission to the dismissal of the cross-libel in the.District Court by the parties who had filed it, prevented thein from making the same defence to the original libel that they might have made if no cross-libel had been filed, and it was held that while the parties were bound by the decree of the District Court dismissing the cross-libel, the issues of law and fact involved' in the original suit were not thereby disposed of.- In the course of some general observátions, Mr. Justice Clifford, delivering the opinion, after remarking that causes of that kind might be heard separately, said: “Usually such suits are heard together, and are disposed of by one decree or by separate decrees entered at the sametime; but a decision in the cross-suit adverse to the libellant, even if'the decree is entered before the original suit is heard, will not • impair the right of the respondent in the original suit to avail himself of every legal and just defence to the charge there made which is regularly set up in the answer, for the plain reason that the adverse decree in the cross-suit does not dispose of the answer in the original;suit. . . . Whether the controversy pending is a suit, in equity or in admiralty, a cross-bill or libel is a bill or libel brought by a defendant in the shit against the plaintiff in the same suit, or' against other defendants in the original suit or against both, touching the matters in question in the original bill or libél. It is brought in the admiralty to obtain full and complete relief to all parties as to the matters charged in the original libel; and in equity the cross-bill is sometimes used to obtain" }, { "docid": "11068351", "title": "", "text": "might be decreed specifically to execute and perform their contract to convey the property to the defendants, on receiving from them the remainder of the purchase money which might be equitably due therefor, and for an injunction, to be made perpetual on the hearing, restraining the plaintiffs from interfering with the possession by the defendants of the mining claim and the works and openings leading thereto. This cross-complaint was answered by the. plaintiffs, and the case was tried by the court on evidence, oral or documentary, adduced by the respective parties. It made certain findings of fact and conclusions of law, and entered a decree adjudging that the defendants be enjoined perpetually from entering upon or interfering with the possession of the mining claim mentioned in the complaint, and that the plaintiffs were entitled to an accounting with- the defendants of and concerning all rock and ore taken from the mine by the defendants during the term mentioned, and not already accounted for, and referring it to a referee to take and state such account. The decree further adjudged that the defendants take nothing by •their cross-complaint; that it be dismissed; that they were not entitled to any order restraining the plaintiffs from the enjoyment of the premises, prior to or pending any appeal that might be taken; and that the plaintiffs recover from the defendants their costs. On an appeal by the defendants to the Supreme Court of the territory from .that judgment, it was affirmed. The defendants have brought the case here by appeal, and briefs have been filed by both parties, on the merits. But we are of opinion that the decree was not a final one, and is not appealable. The judgment of the Supreme Court simply affirmed the judgment of the District Court.- As regards the relief sought by the plaintiffs, the latter judgment merely enjoined the defendants, and ordered an accounting by them before a referee concerning the rock and ore taken by. them from the mine. The bill prays for such injunction, and for such accounting, and for the payment to the plaintiffs'of" } ]

[ { "docid": "15258733", "title": "", "text": "be considered by a court.” Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F.Supp. 71, 74 (S.D.N.Y.1978). The Court already has considered this factor in determining that, everything else aside, New York would provide a slightly more convenient forum than Pittsburgh for the parties and witnesses. However, as discussed above, the Court has determined that the “interests of justice” would be sufficiently advanced by the litigation of this case before Judge Weber to outweigh any modest inconvenience resulting from the transfer of the case to Pittsburgh. The forum selection clause thus should not prevent such a transfer. Plaintiff also opposes a transfer on the grounds that the Western District of Pennsylvania lacks venue to hear the instant case. Under the provisions governing federal securities fraud suits, venue is appropriate in any district where “an act or transaction constituting the violation occurred.” 15 U.S.C. § 78aa. [I]n a multi-defendant securities case in which a common scheme of acts or transactions to violate the securities law is alleged, the occurrence in the district of ‘any act or transaction’ by any defendant in furtherance of the scheme is sufficient to establish venue as to any other defendant who knowingly participated in the scheme—even if such defendant did not perform any independent venue-establishing act or transaction in the district. First Federal Savings & Loan Association v. Oppenheim, Appel, Dixon & Co., 634 F.Supp. 1341, 1350 (S.D.N.Y.1986); accord Wyndham Associates v. Bintliff, 398 F.2d 614, 620 (2d Cir.), cert. denied, 393 U.S. 977, 89 S.Ct. 444, 21 L.Ed.2d 438 (1968). In the instant case, plaintiff’s complaint alleges that defendants committed securities fraud by failing to disclose the status of prior litigation, brought against all defendants except Chase. Since this prior litigation, as well as defendants’ related courtroom and public relations strategies, was centered in Pittsburgh, the Pittsburgh court has venue over plaintiff’s instant action. In addition, plaintiff alleges that defendants’ policy of nondisclosure was practiced in proxy statements, which defendants regularly mailed to holders of debentures living in the Western District of Pennsylvania. The mailing of these allegedly incomplete and misleading statements, standing alone," } ]

[ { "docid": "15331549", "title": "", "text": "Motion to Transfer Defendants have alternatively requested that this case be transferred to Louisiana pursuant to 28 U.S.C. § 1404(a) or § 1406(a). However, as a prerequisite to a transfer of venue under section 1406(a), venue in the transferor district must be improper. Pennwalt Corp. v. Horton Co., 582 F.Supp. 438, 441 (E.D.Pa.1984); Buhl v. Jeffes, 435 F.Supp. 1149, 1151 (M.D.Pa.1977). Because venue is proper in this district, this provision is inapplicable. For a case to be transferred under section 1404(a), the moving party must show: “(1) that venue is proper in the transferor district; (2) ... that the transferee court is in a district ‘where it might have been brought’ []; and (3) that the transfer is ‘for the convenience of the parties and witnesses in the interest of justice.” ’ Ratner v. Hecht, 621 F.Supp. 378, 381 (N.D.Ill.1985) (quoting Hotel Constructors, Inc. v. Seagrave Corp., 543 F.Supp. 1048, 1050 (N.D.Ill.1982)). In the instant case, the first requirement under section 1404(a) is satisfied because it has already been established that venue is proper in this district. Defendants’ motion, however, fails to meet the second prerequisite; Heller could not have brought this action in Louisiana because not all of the defendants reside there. In addition, defendants have not satisfied the third requirement for transfer. In order to satisfy that requirement, the movant must establish “a clear balance of inconvenience”; transfer will be refused where it would merely shift the inconvenience from one party to the other. Wallen v. Loving, 609 F.Supp. 159, 161 (N.D.Ill.1985). Furthermore, due to the forum selection provision in their contract, defendants in the case at bar must carry an even greater burden. Having already agreed to bear the inconvenience of litigating in Illinois, defendants cannot prevail on a transfer motion unless they demonstrate that Illinois would be a “seriously inconvenient” forum, such that it would deprive them of their day in court. See Friedman v. World Transp., Inc., 636 F.Supp. 685, 690 n. 5 (N.D.Ill.1986). Defendants assert that litigation in Illinois would place an extreme financial burden on them. Notwithstanding this claim, defendants have failed to" }, { "docid": "7758202", "title": "", "text": "Certain individual defendants residing in the Eastern District of New York who were served with process there moved to vacate service and to dismiss on the ground of improper venue, relying upon Section 1391(b) of Title 28 U.S.C.A.: “A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought in the judicial district where all defendants reside, except as otherwise provided by law.” A venue provision is also contained in the Clayton Act, which authorizes suit “in any district court of the United States in the district in which the defendant resides or is found or has an agent, * 15 U.S.C.A. § 15. Section 1392(a) of Title 28 provides: “Any civil action, not of a local nature, against defendants residing in different districts in the same State may be brought in any of such districts.” Since an anti-trust suit is not of a “local nature” venue as to the defendants is proper in the Southern District of New York. The special venue provisions contained in the anti-trust laws were intended as an enlargement of venue and to broaden the choice of a forum available to plaintiffs in anti-trust actions. United States v. Scophony Corporation of America, 333 U.S. 795, 804, 68 S.Ct. 855, 92 L.Ed 1091; Abrams v. Bendix Home Appliances, Inc., D.C., 96 F.Supp. 3. The general venue provisions now contained in New Title 28, Sections 1391 et seq., effective September 1, 1948, may be considered supplementary to, and not in limitation of, the venue provisions contained in the anti-trust laws and other special statutes. Thus, for example, the forum non conveniens provision, Section 1404(a) of Title 28, has been held applicable to anti-trust suits and the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. United States v. National City Lines, Inc., 337 U.S. 78, 69 S.Ct. 955, 93 L.Ed. 1226; Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed. 1207. The motions are denied. Motions by Granite Cutters International Association to' Dismiss the Complaint for Improper Venue. Service of process was made upon the International Union by" }, { "docid": "20042968", "title": "", "text": "reasons set forth below, the Court agrees, and will sever and transfer the claims against BOC. The federal venue statute permits the Court, in the interest of justice, to transfer the action to any other district where it could have been brought. 28 U.S.C. § 1406(a). The Court retains the power to transfer an action even if it lacks jurisdiction over the defendants. See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962) (“The language of § 1406(a) is amply broad enough to authorize the transfer of cases, however wrong the plaintiff may have been in filing his case as to venue, whether the court in which it was filed had personal jurisdiction over the defendants or not.”); Cameron v. Thornburgh, 983 F.2d 253, 257 (D.C.Cir.1993) (“[W]e may transfer the case [pursuant to § 1406(a) ] even though it is likely that we do not have personal jurisdiction over [defendants].”). Transfers under § 1406(a) are appropriate “when procedural obstacles ‘impede an expeditious and orderly adjudication on the merits.’ ” Sinclair v. Kleindienst, 711 F.2d 291, 293-94 (D.C.Cir.1983) (quoting Goldlawr, Inc., 369 U.S. at 466-67, 82 S.Ct. 913). These obstacles include “lack of personal jurisdiction, improper venue, and statute of limitation bars.” Id. at 294. Here, several reasons militate in favor of transfer to the United States District Court for the Southern District of New York. First, because BOC operates a branch in New York, it both “resides” and “has an agent” in the forum, and thus any suit against it may be properly venued under the ATA. See Crenshaw v. Antokol, 287 F.Supp.2d 37, 42 (D.D.C.2003) (“To transfer an action, the court must ensure as a preliminary matter that venue is proper ... in the transferee forum.”). Second, under defendant’s own interpretation of the ATA’s service provision — which the Court adopts — because venue would lie in the Southern District of New York, plaintiffs could invoke the Act’s provision of nationwide service of process to obtain personal jurisdiction over BOC. Moreover, even if plaintiffs were somehow unable to utilize the nationwide service provision" }, { "docid": "8079101", "title": "", "text": "conclude, for purposes of the defendants’ motion for change of venue, that a substantial number of the acts giving rise to the plaintiffs’ claims against ULC and Stromer occurred in Colorado. I conclude, therefore, that the claims against ULC and Stromer arose in Colorado and venue is proper in this district. 3. Transfer of Venue under § 1404(a). Defendants next assert that even if venue is proper in Colorado, the court should transfer venue to the United States District Court for the Northern District of California under 28 U.S.C. § 1404(a). That section provides: “For the convenience of parties and witnesses, and in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” Because all defendants reside in the Northern District of California, venue would have been proper in that district. However, the inquiry does not end there. “The purpose of 28 U.S.C. § 1404(a) is to prevent waste of time and money, and to protect parties, witnesses, and litigants from unnecessary inconvenience and expense.” Resources Inv. Corp. v. Hughes Tool Co., 561 F.Supp. 1236, 1238 (D.Colo.1983). Transfer of an action is within the district court’s discretion. In re Ralston Purina Co., 726 F.2d 1002 (4th Cir.1984). Defendants seek a transfer on these grounds: (1) the majority of potential witnesses whose testimony will be essential to the defense reside in the Northern District of California; and (2) the majority of documents existing as sources of proof are located in the Northern District of California. (Defendants’ brief, at 2.) Nevertheless, a plaintiff’s choice of forum is a factor deserving substantial weight in determining the question of transfer under § 1404(a). Norwood v. Kirkpatrick, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789 (1955). Indeed, a plaintiff’s choice is entitled to great weight and will not be lightly disturbed, especially where the plaintiff is a resident of the judicial district where the suit is filed. See Houk v. Kimberly-Clark Corp., 613 F.Supp. 923 (W.D.Mo.1985). Plaintiffs reside in Colorado and this state is their forum of choice. Defendants have" }, { "docid": "16685832", "title": "", "text": "the plaintiffs home forum. Amorose v. C.H. Robinson Worldwide, Inc., 521 F.Supp.2d 731, 735 (N.D.Ill.2007). However, this weight is greatly discounted in class actions. Blumenthal v. Management Assistance, Inc., 480 F.Supp. 470, 472 (N.D.Ill.1979) (“[P]laintiffs choice of a forum becomes substantially less important when he sues representatively on behalf of a class ... ”). Because the named Plaintiffs here purport to represent a nationwide class, if class certification occurs, the named Plaintiffs choice of venue will not be the home venue for all plaintiffs and any venue selected is bound to be inconvenient to some plaintiffs. Furthermore, the plaintiffs choice of forum is given less deference “when another forum has a stronger relationship to the dispute.” Amorose, 521 F.Supp.2d at 735. In this case, the only relations to the Northern District of Illinois are that the named Plaintiffs reside in Illinois and the Applebee’s WeightWatchers menu items are available in Illinois. On the other hand, Applebee’s is headquartered in Kansas. Because Applebee’s actions will be the subject of this case and their WeightWatchers menu items are available across the country, the District of Kansas has a stronger connection to the dispute than does the Northern District of Illinois. Thus, Plaintiffs’ choice of forum is given less deference in the instant case. b. Situs of the material events. The material events in this case concern the conduct of Defendants. The conduct which is the focus of this suit is decisions by Defendants to market and sell Apple-bee’s WeightWatchers Menu items with allegedly misrepresented nutritional information, not the purchases by Plaintiffs. The relevant decisions would have been made by employees of the Defendants at a headquarters office in Kansas, New York, or California. Defendants argue that Applebee’s is the main Defendant and the majority of decisions regarding the WeightWatchers menu items would have been made at Applebee’s headquarters in Kansas. This factor weighs in favor of transfer. c. Relative ease of access to sources of proof. In this case, documents and decision making employees of the Defendants are located in Kansas, New York, and California. However, Defendants claim that the focus of" }, { "docid": "16672727", "title": "", "text": "He points out that in Dubin v. U.S., 380 F.2d 813, 815 (5th Cir.1967), the old Fifth Circuit stated generally that “§ 1406 operates in cases where the first forum chosen is improper in the sense that litigation may not proceed there” due to some defect in venue or personal jurisdiction. Where the defendant has waived his objections to venue, the argument goes, there is no longer an obstacle to adjudication on the merits, and therefore § 1406(a) may not be invoked. This argument, of course, begs the question. Only if the plaintiff has effectively waived her right to object to venue can it be said that there is no longer an obstacle to adjudication on the merits. Moreover, the argument overlooks the fact that Du-bin and cases following it, see, e.g., Ellis v. Great Southwestern Corp., 646 F.2d 1099 (5th Cir.1981), and Roofing & Sheet Metal Services, Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982 (11th Cir.1982), are primarily concerned with ensuring that the proper state’s choice of law rules apply when a transfer is granted. Where the plaintiff brings suit in an improper forum and the defendant raises a timely objection resulting in transfer under § 1406(a) or § 1404(a), the transferee court’s choice of law rules must be applied in order to prevent a plaintiff from suing in a forum lacking personal jurisdiction or venue “for the purpose of capturing the law of that jurisdiction for transportation to the jurisdiction in which service can be obtained.” La Quinta, 689 F.2d at 992, quoting Ellis, 646 F.2d at 1108. Since the original forum was not a proper one to begin with, no sound reason exists to apply that forum’s choice of law rules. Conversely, where a diligent plaintiff in good faith files suit in the district where the individual defendant appears to reside but actually does not, and objects to venue as soon as the defendant's true residence is revealed, again no sound policy compels application of the original forum’s choice of law rules. In these circumstances, the filing of the suit in the original forum" }, { "docid": "10514567", "title": "", "text": "(S.D.N.Y.1975). Many of the negotiations, the signing of the agreement of sale, and the closing of the stock purchase transaction took place in this district. During his negotiations, Boggs sent letters and made telephone calls to representatives of the Hughes estate from the Eastern District of Arkansas, and plaintiff’s economic loss was registered in that district. The investors agreed to participate in the stock purchase transaction and borrowed the funds to do so while in the Middle District of Florida. Of these three possible forums, the Eastern District of Pennsylvania was the site of the most significant contacts since the operative events which gave rise to plaintiff’s cause of action took place here. This is the district where the claim arose, and venue therefore is proper. Defendants’ motion to dismiss because venue is improper will be denied. III. MOTION FOR CHANGE OF VENUE All of the defendants except Boggs have moved to transfer this action to the United States District Court for the Middle District of Florida pursuant to 28 U.S.C. § 1404(a), which provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” Although the record is not entirely clear on the matter, it appears that all of the defendants resided in the Middle District of Florida at the time this action was filed. The defendants therefore were subject to service in that district and venue would have been proper under 28 U.S.C. § 1391(a). As a result, the action “might have been brought” in the Middle District of Florida. See generally Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960). Whether transfer is appropriate for the “convenience of parties and witnesses” and “in the interest of justice” is a question of balance. In deference to the “paramount consideration” of plaintiff’s choice of a proper forum, transfer may only be granted if the defendants establish that the balance of interests is strongly in their favor. Shutte v. Armco Steel Corp., 431 F.2d" }, { "docid": "18671317", "title": "", "text": "an inhabitant or wherever the defendant may be found”. In support of the first ground, plaintiffs point to the allegation that the defendants caused copies of the tender offer to be sent, presumably by interstate mail, to plaintiffs, almost all of whom reside in Rhode Island. Both plaintiffs and defendants agree upon the standard to be applied to test the adequacy of this action to support venue and cite many of the same cases. “In considering the extent and nature of the contact with a jurisdiction necessary to establish venue under section 27, this Court concluded in Puma v. Marriott, 294 F.Supp. 1116, 1120 (D.Del.1969) that section 27 ‘does not require that the violative act or acts form the core of the claim. All that is required is but one act within the forum district which represents more than an immaterial part of the allegedly illegal events.’ In Dauphin Corp. v. Redwall Corp., 201 F.Supp. 466, 469-470 (D.Del.1962) this Court ruled that acts committed in the jurisdiction which were ‘integral parts of’ or of ‘material importance to’ the commission of the violation of the ’34 Act were sufficient to establish venue in this jurisdiction.” Jacobs v. Tenney, 316 F.Supp. 151, 158 (D.Del.1970). Defendants acknowledge that as a general rule the use of interstate mail to distribute a proxy solicitation or, as here, a tender offer can constitute adequate ground for venue under § 27. Authority for this proposition was analyzed in Sarratt v. Walker, 405 F.Supp. 132, 134 (D.S.C.1975): “The Fifth Circuit concluded in 1961 that ‘any use of instrumentalities of the mails or other interstate facilities made within the forum district constituting an important step in the execution of the fraudulent, deceitful scheme or in its consummation is sufficient’ for venue to lie in that district. Hooper v. Mountain States Securities Corp., 282 F.2d 195, 204-05 (5th Cir. 1960), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961); cf. Mariash v. Morrill, 496 F.2d 1138 (2nd Cir. 1974). Other district courts considering this question have also reached the same conclusion and held that venue is proper" }, { "docid": "23488259", "title": "", "text": "for the majority’s theory. Many cases have held venue proper in situations where the defendant had never physically been in the forum district. Because the possibility of venue under such circumstances is broadly supportive of the majority’s conclusion, the cases warrant investigation. In Hooper v. Mountain States Securities Corp., supra note 10, we held that defendant’s telephone call, which plaintiff received in the forum district, followed by plaintiff’s transfer of funds from the same district, made venue proper. Similarly, in Hilgeman v. National Insurance Co. of America, supra note 13, we held that venue was proper in the forum district when the defendant sent a premium notice by mail to the district and plaintiff paid by a check drawn in the district. Decisions by other courts are similar. For example, venue has been held proper in the district where a fraudulent press release was transmitted, Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145 (C.A.10, 1967) (when followed by plaintiff’s sale of stock through a broker in the district), and the district where allegedly false proxy material was mailed to a shareholder, Mayer v. Development Co. of America, 396 F.Supp. 917 (D.Del.1975). Though these cases at first blush seem helpful to the majority’s position, closer examination shows that they do not support a construction of § 27 that reads act to mean effect. All the cases can be confined to the rule they purport to apply — namely, the transmission or reception of any interstate communication supports venue in the forum district. The majority’s view of today’s case falls outside the rule these cases have applied. The effect felt because of regulatory activities is entirely different from the reception of an interstate transmission. Another case finding venue proper when the defendant had never physically been in the forum district involved a failure to timely file a report required by federal law. Investors Funding Corp. of New York v. Jones, 161 U.S.App.D.C. 420, 495 F.2d 1000 (1974). The court, relying on analogous cases outside securities law, held that venue was properly laid in the district where the report was required to" }, { "docid": "990158", "title": "", "text": "of the Perkins School for the Blind, which was America’s first school for the blind. Helen Keller was taught there. Third, Théberge has an interest in obtaining convenient and effective relief. He is a resident of the state- and “courts regularly cede some deference to the plaintiffs choice of forum.” Id. The fourth factor— the judicial system’s interest in obtaining the most effective resolution of the controversy — is neutral. Finally, the Defendant argues that Plaintiffs attempt at forum shopping should direct the courts to find the fifth factor — the common interests of all sovereigns in promoting substantive social policies — in the Defendant’s favor. However, Plaintiff is a Massachusetts resident and in his home forum, so exercising jurisdiction in this instance would be fair, reasonable, and consistent with the requirements of Due Process under the United States Constitution. In sum, the Court concludes it has personal jurisdiction over Otter under both the long-arm statute and the Due Process clause. • B. IMPROPER VENUE The Defendant seeks to . disr miss or transfer this action to Colorado pursuant to Fed. R. Civ. P. 12(b)(3). .Venue is proper when a case is filed in a “judicial district in which a substantial part .of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391. The Court looks to the “entire sequence of events underlying the claim,” not just the “single triggering event.” Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 12 (1st Cir. 2009) (quoting Uffner v. La Reunion Francaise, S.A., 244 F.3d 38, 42 (1st Cir. 2001)). Although the website may have been created and operated outside of the district, the attempts to access the website in Massachusetts are part of the sequence of events underlying the claim. Therefore, venue is proper in this District. See Siegel v. Homestore, Inc., 255 F.Supp.2d 451, 456 (E.D. Pa. 2003) (finding venue proper when all defendant’s business was conducted entirely over the Internet). C. TRANSFER OF VENUE Alternatively, Defendant asks the Court, in its discretion, to transfer the case to the District of Colorado. “For the convenience" }, { "docid": "10668535", "title": "", "text": "it “represents more than an immaterial part of the allegedly illegal events.” Bath Industries, Inc. v. Blot, 427 F.2d 97, 114 (7th Cir. 1970) ; Thompson v. Battle, 54 F.R.D. 222, 226 (N.D.Ill.1971). In deciding this question of materiality, the court need not look beyond the four corners of the complaint. Puma v. Marriott, supra, 294 F.Supp. at 1120. The amended complaint alleges, among other things, that defendants conspired together and engaged in a common plan or concert of action to bring about the illegal issue, distribution and sale of unregistered securities to the plaintiffs. Furthermore, they are alleged to have made several trips to Chicago to consult with and advise their co-defendants concerning the authorization, issue, sale, underwriting and registration of the unregistered securities. Such acts of consultation and giving advice concerning the illegal sale of unregistered securities within the forum constituted a material part of the allegedly illegal events which form the core of the plaintiffs’ cause of action in the present case. Accordingly, venue is proper in the forum under 15 U.S.C.A. § 78aa; and as a result, the out of state service of process was authorized. Therefore, this court has personal jurisdiction of the defendants. Even if each defendant’s activities alone in the forum were not in themselves a material part of the illegal events alleged, defendants are alleged to have conspired and engaged in a common scheme with their co-defendants to illegally sell unregistered securities and to defraud plaintiff purchasers. It is becoming increasingly recognized that, in order to avoid unnecessary multiplicity of suits and fragmentation of issues, 15 U.S.C.A. § 78aa should be read as providing that venue is proper in any district where it is alleged that any one defendant has committed acts which are violative of the Act and in furtherance of an alleged illegal scheme. E. g., In re Penn Central Securities Litigation, 338 F.Supp. 438, 440 (E.D.Pa. 1972), cases and authorities cited. Numei’ous acts in the forum by various defendants in furtherance of the alleged conspiracy are set forth in the complaint, including the mailing of letters containing misstatements and" }, { "docid": "9492186", "title": "", "text": "F.2d 264, 270 and n. 10 (7th Cir.1978). Rather, venue is proper in this district because all the defendants, in the consent to jurisdiction provision, consented to both jurisdiction and venue. Furthermore, this action might have been brought in the Northern District of Georgia. Jurisdiction exists over defendants and venue is proper in the Northern District of Georgia, as that is where all defendants reside. See 28 U.S.C. § 1391(a). Thus, the focal point of the analysis is convenience and interest of justice, to which the court now turns. C. The Convenience of Parties and Witnesses and the Interest of Justice Favor a Transfer of this Action Once it has been determined that the court has the power to transfer an action under § 1404(a), both the private interests of the parties and the public interest of the court must be considered in evaluating the convenience and fairness of transfer. Private interests include 1) plaintiff’s choice of forum, 2) the situs of material events, 3) the relative ease of access to sources of proof in each forum including the court’s power to compel the appearance of unwilling witnesses at trial and the costs of obtaining the attendance of witnesses, 4) convenience to the parties — specifically, their respective residences and abilities to bear the expense of trial in a particular forum. See generally G. H. Miller & Co. v. Hanes, 566 F.Supp. 305, 307 (N.D.Ill.1983); Blumenthal v. Management Assistance, Inc., 480 F.Supp. 470, 472-74 (N.D.Ill.1979); Coats Co., Inc. v. Vulcan Equipment Co. Ltd., 459 F.Supp. 654, 656-57 (N.D.Ill.1978); 15 C. Wright & A. Miller, Federal Practice §§ 3849-53 (1986). Public interest factors include the court’s familiarity with applicable law and the desirability of resolving controversies in their locale. See Van Gelder v. Taylor, 621 F.Supp. 613, 619 (N.D.Ill.1985). 1. Plaintiff’s Choice of Forum in Relation to the Situs of Material Events Plaintiff’s choice of forum, though not accorded the same importance as under the doctrine of forum non conveniens, see Coats, 459 F.Supp. at 656-57, is normally given deference, unless the chosen forum lacks any significant connection with the claim." }, { "docid": "10514566", "title": "", "text": "motion to dismiss for lack of personal jurisdiction will therefore be granted. The investors’ motion to dismiss will be denied. II. MOTION TO DISMISS BECAUSE OF IMPROPER VENUE Six of the defendant investors — Phillips, Beasley, Carnes, Taylor, Schlein, and Moore — and Exchange Bank moved to dismiss because of improper venue, Fed.R. Civ.P. 12(b)(3). In addition, all defendants have argued that because venue was laid in the wrong district, the case should be transferred to the United States District Court for the Middle District of Florida pursuant to 28 U.S.C. § 1406(a). Since this is a diversity action, venue is proper if this is the district “where all plaintiffs or all defendants reside, or in which the claim arose.” 28 U.S.C. § 1391(a). Neither all plaintiffs nor all defendants reside in this district. Whether this is the district “in which the claim arose” depends upon whether, in comparison with other possible forums, the most significant contacts underlying this cause of action took place here. Ghazoul v. International Management Services, Inc., 398 F.Supp. 307, 314-15 (S.D.N.Y.1975). Many of the negotiations, the signing of the agreement of sale, and the closing of the stock purchase transaction took place in this district. During his negotiations, Boggs sent letters and made telephone calls to representatives of the Hughes estate from the Eastern District of Arkansas, and plaintiff’s economic loss was registered in that district. The investors agreed to participate in the stock purchase transaction and borrowed the funds to do so while in the Middle District of Florida. Of these three possible forums, the Eastern District of Pennsylvania was the site of the most significant contacts since the operative events which gave rise to plaintiff’s cause of action took place here. This is the district where the claim arose, and venue therefore is proper. Defendants’ motion to dismiss because venue is improper will be denied. III. MOTION FOR CHANGE OF VENUE All of the defendants except Boggs have moved to transfer this action to the United States District Court for the Middle District of Florida pursuant to 28 U.S.C. § 1404(a), which provides:" }, { "docid": "5116735", "title": "", "text": "1971 through 1973. The plaintiffs all reside in the Washington, D. C. area and were purchasers of TDA stock. TDA is a New York corporation with its principal place of business located in New York city. The first issue presented is whether venue is proper for this action in the Eastern District of Pennsylvania. The applicable venue provision is 15 U.S.C. § 78aa. If venue is proper under 15 U.S.C. § 78aa, then 28 U.S.C. § 1404(a) is the applicable transfer provision. If venue is not proper in this district, then 28 U.S.C. § 1406(a) applies. VENUE UNDER 15 U.S.C. § 78aa. 15 U.S.C. § 78aa provides that venue is proper in a civil suit where (1) any act or transaction constituting the violation occurred; (2) a defendant is found; (3) a defendant is an inhabitant; or (4) a defendant transacts business. In Re Penn Central Securities Litigation, 338 F.Supp. 438, 440 (E.D.Pa.1972); United Industrial Corp. v. Nuclear Corp. of America, 237 F.Supp. 971, 976 (D.Del.1964). In the present case, no plaintiff or defendant is found in or is an inhabitant of the Eastern District of Pennsylvania. None of the shares of the TDA stock in question were purchased in the Eastern District of Pennsylvania. Venue is based on the mailing of proxy statements, quarterly and annual reports, and prospectuses by TDA to non-parties who reside in the Eastern District of Pennsylvania. These mailings are sufficient to establish proper venue in the Eastern District of Pennsylvania. 15 U.S.C. § 78aa provides that venue properly lies in a district “wherein any act or transaction constituting the violation occurred.” This provision was construed in Hooper v. Mountain States Securities Corp., 282 F.2d 195, 204-05 (5th Cir. 1960), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961) as follows: We think that any use of instrumentalities of the mails or other interstate facilities made within the forum district constituting an important step in the execution of the fraudulent, deceitful scheme or in its consummation is sufficient. Generally speaking we would say that any act which would be sufficient to constitute" }, { "docid": "8079102", "title": "", "text": "unnecessary inconvenience and expense.” Resources Inv. Corp. v. Hughes Tool Co., 561 F.Supp. 1236, 1238 (D.Colo.1983). Transfer of an action is within the district court’s discretion. In re Ralston Purina Co., 726 F.2d 1002 (4th Cir.1984). Defendants seek a transfer on these grounds: (1) the majority of potential witnesses whose testimony will be essential to the defense reside in the Northern District of California; and (2) the majority of documents existing as sources of proof are located in the Northern District of California. (Defendants’ brief, at 2.) Nevertheless, a plaintiff’s choice of forum is a factor deserving substantial weight in determining the question of transfer under § 1404(a). Norwood v. Kirkpatrick, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789 (1955). Indeed, a plaintiff’s choice is entitled to great weight and will not be lightly disturbed, especially where the plaintiff is a resident of the judicial district where the suit is filed. See Houk v. Kimberly-Clark Corp., 613 F.Supp. 923 (W.D.Mo.1985). Plaintiffs reside in Colorado and this state is their forum of choice. Defendants have not submitted a sufficient reasons for disturbing the plaintiffs’ choice. Accordingly, IT IS ORDERED that: (1) Defendant Peter R. Stromer’s motion to dismiss for lack of personal jurisdiction is denied; (2) Defendants’ motion to dismiss for improper venue is denied; (3) Defendants’ motion for transfer of venue is denied; and (4) Defendants shall file an answer to the complaint within 20 days after the date of this order. . Sainthood, of course, is a status within the jurisdiction of a higher court, upon which this opinion does not presume to express views. Suffice it to say that the usual prerequisite of death was not required. . See also Affidavit of G. Miceli, para. 14 (alleging that the plaintiffs obtained a letter sent by the defendant Stromer to the Church of Universal Harmony indicating that he would act as legal counsel for the Church of Universal Harmony and defend it against legal attacks aimed at its chartered congregations, ministers, and individual members from any branch or agency of the federal or state governments. The letter also" }, { "docid": "15693304", "title": "", "text": "court wrote: “he lives and works exclusively within the Southern District of Ohio_ It is thus apparent that defendant Langdon does not reside and cannot be found, in either of his within capacities, in [the forum district].” Bostic, 517 F.Supp. at 629-30. Therefore, the pension plan would have to be “found” in the forum for venue to be be proper. Id. at 630. The plaintiffs have not established that any of the defendants “purposefully directed” their activities toward New Hampshire to any significant degree. Moreover, the litigation does not arise out of or relate to those activities. The plaintiffs’ allegations relate to the defendants’ management of the ESOP’s assets and not to the distribution of benefits. Therefore, the court finds that the defendants lack the minimum contacts necessary for any of them to be “found” in New Hampshire. Even if the plaintiffs could establish that venue was permissible in New Hampshire, transfer of this action to New Jersey still would be warranted. Transfer when venue is proper is governed by 28 U.S.C. § 1404(a): For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. When venue is improper, transfer is governed by 28 U.S.C. § 1406(a), which permits transfer to any district in which the action could have been brought “if it be in the interest of justice.” “[I]f the action is properly transferable pursuant to § 1404(a), assuming venue is proper in this district, then a fortiori the action will also be properly transferable pursuant to § 1406(a), assuming venue in this district is improper.” Sheet Metal Workers’ National Pension Fund v. Gallagher, 669 F.Supp. 88, 91 (S.D.N.Y.1987) (ERISA action transferred without resolving whether court has personal jurisdiction over the defendants or whether venue is proper). Thus, the court will consider whether transfer would be warranted by § 1404(a), bearing in mind that a determination of whether a transfer is appropriate is a matter within the discretion of the court. United States ex rel. LaValley v. First" }, { "docid": "1976077", "title": "", "text": "it was filed had personal jurisdiction over the defendants or not. The section is thus in accord with the general purpose which has prompted many of the procedural changes of the past few years — that of removing whatever obstacles may impede an expeditious and orderly adjudication of cases and controversies on their merits.” 369 U.S. at 466, 82 S.Ct. at 916. Defendants in the instant case argue that § 1406(a) is not here applicable since venue in Illinois was not improper. The Goldlawr case is further distinguished on the ground that it involved a Federal cause of action and corporate defendants, factors which are not present here. Section 1406(a) provides for the transfer of cases where venue is laid in the wrong district, if it be in the interest of justice. Since this is a diversity action, plaintiff had a choice under 28 U.S.C. § 1391(a) of laying venue in the judicial district where he resides (Illinois) or in the district where all defend ants reside (Minnesota). Thus venue in Illinois was permissible. In a similar situation Selsby v. Vecchione, 216 F.Supp. 207 (S.D.N.Y.1963), held that § 1406(a) was not applicable. That was a diversity action by a New York citizen against a citizen of New Jersey where venue was initially laid in a New York Federal District Court. Defendant was served in New Jersey, but moved to vacate the service, which motion was granted. Thereafter plaintiff sought a transfer to the New Jersey Federal District Court under § 1406(a). Denying the motion, the Court noted that venue in New York was not improper, which precluded transfer under that section. Plaintiff in the Selsby case was anxious to effectuate a transfer since the applicable statute of limitations of the transferee forum would not permit the filing of a new action. This was also the basis for plaintiff’s motion to transfer in Skilling v. Funk Aircraft Co., 173 F.Supp. 939 (W.D.Mo.1959). In that diversity action the Court refused to grant a transfer under § 1406(a) on the ground that plaintiff was well aware that no service could be made on" }, { "docid": "20042969", "title": "", "text": "Sinclair v. Kleindienst, 711 F.2d 291, 293-94 (D.C.Cir.1983) (quoting Goldlawr, Inc., 369 U.S. at 466-67, 82 S.Ct. 913). These obstacles include “lack of personal jurisdiction, improper venue, and statute of limitation bars.” Id. at 294. Here, several reasons militate in favor of transfer to the United States District Court for the Southern District of New York. First, because BOC operates a branch in New York, it both “resides” and “has an agent” in the forum, and thus any suit against it may be properly venued under the ATA. See Crenshaw v. Antokol, 287 F.Supp.2d 37, 42 (D.D.C.2003) (“To transfer an action, the court must ensure as a preliminary matter that venue is proper ... in the transferee forum.”). Second, under defendant’s own interpretation of the ATA’s service provision — which the Court adopts — because venue would lie in the Southern District of New York, plaintiffs could invoke the Act’s provision of nationwide service of process to obtain personal jurisdiction over BOC. Moreover, even if plaintiffs were somehow unable to utilize the nationwide service provision in the ATA, BOC is subject to general jurisdiction in New York by virtue of maintaining a branch office in the State — a fact BOC has previously conceded. See MTD Br. at 15 (“BOC is subject to the general jurisdiction of the courts of New York.”). Thus, transfer is warranted here because an alternative forum exists in which the courts will have jurisdiction over defendant BOC. See Simpson v. Fed. Bureau of Prisons, 496 F.Supp.2d 187, 194 (D.D.C.2007) (transferring case because district court lacked personal jurisdiction over defendants and “the District Court for the Middle District of Pennsylvania will have personal jurisdiction over the two defendants”). Finally, plaintiffs express concern that, were this action dismissed, applicable statutes of limitation would bar them from raising several of their claims against BOC in a new action. MTD Opp. at 33. Plaintiffs’ claims under the ATA, for example, are subject to a four-year limitations period. See 18 U.S.C. § 2335(a) (“[A] suit for recovery of damages under section 2333 ... shall not be maintained unless commenced within" }, { "docid": "12282864", "title": "", "text": "to require some action by the defendants that “reaches into” the forum district to obtain investors for the fraudulent scheme. See, e.g., Stern v. Gobeloff, 332 F.Supp. 909, 911 (D.Md.1971) (“Where an offer to sell securities is made by telephone by an offeror in one federal district and accepted by an offeree in another, part of the ‘act or transaction constituting the violation’ occurs in each district, and venue may be laid in either”); Zorn v. Anderson, 263 F.Supp. 745, 748 (S.D.N.Y.1966) (“[Pjroxies sent into this district by interstate mail, with the alleged purpose of securing approval of the contracts, are adequate to sustain venue”). Defendants argue, however, that the mailing of an offering circular into this district by Mr. Underwood and phone calls made by Mr. Schreeder to defendants from this district do not satisfy the Hilgeman test, because these communications were not initiated by defendants. Nevertheless, in the one case this Court has found directly addressing such a situation, this factor was not found to be determinative. In Lehman Brothers Kuhn Loeb v. Lawrence, [1981-1982 Transfer Binder] Fed. Sec.L.Rep. (CCH) 1198,314 (S.D.N.Y.1981), plaintiff, a corporation engaged in the business of securities brokerage, brought suit in the Southern District of New York against an individual residing in California alleging, inter alia, violation of § 10(b) of the Securities Exchange Act of 1934. In determining whether venue was proper under section 27 of the Act, 15 U.S.C. § 78aa, the court assumed the truth of defendant’s claim that the only contact he had had with plaintiff or New York was an unsolicited telephone call from one of plaintiff’s salesmen recommending that he purchase certain securities. Id. at pp. 91,965-91,966. Although defendant was thus assumed not to have initiated any communications with the forum district, the court still found that defendant’s “use of an instrumentality of commerce in connection with the order of stock, with the fraudulent intent not to pay for the same, is sufficient to lay venue in this district.” Id. at p. 91,966; see also id. n. 14 and cases cited therein. In support of their proposed “initiation”" }, { "docid": "5076646", "title": "", "text": "F.Supp. 786 (D.Colo.1975) and by this court in Ritter v. Colorado Interstate Gas Co., 593 F.Supp. 1279 (D.Colo.1984) I decline to exercise my discretionary power to take pendent jurisdiction over the plaintiff’s state law claims. Under Fed.R.Civ.P. 12(b)(2), the defendant South Fork Oil and Gas Company (South Fork) has filed a motion to dismiss the plaintiff’s federal claim for lack of personal jurisdiction. Personal jurisdiction in Securities Act cases is proper when the defendants reside in the United States. 15 U.S.C. § 78aa (1982). The Securities Act authorizes nationwide service of process. Id. South Fork’s motion to dismiss for lack of personal jurisdiction is therefore denied. South Fork has also alleged that venue is not proper in Colorado and has sought either dismissal or transfer. Under § 78aa, venue is proper in a district where (1) the defendant is an inhabitant; (2) where the defendant is found; (3) where the defendant transacts business; or (4) where any act or transaction constituting the violation occurred. Venue is proper if one act in furtherance of an unlawful scheme was committed in the forum district. S-G Securities, Inc., v. Fugua Inv. Co., 466 F.Supp. 1114 (D.Mass.1978); Zorn v. Anderson, 263 F.Supp. 745 (S.D.N.Y.1966). The act need not have constituted the core of the alleged violation, nor even have been illegal, as long as it was more than an immaterial part of the alleged violation. S-G Securities, Inc., 466 F.Supp. 1114; Burkhart v. Allson Realty Trust, 363 F.Supp. 1286 (N.D.Ill.1973). Section 78aa does not require each defendant to have performed an allegedly wrongful act if all the defendants were intended beneficiaries and were part of the allegedly fraudulent scheme. Carty v. Health-Chem Corp., 567 F.Supp. 1 (E.D.Pa.1982). Here, the chairman of South Fork’s board of directors wrote and mailed a letter to Colorado Stock Transfer Service (CSTS) instructing it not to register the stock at issue. South Fork thereby committed an act sufficient to allow venue in either the district where the letter was written or the district where the letter was received. See Stern v. Gobeloff, 332 F.Supp. 909 (D.Md.1971). In addition, CSTS’s" } ]

[ { "docid": "4296768", "title": "", "text": "this evidence to be insufficient to demonstrate an intent to trade on the reputation of SPICE ISLANDS mark, but we do not consider it for this purpose. Ordinarily, for a word mark we do not look to the trade dress, which can be changed at any time. Vornado, Inc. v. Breuer Electric Mfg. Co., 390 F.2d 724, 55 CCPA 858, 156 USPQ 340, 342 (1968). But the trade dress may nevertheless provide evidence of whether the word mark projects a confusingly similar commercial impression. Applicant’s labels support rather than negate that of which opposer complains: that SPICE VALLEY inherently creates a commercial impression which is confusingly similar to that of SPICE ISLANDS. When balancing the interests in a famous, established mark against the interests of a newcomer, we are compelled to resolve doubts on this point against the newcomer. Giant Food, supra, 710 F.2d at 1571, 218 USPQ at 395. 7) The Fame of Opposer’s Mark Specialty Brands has been using the SPICE ISLANDS mark for over forty years, and over one hundred spices, herbs, and seasonings are sold under the mark with annual sales of approximately $25,-000,000. Teas have been sold under the SPICE ISLANDS mark since the late 1950’s, generating approximately $12,000,-000 worth of sales between 1957 and 1981. 220 USPQ at 1073. Specialty Brands has expended substantial sums in advertising and promotion, including point-of-sale displays, promotional literature such as recipe books, and newspaper advertisements; over the years, these sums total several millions of dollars. Specialty Brands has been successful in protecting its mark SPICE ISLANDS against other confusingly similar marks. See Spice Islands, Inc. v. Frank Tea and Spice Co., 505 F.2d 1293, 184 USPQ 35 (CCPA 1974) (SPICE TREE); Spice Islands Co. v. Spice Land Products, Inc., 262 F.2d 356, 120 USPQ 64 (2d Cir.1959) (SPICE LAND); Specialty Brands, Inc. v. Spiceseas, Inc., 220 USPQ 73 (TTAB 1983) (SPICE SEAS); Spice Islands Co. v. Gold Seal Co., 136 USPQ 311 (TTAB 1962) (ISLAND SPICE MIST). The Court of Appeals of the Second Circuit stated in 1959 that the SPICE ISLANDS mark had attained secondary meaning in" } ]

[ { "docid": "1288726", "title": "", "text": "VALLEY, Specialty Brands, 748 F.2d at 676. Indeed the Board acknowledged “similarities in meaning between the terms ‘PLAY’ and ‘FUN.’ ” The single-syllable suffixes DOH and DOUGH sound the same. In light of a modern trend to simplify the spelling of “gh” words, consumers may even perceive one as an interchangeable abbreviation for the other. Again, the Board alluded to the unrebutted testimony of Dr. William Stewart who noted the “graphic confusability” of these two terms. Despite the dangers that consumers may receive the same commercial impression from both marks, the Board incorrectly discounted the evidence of similarity due to the fame of PLAY-DOH. In a correct assessment of the duPont factors, the fame of PLAY-DOH should have magnified the significance of these similarities. In the context of a far less famous mark— FUN FACTORY—the Board properly perceived PLAY FACTORY as confusingly similar. General Mills Fun Group v. Channel Cos., 183 USPQ 367 (Trademark Trial & App.Bd.1974). Giving proper weight to the strength of Kenner’s mark, this court reaches a similar result in this case. III. Examination of several other du-Pont factors underscores the Board’s error in discounting the fame of opposer’s mark. The marks PLAY-DOH and FUNDOUGH are used for practically identical products, namely modeling compounds and related modeling accessories. See, e.g., Specialty Brands, 748 F.2d at 672. Both Kenner and Rose Art market their products in practically identical channels of trade, namely toy outlets. Id. Kenner’s lengthy and extensive use of the PLAY-DOH mark on a wide variety of toy products emphasizes the mark’s fame and strength. Both marks appear on inexpensive products purchased by diverse buyers without exercising much care. This factor accentuates the significance of a famous mark. Id. at 676. In the event of doubts about the likelihood of confusion, the Board and this court should resolve those doubts against the newcomer, Geigy Chemical v. Atlas Chemical Industry, 438 F.2d 1005, 1008, 169 USPQ 39, 40 (CCPA 1971); Planters Nut, 305 F.2d at 920, especially when the established mark is famous. Nina Ricci, 889 F.2d at 1074. In sum, application of the various duPont factors" }, { "docid": "2669632", "title": "", "text": "variations of the standard character mark. Citigroup cites Nina Ricci, S.A.R.L. v. E.T.F. Enterprises, Inc., 889 F.2d 1070, 1073-74 (Fed.Cir.1989), in support of its argument. But in Nina Ricci, the absence of actual confusion had no probative value because no products bearing the mark had been sold and the extent of usage of the mark was unknown. Unlike the mark at issue in Nina Ricci, CCB’s marks have been used commercially in overlapping markets. Although the most potentially confusing form of CCB’s marks, that is, a version deemphasizing “Capital” and emphasizing “City Bank,” has not yet been used, the critical words are all in use and there is no evidence of actual confusion. Substantial evidence supports the T.T.A.B.’s analysis of the similarity of the marks and the nature and extent of any actual confusion. II. After weighing the relevant DuPont factors, we conclude that the T.T.A.B. did not err in finding no likelihood of confusion between the parties’ respective marks. Not all of the DuPont factors are necessarily “relevant or of equal weight in a given case, and any one of the factors may control a particular case.” In re Majestic Distilling Co., 315 F.3d 1311, 1315 (Fed.Cir.2003) (internal quotation marks omitted). Six of the thirteen DuPont factors are relevant to this case: (1) The similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. (2) The similarity or dissimilarity and nature of the goods or services as described in an application or registration or in connection with which a prior mark is in use. (3) The similarity or dissimilarity of established, likely-to-eontinue trade channels. (4) The ... buyers to whom sales are made. (5) The fame of the prior mark (sales, advertising, length of use).... (7) The nature and extent of any actual confusion. 476 F.2d at 1361. The T.T.A.B. is not required to discuss every DuPont factor and may find a single factor dispositive. See, e.g., Kellogg Co. v. Pack’em Enters. Inc., 951 F.2d 330, 333 (Fed.Cir.1991). The first DuPont factor assesses the fame of the CITIBANK mark. A famous mark" }, { "docid": "6169567", "title": "", "text": "annual volume of sales. In addition, Avery Dennison markets its goods internationally. See 15 U.S.C. § 1125(c)(l)(B)-(D), (G). However, we disagree that Avery Dennison’s showing establishes fame. Avery Dennison submitted three market research studies regarding perceptions of the “Avery” and “Avery Dennison” brands. Discussion groups through which one study was conducted were formed “using Avery client lists,” and produced the conclusion that the “Avery” name has “positive associations ... among current customers.” Surveyed persons in the other two studies were mostly “users and purchasers of office products” and “[o]ffice supply consumers.” The one consumer group that did not necessarily include office supply purchasers for businesses was still required to be “somewhat” or “very” familiar with Avery products in order to be counted. Avery Dennison’s marketing reports are comparable to a survey we discussed in Anti-Monopoly, Inc. v. General Mills Fun Group, Inc., 684 F.2d 1316 (9th Cir.1982), proving only the near tautology that consumers already acquainted with Avery and Avery Dennison products are familiar with Avery Dennison. See id. at 1323-24. The marketing reports add nothing to the discussion of whether consumers in general have any brand association with “Avery” and “Avery Dennison,” and no evidence of product awareness relates specifically to the “Dennison” trademark. Although proper consumer surveys might be highly relevant to a showing of fame, we reject any reliance on the flawed reports submitted by Avery Dennison. Finally, Avery Dennison—like any company marketing on the Internet—markets its products worldwide. See 15 U.S.C. § 1125(c)(1)(D). By itself, this factor carries no weight; worldwide use of a non-famous mark does not establish fame. Because famousness requires more than mere distinctiveness, and Avery Denni-son’s showing goes no further than establishing secondary meaning, we hold that Avery Dennison has not met its burden to create a genuine issue of fact that its marks are famous. Avery Dennison’s failure to fulfill its burden on this required element of both dilution causes of action mandates summary judgment for Appellants. 5 Likelihood of Confusion Remains Irrelevant We recognize that our discussion of the breadth of fame and overlapping market segments begins to sound like" }, { "docid": "2669631", "title": "", "text": "misdirected telephone calls, visits, or requests for information or other indicia of confusion in the marketplace. Id. at 1664. In contrast, in Citibank, N.A. v. City Bank of San Francisco, Citigroup asserted its Citibank International San Francisco mark against the City Bank of San Francisco. 206 U.S.P.Q. at 1002. The court found it “extremely significant” that many instances of actual confusion arose after less than one month of concurrent use of the marks. Id. at 1009. On appeal, Citigroup asserts that it has offered services under the brand “CitiCapital” and, therefore, CCB’s standard character marks could damage the value and goodwill associated with its marks. Appellant’s Br. 9. Although this argument could be considered waived, it also lacks merit. The CITICAPITAL mark was not used in commerce until November 2000, well after the 1995 priority dates of CCB’s applications. Also, Citigroup offers no evidence of any confusion between the CitiCapital brand and CCB. Citigroup argues that the significance of the absence of actual confusion is negated because CCB has not used all of the potential variations of the standard character mark. Citigroup cites Nina Ricci, S.A.R.L. v. E.T.F. Enterprises, Inc., 889 F.2d 1070, 1073-74 (Fed.Cir.1989), in support of its argument. But in Nina Ricci, the absence of actual confusion had no probative value because no products bearing the mark had been sold and the extent of usage of the mark was unknown. Unlike the mark at issue in Nina Ricci, CCB’s marks have been used commercially in overlapping markets. Although the most potentially confusing form of CCB’s marks, that is, a version deemphasizing “Capital” and emphasizing “City Bank,” has not yet been used, the critical words are all in use and there is no evidence of actual confusion. Substantial evidence supports the T.T.A.B.’s analysis of the similarity of the marks and the nature and extent of any actual confusion. II. After weighing the relevant DuPont factors, we conclude that the T.T.A.B. did not err in finding no likelihood of confusion between the parties’ respective marks. Not all of the DuPont factors are necessarily “relevant or of equal weight in a" }, { "docid": "6797652", "title": "", "text": "of potential non-infringing uses.” 189 F.3d at 875. Further, the Avery court chided Avery Denni-son for not providing evidence showing that “customers in general have any brand association” with Avery Dennison’s marks. Id. at 879 (emphasis added). In many cases, the list of famousness factors contained in the statute can be quite useful in assisting a fact-finder to determine whether a mark is famous. § 1125(c)(1)(A) to (H). But the party seeking protection must initially make at least a minimal showing of the requisite level of fame. In this case, Trek has presented no evidence that its TREK mark has achieved fame among the general consuming public, as opposed to simply among bicycle enthusiasts. The closest Trek has come to demonstrating this type of fame has been to produce evidence showing that the champion bicycle racer Lance Armstrong has often been pictured with a Trek bicycle in prominent displays, such as the front page of large circulation newspapers and on Wheaties boxes. This incidental appearance of a Trek bicycle does not by itself constitute evidence that the bicycle brand is famous. Many products receive broad incidental media coverage. Such promotion does not lead to the conclusion that their trademarks have become a part of the collective national consciousness. On the other hand, surveys showing that a large percentage of the general public recognizes the brand, press accounts about the popularity of the brand, or pop-culture references involving the brand would provide evidence of fame. TCPIP, 244 F.3d at 99; see also Mattel, 296 F.3d at 903 (noting that the commercial success of the Barbie Girl song establishes the fame of the Barbie mark.) Because TREK has produced no evidence from which a reasonable fact-finder could find that TREK is famous among members of the general consuming public, we conclude that, for reasons different from those given by the district court, Trek’s dilution cause of action cannot succeed. Summary judgment was properly granted to OrbiTrek on that cause of action. III. Attorney Fees As we reverse the judgment for Thane and remand this case to the district court for further proceedings," }, { "docid": "1288719", "title": "", "text": "mark, his competitors may come closer to his mark than would be the case with a strong mark without violating his rights. Id. 254 F.2d at 160. Thus, a mark with extensive public recognition and renown deserves and receives more legal protection than an obscure or weak mark. Achieving fame for a mark in a marketplace where countless symbols clamor for public attention often requires a very distinct mark, enormous advertising investments, and a product of lasting value. After earning fame, a mark benefits not only its owner, but the consumers who rely on the symbol to identify the source of a desired product. Both the mark’s fame and the consumer’s trust in that symbol, however, are subject to exploitation by free riders. A competitor can quickly calculate the economic advantages of selling a similar product in an established market without advertising costs. These incentives encourage competitors to snuggle as close as possible to a famous mark. This court’s predecessor recognized that a mark’s fame creates an incentive for competitors “to tread closely on the heels of [a] very successful trademark.” Planters Nut & Chocolate Co. v. Crown Nut Co., 305 F.2d 916, 920, 134 USPQ 504, 508 (CCPA 1962). Recognizing the threat to famous marks from free riders, this court’s predecessor allowed “competitors [to] come closer” to a weak mark. Sure-Fit Prods., 254 F.2d at 160. A strong mark, on the other hand, casts a long shadow which competitors must avoid. See, e.g., Nina Ricci, 889 F.2d at 1074. Thus, the Lanham Act’s tolerance for similarity between competing marks varies inversely with the fame of the prior mark. As a mark’s fame increases, the Act’s tolerance for similarities in competing marks falls. For this reason, this court emphasizes: When an opposer’s trademark is a strong, famous mark, it can never be “of little consequence”. The fame of a trademark may affect the likelihood purchasers will be confused inasmuch as less care may be taken in purchasing a product under a famous name. Specialty Brands, 748 F.2d at 675; see also B.V.D. Licensing v. Body Action Design, 846 F.2d 727," }, { "docid": "13149009", "title": "", "text": "is not a contraceptive. Does not harm condoms. Id. (emphasis in original). In 1997, the text on the box was revised slightly. See Defs.’s 56.1, Ex. 76. On the Very Private-web site, <%oww.veryprivate.com>, plaintiffs use the terms “intimate moisture” and “intimate moisturizer” interchangeably. See Defs.’ 56.1, Exs. 77-78 A-I (“A few drops of intimate moisturizer before and after intimacy will do the trick”; “The first intimate moisture to eliminate vaginal dryness instantly ... ”; “The first intimate moisturizer that feels as natural as a woman’s own lubricating fluid”; “It is advisable to always use an intimate moisturizer before intercourse to protect the tender tissue”). On September 10, 1997, Brandwynne filed an application with the PTO to register the term “VERY PRIVATE INTIMATE MOISTURE” as a trademark for “non-medicated personal hygiene preparations for vaginal care; namely, washes, lubricants, moisturizers, conditioners, lotions, cleansers, personal care preparations, moisturizing lotions, body lotions and skin lotions.” Pls.’, Application to PTO, Defs.’ 56.1, Ex. 74. In that application, Brandwynne disclaimed the exclusive right to use the word “moisture” apart from the mark. Id. Plaintiffs have only sold Very Private-Intimate Moisture in Colorado, California and Texas. Sales in 1998 were $100,000. See Pis.’ 56.1 ¶ 59. Brandwynne did not advertise until 1996. Subsequent advertising expenses were $11,336 in 1996, $52,875 in 1997 and $52,875 in 1998. See Pis.’ Response to Defs.’s Third Set of Interrogatories, Defs.’ 56.1, Ex. 79. D. Combe’s Commercialization of “VAGISIL® Intimate Moisturizer” As early as 1973, Combe Inc. began manufacturing and marketing a line of feminine hygiene products in the United States under the registered trademark VAGISIL®, including VAGISIL® medicated lotions, VAGISIL® medicated cremes, VAGISIL® cosmetic powder, VAGISIL® cosmetic deodorant sprays and washes, VAGISIL® vaginal suppositories and VAGISIL® lotions for feminine use. See Defs.’ 56.1, Exs. 80-85. In May 1993, five months before Brandwynne approached Combe with her concept, Cynthia D’Andrea-Herns, Combe’s feminine hygiene product expert, distributed to high level management at Combe Inc. and Com-be Int’l a memorandum which included a comprehensive overview of the market for products that alleviate vaginal dryness. See. Memorandum, May 7, 1993, Pis.’ 56.1, Ex. 6. D’Andrea-Herns’" }, { "docid": "1288727", "title": "", "text": "III. Examination of several other du-Pont factors underscores the Board’s error in discounting the fame of opposer’s mark. The marks PLAY-DOH and FUNDOUGH are used for practically identical products, namely modeling compounds and related modeling accessories. See, e.g., Specialty Brands, 748 F.2d at 672. Both Kenner and Rose Art market their products in practically identical channels of trade, namely toy outlets. Id. Kenner’s lengthy and extensive use of the PLAY-DOH mark on a wide variety of toy products emphasizes the mark’s fame and strength. Both marks appear on inexpensive products purchased by diverse buyers without exercising much care. This factor accentuates the significance of a famous mark. Id. at 676. In the event of doubts about the likelihood of confusion, the Board and this court should resolve those doubts against the newcomer, Geigy Chemical v. Atlas Chemical Industry, 438 F.2d 1005, 1008, 169 USPQ 39, 40 (CCPA 1971); Planters Nut, 305 F.2d at 920, especially when the established mark is famous. Nina Ricci, 889 F.2d at 1074. In sum, application of the various duPont factors to this case suggests that the Board erred as a matter of law in concluding that FUNDOUGH is not confusingly similar to PLAY-DOH. The Board was wrong to disregard this glaring evidence and resolve doubts in the applicant’s favor. Adding to the overall similarity of the competing marks’ commercial impression discussed above is the similarity of trade dress. As this court has stated: Ordinarily, for a word mark we do not look to the trade dress, which can be changed at any time. Vornado, Inc. v. Breuer Electric Mfg. Co., 390 F.2d 724, 156 USPQ 340, 342 (CCPA 1968). But the trade dress may nevertheless provide evidence of whether the word mark projects a confusingly similar commercial impression. Id. 748 F.2d at 674. The multitude of similarities in the trade dress of PLAY-DOH and FUNDOUGH products cries out for recognition. The color (dominated by yellow), size, and shape of the packaging for both products is the same. Comparable fictitious characters in a hat adorn the packaging of both products. Both products feature promotions—discounts, rebates, and" }, { "docid": "1288717", "title": "", "text": "Restaurant v. Stockpot, Inc., 737 F.2d 1576, 1578, 222 USPQ 665, 666-67 (Fed.Cir.1984), this court reviews the Board’s ultimate conclusions about confusing similarity as questions of law. Sweats Fashions v. Pannill Knitting Co., 833 F.2d 1560, 1565, 4 USPQ2d 1793, 1797 (Fed.Cir.1987); Specialty Brands v. Coffee Bean Distribs., 748 F.2d 669, 671, 223 USPQ 1281, 1282 (Fed.Cir.1984); Giant Food v. Nation’s Foodservice, 710 F.2d 1565, 1569, 218 USPQ 390, 394 (Fed.Cir.1983). A trademark owner may oppose the registration of any competing mark “likely, when used on or in connection with the goods of the applicant, to cause confusion, or to cause mistake, or to deceive.” 15 U.S.C. § 1052(d) (1988). The test for likelihood of confusion does not focus on similarity of competing marks in the abstract. Rather the test evaluates objective evidence that the competing marks, when used in the marketplace, are likely to confuse the purchasing public about the source of the products. Paula Payne Prods. Co. v. Johnson Publishing Co., 473 F.2d 901, 902, 177 USPQ 76, 77 (CCPA 1973). The test for likelihood of confusion requires the Board and this court to consider evidence on a wide variety of factors. In re E.I. duPont deNemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567 (CCPA 1973). Specifically, this court considers the thirteen factors set forth in the duPont case. Id. As dictated by the evidence, different factors may play dominant roles in determining likelihood of confusion. Nina Ricci, S.A.R.L. v. E.T.F. Enters., 889 F.2d 1070, 1073, 12 USPQ2d 1901, 1903 (Fed.Cir.1989). II. The fifth duPont factor, fame of the prior mark, plays a dominant role in cases featuring a famous or strong mark. Famous or strong marks enjoy a wide latitude of legal protection. Sure-Fit Prods. Co. v. Saltzson Drapery Co., 254 F.2d 158, 160, 117 USPQ 295, 296 (CCPA 1958). This court’s predecessor stated: It seems both logical and obvious to us that where a party chooses a trademark which is inherently weak, he will not enjoy the wide latitude of protection afforded the owners of strong trademarks. Where a party uses a weak" }, { "docid": "155976", "title": "", "text": "likelihood of confusion, the Board’s enunciated reasons were that the marks are “sufficiently different,” that there have been no “reported instances of actual confusion,” and that the district court had commented that the VITTORIO RICCI mark had been adopted in good faith without intent to capitalize on opposer’s marks. We do not agree, after considering all the findings, that the Board’s reasons support a conclusion of no likelihood of confusion. The Board stated that the different first names, VITTORIO and NINA, incorporated into the respective marks have obvious differences in sound, appearance and connotation, although it recognized that the surname, RICCI, is identical. However, the Board failed to consider the other marks of opposer and their effect on the similarity or dissimilarity of ETF’s mark. These marks, MADEMOISELLE RICCI, SIGNORICCI and CAPRICCI, according to Nina Ricci, indicate that the RICCI surname is a unifying name in opposer’s marks and is the dominant and significant part of opposer’s marks in identifying its goods. See Burger Chef Sys., Inc. v. Sandwich Chef, Inc., 608 F.2d 875, 878, 203 USPQ 733, 735 (CCPA 1979). Indeed, the Board has previously recognized the practice in the fashion industry of referring to surnames alone. See Nina Ricci, S.A.R.L. v. Haymaker Sports, Inc., 134 USPQ 26, 28 (TTAB 1962); Polo Fashions, Inc. v. La Loren, Inc., 224 USPQ 509, 512 (TTAB 1984). Furthermore, the Board accorded little or no importance to the increasing sales in many lines under opposer’s marks since the date of the district court decision. See Kimberly-Clark Corp., 774 F.2d at 1146-47, 227 USPQ at 542. As this court said in Specialty Brands, Inc. v. Coffee Bean Distribs., Inc., 748 F.2d 669, 675, 223 USPQ 1281, 1284 (Fed.Cir.1984) (citations omitted): When an opposer’s trademark is a strong, famous mark, it can never be “of little consequence”. The fame of a trademark may affect the likelihood purchasers will be confused inasmuch as less care may be taken in purchasing a product under a famous name. These factors argue against according controlling weight to the differences in the marks based solely on the use by the" }, { "docid": "155970", "title": "", "text": "ARCHER, Circuit Judge. Nina Ricci, S.A.R.L. (Nina Ricci) appeals from the decision of the Trademark Trial and Appeal Board (Board) of the United States Patent and Trademark Office in Opposition No. 69,977. Nina Ricci, S.A.R.L. v. E.T.F. Enterprises, Inc., 9 USPQ2d 1061 (TTAB 1988). The Board dismissed the opposition of Nina Ricci to the registration by E.T.F. Enterprises, Inc. (ETF) of the mark VITTORIO RICCI for handbags in Class 18, scarves, neckties, blouses, sweaters, coats, jackets and pants, in Class 25, and retail store services in the areas of shoes, clothing and accessories, in Class 42. We reverse. I A. This appeal involves the opposition filed by Nina Ricci against the registration of ETF’s mark VITTORIO RICCI, pursuant to Trademark Application Serial No. 73/416,354 filed in 1983, for the goods described above. Nina Ricci also opposes ETF’s registration of the VITTORIO RIC-CI mark for retail store services except in the areas of shoes and belts. Nina Ricci is a French corporation and couturier house established by the now-deceased dress designer of that name. In the United States, Nina Ricci first began selling perfume in 1947 and began selling clothing and accessories at least as early as 1962. It is the owner of the registered marks NINA RICCI, SIGNORICCI and CAPRICCI for perfumes, toiletries and cosmetic products. These marks, as well as MADEMOISELLE RICCI, have also been registered for a wide variety of clothing and accessories for women, including fashion gowns, ready-to-wear clothing, coats, handbags, neckwear and jewelry. For the years between 1981 and 1986, wholesale sales of NINA RICCI fragrance products in this country exceeded $200 million ($350 million at retail), with advertising and sales promotion expenditures aggregating around $37 million. Wholesale sales of NINA RICCI hosiery, sleepwear and lingerie during the same period were about $11 million; sales of women’s dresses, skirts, sweaters, blouses, suits and slacks were $3.7 million; and sales of women’s coats, raincoats, handbags, evening bags, tote bags, scarves, neckwear and jewelry have been substantial. More than $10 million was spent on advertising of these products on television and in the print media between 1970 and" }, { "docid": "13149048", "title": "", "text": "beige and white label and green lettering. VAGISIL® is sold in a pearl-colored bottle and a white and light blue box containing blue and purple lettering. The VAGISIL® box is twice as wide as the Very Private- box. The VAGISIL® dispenser appears at the top of the bottle while the Very Private- dispenser is at the bottom. The salient feature of each product is its highly distinguishable brand name: “Very Private”- appears in enlarged white capital letters within a dark green rectangle; VAGISIL® appears in large purple lower case letters with a large stylized purple and blue “V” in a blue box. Compare Defs.’ 56.1, Exs. 74, 75 with Ex. 87. When a defendant prominently displays its own brand name in conjunction with a similar mark, the likelihood of confusion is reduced. See W.W.W. Pharm. Co., Inc. v. Gillette Co., 984 F.2d 567, 573 (2d Cir.1993). The record of this case establishes, as a matter of law, that Com-be’s product and packaging could not cause either actual confusion or the likelihood of confusion in the mind of the consumer. Therefore, summary judgment is granted on plaintiffs’ trade dress infringement claim. C. Plaintiffs’ Claims for False Advertising Under the Lanham Act and New York General Business Law Brandwynne asserts that Combe Inc. misleads customers and causes consumer confusion by falsely describing its product and by misrepresenting the origin of its product. See Amended Compl. ¶¶ 86-90. Specifically, plaintiffs claim that the following assertions made by defendants in their advertising and product labeling are false: o that the product was “developed with women gynecologists”; o that Combe Inc. owns the trademark “intimate moisturizer”; o that the product formula is “unique”; o that it created the concept of non-greasy and natural vaginal moisturizer; and o that the product is “not like ordinary jelly, gels, and lubricants”. Id. at ¶ 89. These allegations also provide the basis for Count Eleven — that defendants’ false advertising violates New York General Business Law (the “G.B.L.”) § 349(a). See Amended Compl. ¶¶ 103-105. The heart of plaintiffs’ proof that defendants have misrepresented that their product was “developed" }, { "docid": "9462958", "title": "", "text": "or service, and not the general public. The Board did not err in so holding. Given this clarification of the proper relevant market for evaluating the fame of a mark, this court finds that there was sufficient factual evidence of fame within the market of purchasers of champagne and sparkling wine to support the Board’s conclusion. The record indicates that VCP’s sales, volume and advertising expenditures since 1990 have been substantial. VEUVE CLICQUOT, champagne is the second leading brand sold in the U.S. The brand is sold in 8,000 restaurants nationwide, and in liquor stores, wine shops, and other retail establishments. VCP advertises in general interest magazines such as Vanity Fair and in wine specialty magazines, radio ads, point-of-sale displays, through in-store and in-restaurant wine tastings and events, through sponsorship of events, and on its Internet site. VCP’s products have been featured in articles and reviews in both specialized and general interest magazines. According to an April 2001 issue of Wine and Spirits, VEUVE CLICQUOT was the most-ordered wine in the “sparkling wine” category of the 363 survey respondents. VCP’s products have also been featured in Business Week, American Way (in-flight magazine of American Airlines), The New York Times, the Boston Globe, Money magazine, and the Detroit News. Moreover, Palm Bay’s President, David Taub, admitted that the VEUVE CLICQUOT mark is famous. His later qualification that such fame was limited to the “top-end” segment of the market does not diminish the significance of his admission in view of the Board’s finding that high-end champagne and less-expensive sparkling wines are marketed in the same channels of trade to the same consumers. Finally, the Board noted that several WIPO domain name arbitration decisions had found VCP’s marks to be famous. While acknowledging Palm Bay’s argument that a mark must be famous among purchasers in the United States, whereas WIPO examined VCP’s marks worldwide, the Board properly noted that such evidence nonetheless provided a “confirmatory context” for VCP’s other evidence of fame. Considering this evidence in its totality and in context, this court finds that substantial evidence supports the Board’s finding of fame." }, { "docid": "155972", "title": "", "text": "1980. Nina Ricci also controls a retail boutique operating under the service mark NINA RICCI in Beverly Hills, California. This store offers a complete line of products including apparel, accessories and perfume under the NINA RICCI mark. ETF began selling VITTORIO RICCI shoes, belts, handbags and billfolds in 1975. While the name was fictitious when adopted, ETF’s president, Todd Finkel, changed his name to Todd Vittorio Ricci in 1977. ETF’s principal business has been in retail sales of shoes and belts at its New York City stores. In addition, ETF has sold its shoes through other retail stores (e.g., Saks Fifth Avenue and Neiman Marcus) where Nina Ricci has sold its goods as well. The Board noted from the depositions of ETF’s president that, at the time of the Board’s hearing, ETF was not selling blouses, sweaters, coats, jackets and pants. It concluded, however, that a prima facie case of abandonment of the VITTORIO RICCI mark for clothing as a result of non-use for more than two years prior to the filing of the opposition had not been established by Nina Ricci. B. In a prior proceeding between the same parties, ETF filed an application in 1975 to register the mark VITTORIO RIC-CI for sweaters, belts, neckties, shoes and women’s blouses, which Nina Ricci opposed (No. 58,461). The Board decided in favor of Nina Ricci. Nina Ricci, S.A.R.L. v. E.T.F. Enterprises, Inc., 203 USPQ 947 (TTAB 1979). Upon review, however, the district court reversed the decision of the Board and directed the Commissioner of Patents to allow registration of ETF’s VITTORIO RICCI trademark for shoes and belts. E.T.F. Enterprises, Inc. v. Nina Ricci, S.A.R.L., 523 F.Supp. 1147, 213 USPQ 517 (S.D.N.Y.1981). “[Gjiven the total absence of evidence regarding neckties, sweaters, and women’s blouses, the Court decline[d] to direct the Commissioner of Patents to allow registration of the ‘Vittorio Ricci’ mark for those products.” Id. at 1156, 213 USPQ at 525. II The only issue presented is whether ETF’s VITTORIO RICCI trademark, in relation to the goods and services for which registration is sought, so resembles Nina Ricci’s use of its" }, { "docid": "13149010", "title": "", "text": "mark. Id. Plaintiffs have only sold Very Private-Intimate Moisture in Colorado, California and Texas. Sales in 1998 were $100,000. See Pis.’ 56.1 ¶ 59. Brandwynne did not advertise until 1996. Subsequent advertising expenses were $11,336 in 1996, $52,875 in 1997 and $52,875 in 1998. See Pis.’ Response to Defs.’s Third Set of Interrogatories, Defs.’ 56.1, Ex. 79. D. Combe’s Commercialization of “VAGISIL® Intimate Moisturizer” As early as 1973, Combe Inc. began manufacturing and marketing a line of feminine hygiene products in the United States under the registered trademark VAGISIL®, including VAGISIL® medicated lotions, VAGISIL® medicated cremes, VAGISIL® cosmetic powder, VAGISIL® cosmetic deodorant sprays and washes, VAGISIL® vaginal suppositories and VAGISIL® lotions for feminine use. See Defs.’ 56.1, Exs. 80-85. In May 1993, five months before Brandwynne approached Combe with her concept, Cynthia D’Andrea-Herns, Combe’s feminine hygiene product expert, distributed to high level management at Combe Inc. and Com-be Int’l a memorandum which included a comprehensive overview of the market for products that alleviate vaginal dryness. See. Memorandum, May 7, 1993, Pis.’ 56.1, Ex. 6. D’Andrea-Herns’ scientific and market research indicated potential for future growth. While Johnson & Johnson marketed K-Y Jelly first as an aid to medical professionals and later as a sexual lubricant, two other manufacturers were producing and marketing “breakthrough” moisturizers much like Very Private.- Id. at 1127-28. D’Andrea-Herns noted that Warner-Lambert’s REPLENS® and Schering-Plough’s GYNE-MOISTRIN ® featured characteristics aimed at a new female market. Id. at 1129. In July 1995, twenty-two months after Brandwynne’s presentation, Combe Inc. began to test market a vaginal moisturizer called VAGISIL® intimate moisturizer. See Defs.’ 56.1 ¶ 61. The product, a clear, non-medicated liquid designed for digital application, was launched for national retail sales in April 1996. See id. at ¶¶ 61 & 62. The product is contained in a pearl-colored plastic bottle, designed to stand upright with the dispenser at the top. The bottle contains blue and purple lettering and a large stylized ‘V” in a blue box. The back of the bottle contains the following text: It’s like your own natural moisture is back — instantly. Unlike ordinary jelly, gels," }, { "docid": "155977", "title": "", "text": "203 USPQ 733, 735 (CCPA 1979). Indeed, the Board has previously recognized the practice in the fashion industry of referring to surnames alone. See Nina Ricci, S.A.R.L. v. Haymaker Sports, Inc., 134 USPQ 26, 28 (TTAB 1962); Polo Fashions, Inc. v. La Loren, Inc., 224 USPQ 509, 512 (TTAB 1984). Furthermore, the Board accorded little or no importance to the increasing sales in many lines under opposer’s marks since the date of the district court decision. See Kimberly-Clark Corp., 774 F.2d at 1146-47, 227 USPQ at 542. As this court said in Specialty Brands, Inc. v. Coffee Bean Distribs., Inc., 748 F.2d 669, 675, 223 USPQ 1281, 1284 (Fed.Cir.1984) (citations omitted): When an opposer’s trademark is a strong, famous mark, it can never be “of little consequence”. The fame of a trademark may affect the likelihood purchasers will be confused inasmuch as less care may be taken in purchasing a product under a famous name. These factors argue against according controlling weight to the differences in the marks based solely on the use by the parties of dissimilar first names. In addition, ETF argued and the Board noted that there have been no reported instances of actual confusion. The absence of any showing of actual confusion is of very little, if any, probative value here because (1) no evidence was presented as to the extent of ETF’s use of the VITTORIO RICCI mark on the merchandise in question in prior years, and (2) the Board specifically found that ETF was not selling such merchandise at the time of the opposition proceeding in its own stores or elsewhere. In reaching its conclusion, the Board acknowledged that it drew some guidance from the district court’s opinion concerning ETF’s 1975 trademark application. In that case, the court found that no likelihood of confusion existed only with respect to ETF’s shoes and belts, products on which the NINA RICCI mark had not been used. E.T.F. Enterprises, Inc, 523 F.Supp. at 1155, 213 USPQ at 524. Opposer no longer challenges ETF’s rights as to those goods but seeks to preclude a more expanded line of" }, { "docid": "16134115", "title": "", "text": "likelihood of confusion between marks that are used with goods that are not closely related, because- the fame of a mark may also affect the likelihood that consumers will be confused when purchasing these products. Indeed, it is precisely these circumstances which demand great vigilance on the part of a competitor who is approaching a famous mark, for, as the present case illustrates, the lure of undercutting or dis counting the fame of a mark is especially seductive. See Recot, slip op. at 19 (“It is applicant’s position that opposer’s marks are famous for a variety of human food products, but that the fame of opposer’s marks does not extend beyond that field.... ”). Accordingly, we hold that the fame of the mark must always be accorded full weight when determining the likelihood of confusion. When a famous mark is at issue, a competitor must pause to consider carefully whether the fame of the mark, accorded its full weight, casts a “long shadow which competitors must avoid.” Kenner Parker, 963 F.2d at 353, 22 USPQ2d at 1457; see also Nina Ricci S.A.R.L. v. E.T.F. Enters., 889 F.2d 1070, 1074, 12 USPQ2d 1901, 1904 (Fed.Cir.1989) (“There is no excuse for even approaching the well-known trademark of a competitor” (internal quotations omitted).). Although fame alone cannot overwhelm the other DuPont factors as a matter of law, see University of Notre Dame Du Lac v. J.C. Gourmet Food Imports Co., Inc., 703 F.2d 1372, 217 USPQ 505 (Fed.Cir.1983), fame deserves its full measure of weight in assessing likelihood of confusion. Because the Board erred when it discounted the fame of the FRITO-LAY mark, we vacate the Board’s decision, and remand for further consideration consistent with this decision. The Board also erred when it distinguished this court’s precedent on the ground that our prior cases concerned products that were identical or closely related. Indeed, this court and its predecessor court have consistently stated that fame of the mark is a dominant factor in the likelihood of confusion analysis for a famous mark, independent of the consideration of the relatedness of the goods. See, e.g.," }, { "docid": "6975744", "title": "", "text": "factors a court can consider in the fame analysis is whether the mark is registered on the principal register. See 15 U.S.C. § 1125(c)(2)(A)(iv). As Triumph points out, however, “[o]ne cannot logically infer fame from the fact that a mark is one of the millions on the Federal Register.” 4 McCarthy, § 24:106 at 24-310. While ownership of a trademark registration is relevant to the fame inquiry, and — to the extent the Board decision implies otherwise — the Board erred on this point, proof of registration is not conclusive evidence of fame. With respect to media attention, the Board found that CSI’s evidence fell short of showing “widespread recognition of op-poser’s mark [by] the general population.” Board Decision, 96 U.S.P.Q.2d at 1611. Specifically, the Board found that: the vast majority of unsolicited media recognition for opposer’s COACH mark comprises a reference to one of opposer’s products as one of many different fashion buys or trends, and the news articles noting opposer’s renown are too few to support a finding that opposer’s mark has been transformed into a household name. Id. On appeal, CSI argues that the Board ignored hundreds of unsolicited articles mentioning the COACH mark over the years. CSI points to several examples, including the following: • “In fact, Coach’s growth ... has been phenomenal. When Sara Lee acquired the firm in 1985, its volume was about $18 million. In Sara Lee’s latest fiscal year, which ended last June 30, Coach’s sales exceeded $500 million. The name also resonates with consumers. The brand ranked eighth among the top 10 in accessories firms in the latest Fairchild 100 consumer survey of fashion labels, in 1995.” J.A. 3607 (Women’s Wear Daily, May 5, 1997). • “Coach, one of the top makers of status handbags in the United States ...” J.A. 3598 (The New York Times, Jan. 27,1999). • “Coach’s creative director has helped transform the 60-year old company into a must-have American icon.” J.A. 3156 (Women’s Wear Daily, June 2001). • “Will Coach Become Too Popular? ... Coach, the maker and retailer of stylish handbags, just had a blowout season...." }, { "docid": "1288720", "title": "", "text": "heels of [a] very successful trademark.” Planters Nut & Chocolate Co. v. Crown Nut Co., 305 F.2d 916, 920, 134 USPQ 504, 508 (CCPA 1962). Recognizing the threat to famous marks from free riders, this court’s predecessor allowed “competitors [to] come closer” to a weak mark. Sure-Fit Prods., 254 F.2d at 160. A strong mark, on the other hand, casts a long shadow which competitors must avoid. See, e.g., Nina Ricci, 889 F.2d at 1074. Thus, the Lanham Act’s tolerance for similarity between competing marks varies inversely with the fame of the prior mark. As a mark’s fame increases, the Act’s tolerance for similarities in competing marks falls. For this reason, this court emphasizes: When an opposer’s trademark is a strong, famous mark, it can never be “of little consequence”. The fame of a trademark may affect the likelihood purchasers will be confused inasmuch as less care may be taken in purchasing a product under a famous name. Specialty Brands, 748 F.2d at 675; see also B.V.D. Licensing v. Body Action Design, 846 F.2d 727, 730, 6 USPQ2d 1719, 1722 (Fed.Cir.1988) (Nies, J., now C.J., dissenting) (“a purchaser is less likely to perceive differences from a famous mark.”) (emphasis in original). In accord with the same principles, this court states: [T]here is “no excuse for even approaching the well-known trademark of a competitor ... and that all doubt as to whether confusion, mistake, or deception is likely is to be resolved against the newcomer, especially where the established mark is one which is famous.... ” Nina Ricci, 889 F.2d at 1074 (quoting Planters Nut, 305 F.2d at 924-25). The Board erred in discounting the import of Kenner’s famous prior mark. The Board acknowledged “the renown of opposer’s mark with respect to modeling compound.” Indeed, Rose Art conceded this fame. Yet the Board treated that fame as a liability in assessing likelihood of confusion. Reasoning that consumers might more easily recognize variances from a famous mark, the Board concluded that the fame of Kenner’s mark permitted greater, rather than less, legal tolerance for similar marks. While scholars might debate as a" }, { "docid": "1288718", "title": "", "text": "for likelihood of confusion requires the Board and this court to consider evidence on a wide variety of factors. In re E.I. duPont deNemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567 (CCPA 1973). Specifically, this court considers the thirteen factors set forth in the duPont case. Id. As dictated by the evidence, different factors may play dominant roles in determining likelihood of confusion. Nina Ricci, S.A.R.L. v. E.T.F. Enters., 889 F.2d 1070, 1073, 12 USPQ2d 1901, 1903 (Fed.Cir.1989). II. The fifth duPont factor, fame of the prior mark, plays a dominant role in cases featuring a famous or strong mark. Famous or strong marks enjoy a wide latitude of legal protection. Sure-Fit Prods. Co. v. Saltzson Drapery Co., 254 F.2d 158, 160, 117 USPQ 295, 296 (CCPA 1958). This court’s predecessor stated: It seems both logical and obvious to us that where a party chooses a trademark which is inherently weak, he will not enjoy the wide latitude of protection afforded the owners of strong trademarks. Where a party uses a weak mark, his competitors may come closer to his mark than would be the case with a strong mark without violating his rights. Id. 254 F.2d at 160. Thus, a mark with extensive public recognition and renown deserves and receives more legal protection than an obscure or weak mark. Achieving fame for a mark in a marketplace where countless symbols clamor for public attention often requires a very distinct mark, enormous advertising investments, and a product of lasting value. After earning fame, a mark benefits not only its owner, but the consumers who rely on the symbol to identify the source of a desired product. Both the mark’s fame and the consumer’s trust in that symbol, however, are subject to exploitation by free riders. A competitor can quickly calculate the economic advantages of selling a similar product in an established market without advertising costs. These incentives encourage competitors to snuggle as close as possible to a famous mark. This court’s predecessor recognized that a mark’s fame creates an incentive for competitors “to tread closely on the" } ]

[ { "docid": "12449162", "title": "", "text": "Adjustment Board for a wage adjustment. If this be true, an issue we do not decide, plaintiff was also contractually obligated to include in the request a statement that the wage adjustment, if authorized, would be absorbed by the contractor and would not constitute a basis for a claim against the Government. The plaintiff refused to do this, and, we think, rightfully in the circumstances. When a contract provides a method for obtaining additional compensation for increased wages, and the contractor fails to pursue the required contractual remedy, it is precluded from •seeking relief in this court, Lustbader Construction Co. v. United States, 62 Ct. Cl. 549, 562-563. The rule is inapplicable to this case, however. The remedial provisions of the contract which defendant would require plaintiff to follow, -at the risk of being precluded from later litigation to recover increased labor costs seem to the court to be illusory. We hold that plaintiff is not precluded :from recovery in this suit by reason of its failure to make request to the Wage Adjustment Board for a wage adjustment. The next question is whether or not plaintiff has established its right to recover the increased cost. In conformity with the Davis-Baeon Act, supra, and Executive Order No. '9250, the advertised contract specifications advised prospective bidders that the successful bidder would be required to pay neither less nor more than the wage rates predetermined by the Secretary of Labor, to be the prevailing wage .rates on projects of a character similar in nature to the contract work in the pertinent locality, unless, of course, the •Secretary changed the rate. Prospective bidders were further advised that the prevailing wage rate for unskilled labor•ers, as determined by the Secretary of Labor, was 85 cents per hour. There is no dispute as to this fact. Before submitting its bid plaintiff investigated the labor situation in the Buffalo area, and determined to its satisfaction that there would be during the contract performance period an abundant supply of unskilled labor available in that area, and that the labor unions expected to be able to furnish the" } ]

[ { "docid": "1889440", "title": "", "text": "increase the wages of its laborers from the 65 cents per hour rate, fixed by the contract as the minimum wage, to the 80 cents per hour rate contained in a Wage Adjustment Board ruling issued during the performance of said contract purporting to cover all Federal Public Housing Authority projects in the area where the contractor’s work was proceeding. In that case defendant’s representa,-tive advised the contractor that failure to pay the adjusted wage rate was a noncompliance with the terms of the plaintiff’s contract, and that unless supplemental pay roll records should be submitted showing payment of the increased rate the noncompliance would be reported as such to the United States Department of Labor. We expressed the opinion that the project engineer’s statement to the contractor, that its failure to pay the 80 cents was a noncompliance with its contract, was erroneous; that the contract there considered required no more than that plaintiff pay a minimum of 65 cents an hour (there was no provision that the wages be computed at rates not less or more than those stated in the specifications subject to Executive Order 9250, such as we find in the present case) ; that the ruling of the Wage Board amounted to no more than permission to pay as much as 80 cents an hour; and that said ruling did not require the contractor to pay such higher rate. We concluded, however, that in view of certain provisions in the contract the contractor could not afford to ignore the demand made upon it that it pay the higher rate, and that the contractor having paid the increased wages as a result of this wrongful demand by defendant’s representative in charge of the work, defendant should pay the increased cost resulting therefrom. We reached this result on the.'basis of the principle herein-above discussed in connection with Le-Veque et al. v. United States, supra; United States v. Beuttas, supra; and York Engineering Co. v. United States, supra; notwithstanding in the Paretta case the contract requirement that the contractor pay not less than the wage rate stated in" }, { "docid": "11231159", "title": "", "text": "the increased rate approved by the Wage Adjustment Board and it asked the contracting agency for instructions. Plaintiff also advised the contracting officer that if it did have to pay the increased rates, it desired to make claim on the Government for additional compensation on account of such increases. On September 6,1944, defendant’s construction supervisor wrote to plaintiff advising that under the terms of paragraph 6 (d) (2) of the contract specifications, as amended, no claims for extra compensation could be based upon increased wages granted at the request of the contractor or the union. As to whether plaintiff could lawfully pay the increased rate, the letter contained the following statement: * * * the interim of [sic] decision [of the Wage Adjustment Board] has the force of law and it is the contractor’s authority for posting the changed wage rate. Plaintiff concedes that it could not have obtained the skilled laborers necessary to carry on the job without paying the increased rates authorized by the Wage Adjustment Board for carpenters, plasterers, and lathers, and also for numerous other trades which later obtained wage increases from the Board. Plaintiff’s requests for reimbursement for such increases were all denied by the contracting agency. Plaintiff contends that it is entitled to be reimbursed for the increased costs resulting from the wage increases authorized by the Wage Adjustment Board for several reasons. First, plaintiff urges that the letter of September 6, 1944, from defendant’s construction supervisor, amounted to a “directive order” from an authorized agent of defendant to plaintiff that the increases would have to be paid. Plaintiff concludes that it is accordingly entitled to recover the extra costs occasioned by its compliance with this directive order, on the authority of this court’s decisions in A. J. Paretta Contracting Co. v. United States, 109 C. Cls. 324, Sunswick Corp. v. United States, 109 C. Cls. 772, cert. den. 334 U. S. 827, and Poirier & McLane Corporation v. United States, 128 C. Cls. 117, 120 F. Supp. 209. The Poirier case is not apposite inasmuch as it did not involve a directive order" }, { "docid": "23597514", "title": "", "text": "in a Wage Adjustment Board ruling issued during the performance of said contract purporting to cover all Federal Public Housing Authority projects in the area where the contractor’s work was proceeding. In that case defendant’s representative advised the contractor that failure to pay the adjusted wage rate was a noncompliance with the terms of the plaintiff’s contract, and that unless supplemental pay l’oll records should be submitted showing payment of the increased rate the noncompliance would be reported as such to the United States Department of Labor. We expressed the opinion that the proj ect engineer’s statement to the contractor, that its failure to pay the 80 cents was a noncompliance with its contract, was erroneous; that the contract there considered required no more than that plaintiff pay a minimum of 65 cents an hour (there was no provision that the wages be computed at rates not less or more than those stated in the specifications subject to Executive Order 9250, such as we find in the present case) ; that the ruling of the Wage Board amounted to no more than permission to pay as much as 80 cents an hour; and that said ruling did not require the contractor to pay such higher rate. We concluded, however, that in view of certain provisions in the contract the contractor could not afford to ignore the demand made upon it that it pay the higher rate, and that the contractor having paid the increased wages as a result of this wrongful demand by defendant’s representaive in charge of the work, defendant should pay the increased cost resulting therefrom. We reached this result on the basis of the principle hereinabove discussed in connection with LeVeque et al. v. United States, supra, United States v. Beuttas, supra, and York Engineering Co. v. United States, supra; nothwithstanding in the Paretta case the contract requirement that the contractor pay not less than the wage rate stated in the specifications was not coupled with a provision for change of rate and adjustment of contract price by the contracting officer or any other .Government representative, and" }, { "docid": "13854256", "title": "", "text": "without qualification, plaintiffs assumed the risk of increased labor costs. On September 30,1944, plaintiffs appealed to the Secretary of War from the contracting officer’s decision, pursuant to Article 15 of the contract. On March 19, 1945, this appeal was denied on the grounds that the contract did not au thorize reimbursement for such increased costs; that the contract did not guarantee that laborers would work for the specified rate; that the Government’s action in authorizing the wage increase was merely an act in aid of the contractor; and that if plaintiffs were claiming that the 75-cent rate was a misrepresentation, the Board had no jurisdiction to give relief. Plaintiffs contend that they are entitled to recover the extra costs incurred by virtue of the above-mentioned wage adjustment under the holdings of this court in both the majority and concurring opinions in the case of Sunswick Corporation v. United States, 109 C. Cls. 772 (cert. den., 334 U. S. 827). While the facts alleged in plaintiffs’ petition and repeated in the briefs do appear to bring this case within the orbit of the Swnswick decision, the testimony and exhibits introduced by plaintiffs fail in material respects to establish such necessary facts. Both this case and the Swnswick case involved lump sum construction contracts in which the contractor was directed co pay all labor employed on the work at wage rates “not less or more than those stated in the specifications (subject to Executive Order Number 9250 and the General Orders and Regulations issued thereunder).” In both cases we found that General Order 13 issued pursuant to Executive Order 9250 provided that “The Wage Adjustment Board shall have power * * * (1) to hear and issue directive orders, in labor dispute cases, and (2) to make final rulings on voluntary wage and salary adjustments requiring the approval of the National War Labor Board.” In the Swnswick case plaintiff, prior to making its bid, investigated conditions at the site of the work including the labor situation and determined to its satisfaction that the rate for carpenters, among others, determined by the Secretary" }, { "docid": "11231160", "title": "", "text": "also for numerous other trades which later obtained wage increases from the Board. Plaintiff’s requests for reimbursement for such increases were all denied by the contracting agency. Plaintiff contends that it is entitled to be reimbursed for the increased costs resulting from the wage increases authorized by the Wage Adjustment Board for several reasons. First, plaintiff urges that the letter of September 6, 1944, from defendant’s construction supervisor, amounted to a “directive order” from an authorized agent of defendant to plaintiff that the increases would have to be paid. Plaintiff concludes that it is accordingly entitled to recover the extra costs occasioned by its compliance with this directive order, on the authority of this court’s decisions in A. J. Paretta Contracting Co. v. United States, 109 C. Cls. 324, Sunswick Corp. v. United States, 109 C. Cls. 772, cert. den. 334 U. S. 827, and Poirier & McLane Corporation v. United States, 128 C. Cls. 117, 120 F. Supp. 209. The Poirier case is not apposite inasmuch as it did not involve a directive order either on the part of the Wage Adjustment Board or the contracting agency, but rather a retroactive change by the Secretary of Labor in his earlier decision as to wage rates. The Sunswich case did involve a directive order issued by the Wage Adjustment Board in a wage dispute. In the instant case no such directive order was issued to plaintiff by the Board in connection with any of the increases in question. In the Paretta case defendant’s contracting officer issued an order to the contractor to pay an increased rate. In the instant case we do not think an order such as would create a liability on the defendant for the increased wages was issued to plaintiff. The letter of September 6, 1944, supra, on which plaintiff relies, was in ■response to plaintiff’s inquiry regarding the problem of whether or not it could lawfully pay the increased rate authorized by the Board for carpenters in the Baltimore area, in view of the fact that its contract provided that the only rates that could be" }, { "docid": "14922338", "title": "", "text": "to the union’s claims and issued a directive order to plaintiff directing it to pay all carpenters on the project $1.42% per hour retroactive to the beginning of the project. We held that plaintiff’s contract giving effect to the clauses with reference to Executive Order 9250, obligated plaintiff to pay its carpenters either the $1.25 per hour rate specified as both the minimum and maximum rate, or in the event of a labor dispute, such other rate as, under the machinery set up pursuant to Executive Order .9250, plaintiff might be directed to pay. We concluded that plaintiff was required to pay the increased wages ordered by the Wage Adjustment Board directive order or subject itself to the penalty of either having the unpaid difference withheld, or its contract terminated, and that the War Department (the contracting agency) had, by the terms of its contract, delegated to the Wage Adjustment Board authority to modify by directive order the specifications as to such rates. Thus it resulted that the Government, in its capacity as a contracting party, imposed on the plaintiff a burden of performance which it was not intended by the contract should be borne by plaintiff without an adjustment of the contract price. The facts in the present case do not bring the case within the holding of the Sunswick case. There was no labor dispute and no directive order in the instant case. Plaintiffs were perfectly willing to pay the increased rates and voluntarily requested permission of the Wage Adjustment Board for the payment of such higher rates. The resulting actions of the Wage Adjustment Board on the various applications of plaintiffs did not direct or require plaintiffs to do anything. They merely authorized plaintiffs to pay the rates as requested, not retroactively, but beginning the payroll period following the date of the decisions. Plaintiffs also placed some reliance on the case of Paretta Contracting Co. v. United States, 109 Ct.Cl. 324. That case involved a wrongful order by the contracting officer directed to the contractor to pay. increased rates. In that case we.held that the activating cause" }, { "docid": "1889439", "title": "", "text": "by the contracting officer, and that the contract price should be adjusted to compensate for any change he made. These provisions evidenced an intention in the contract to limit the risk which a contractor who agreed to pay “not less than” the specified minimum would otherwise be deemed to have undertaken with respect to increased wages. Though not within the exact letter of the provision excluding from the contractor’s undertaking the burden of increased rates ordered by the contracting officer the WPA wage increase fell within its intended scope, since it added a burden of performance of a type the contractor was not intended to have to bear without an adjustment of the contract price. The fact that the increase was effected by action of the WPA rather than by the contracting officer was considered to be of minor importance. In Paretta Contracting Co., Inc., v. United States, supra, we held that the plaintiff was entitled to recover its increased labor costs where defendant’s representative in charge of the work wrongfully induced the contractor to increase the wages of its laborers from the 65 cents per hour rate, fixed by the contract as the minimum wage, to the 80 cents per hour rate contained in a Wage Adjustment Board ruling issued during the performance of said contract purporting to cover all Federal Public Housing Authority projects in the area where the contractor’s work was proceeding. In that case defendant’s representa,-tive advised the contractor that failure to pay the adjusted wage rate was a noncompliance with the terms of the plaintiff’s contract, and that unless supplemental pay roll records should be submitted showing payment of the increased rate the noncompliance would be reported as such to the United States Department of Labor. We expressed the opinion that the project engineer’s statement to the contractor, that its failure to pay the 80 cents was a noncompliance with its contract, was erroneous; that the contract there considered required no more than that plaintiff pay a minimum of 65 cents an hour (there was no provision that the wages be computed at rates not" }, { "docid": "23597508", "title": "", "text": "the effect of increasing plaintiff’s costs over and above the amount contemplated when plaintiff submitted its bid . The question, whether the contract entered into by plaintiff with defendant acting through the War Department could properly be interpreted as obligating defendant to reimburse plaintiff for the increased labor costs which the Board of Contract Appeals concluded the Wage Adjustment Board of the Department of Labor had caused plaintiff to pay, was left unanswered. We are not certain that the War Department Board had clearly in mind the true issue in the case. We do not doubt, however, the soundness of the Board’s conclusion that the determination of plaintiff’s claim was essentially a matter for judicial determination. The issue to be decided is whether or not the Government, in its capacity as a contracting party, has imposed upon the plaintiff a burden of performance which it was not intended by the contract should be borne by plaintiff without an adjustment of the contract price. In a number of instances we have discussed the principle that it is an implied condition of every contract that neither party will hinder the other in his discharge of the obligations imposed upon him, nor increase his cost of performance. LeVeque et al. v. United States, 96 C. Cls. 250; B-W Construction Co. v. United States, 101 C. Cls. 748 (reversed, 824 U. S. 768); York Engineering Co. v. United States, 103 C. Cls. 613 (certiorari denied, 327 U. S. 784) ; Clemmer Construction Co. v. United States, 108 C. Cls. 718; Paretta Contracting Co. v. United States, No. 46395, 109 C. Cls. 324. Applicability of this principle in a given case depends upon not only the nature of the act which is alleged to have increased the burden of performance but as well upon the intention of the parties, with respect to such act, either expressed or implied in the contract. If the Government, having let a contract which fixed the minimum wages to be paid by the contractor on a certain project, thereafter sets a higher minimum wage level on a separate project at" }, { "docid": "18195784", "title": "", "text": "portion of the original contract. In support of its other contentions, plaintiffs rely upon this court’s decision in the case of Sunswick Corp. v. United States, 109 C. Cls. 712 (cert. den. 334 U. S. 827). The Sunswick case involved a lump sum construction contract in which the contractor was directed to pay all labor employed on the work at wage rates “not less or more than those stated in the specifications (subject to Executive Order Number 9250 and the General Orders and Regulations issued thereunder).” General Order No. 13, issued pursuant to Executive Order 9250, provided that “the Wage Adjustment Board shall have power * * * (1)' to hear and issue directive orders in labor dispute cases, and (2) to make final rulings on voluntary wage and salary adjustments requiring the approval of the National Wage Labor Board.” Prior to making its bid, the Sunswick Corporation investigated conditions at the site of the work and determined to its satisfaction that the wage rate for carpenters, among others, determined by the Secretary of Labor to be $1.25 per hour, was the prevailing rate for carpenters in the area. During the early part of the contract, plaintiff was able to hire carpenters at the $1.25 rate. During the third week of the contract, however, the local carpenters’ union informed plaintiff that the work being done by carpenters on the project was “waterfront work” which carried a rate of $1.4214 per hour. The union demanded that this higher rate be paid to all carpenters employed on the Sunswick project. Plaintiff at all times disputed the union’s contention and after the United States Conciliation Service had failed to settle the controversy, the Secretary of Labor certified the matter as a dispute case to the National War Labor Board which in turn referred the dispute to the Wage Adjustment Board pursuant to General Order No. 13 mentioned above. After a full hearing before a hearing officer, with representatives of the plaintiff, the union, and the contracting officer participating, the Wage Adjustment Board adopted the recommendations of the hearing officer which were favorable to" }, { "docid": "1889442", "title": "", "text": "the specifications was not coupled with a provision for change of rate and adjustment of contract price by the contracting officer or any other Government representative, and notwithstanding the declaration in the specifications that the specified rates were minimum rates only, and that the Government would not consider any claims for additional compensation made by the contractor because of payment by the contract- or of any wage rate in excess of the applicable rate contained therein. These contractual provisions fairly expressed under certain circumstances the intention of the parties that should the contractor find himself driven to the necessity of paying wages in excess of the minimum in order to obtain workmen he would have to absorb this additional cost of performance without looking to the defendant for additional compensation. But we did not feel that the intention so indicated in the contract could be expanded to encompass a situation where the primary cause of the contractor’s paying the increased wages was the Government’s demand upon it that it do so. Defendant’s position is (1) that the action of the Wage Adjustment Board furnishes no basis for recovery against defendant because the directive order of said Board did not in fact cause plaintiff to pay the increased wages, and even if such order should be deemed to have been the compelling cause of the increase in plaintiff’s cost of performance, the effect of the wage order cannot be attributed to the Government in its capacity as a contracting party, since the order issued as an act of the sovereign; (2) that no undertaking by defendant either express or implied is to be found in the contract for reimbursement of increased costs which plaintiff may incur as a result of giving full effect to the wage provisions of the contract, including the provision with reference to Executive Order No. 9250. These several contentions will be considered in the order stated. When, shortly after the work began, the carpenters’ union at the site of .plaintiff’s project demanded a higher wage rate than that set forth in the specifications, and plaintiff refused to" }, { "docid": "18195786", "title": "", "text": "the union’s claims and issued a directive order to plaintiff directing it to pay all carpenters on the project $1.42^4 per hour retroactive to the beginning of the project. We held that plaintiff’s contract, giving effect to the clauses with reference to Executive Order 9250, obligated plaintiff to pay its carpenters either the $1.25 per hour rate specified as both the minimum and maximum rate, or in the event of a labor dispute, such other rate as, under the machinery set up pursuant to Executive Order 9250, plaintiff might be directed to pay. We concluded that plaintiff was required to pay the increased wages ordered by the Wage Adjustment Board directive order or subject itself to the penalty of either having the unpaid difference withheld, or its contract termi nated, and that the War Department (the contracting agency) had, by the terms of its contract, delegated to the Wage Adjustment Board authority to modify by directive order the specifications as to such rates. Thus it resulted that the Government, in its capacity as a contracting party, imposed on the plaintiff a burden of performance which it was not intended by the contract should be borne by plaintiff without an adjustment of the contract price. The facts in the present case do not bring the case within the holding of the Sunswich case. There was no labor dispute and no directive order in the instant case. Plaintiffs were perfectly willing to pay the increased rates and voluntarily requested permission of the Wage Adjustment Board for the payment of such higher rates. The resulting actions of the Wage Adjustment Board on the various applications of plaintiffs did not direct or require plaintiffs to do anything. They merely authorized plaintiffs to pay the rates as requested, not retroactively, but beginning the payroll period following the date of the decisions. Plaintiffs also placed some reliance on the case of Paretta Contracting Co. v. United States, 109 C. Cls. 324. That case involved a wrongful order by the contracting officer directed to the contractor to pay increased rate's. In that case we held that the" }, { "docid": "4708554", "title": "", "text": "which later obtained wage increases from the Board. Plaintiff’s requests for reimbursement for such increases were all denied by the contracting agency. Plaintiff contends that it is entitled to be reimbursed for the increased costs resulting from the wage increases authorized by the Wage Adjustment Board for several reasons. First, plaintiff urges that the letter of September 6, 1944, from defendant’s construction supervis- or, amounted to a “directive order” from an authorized agent of defendant to plaintiff that the increases would have to be paid. Plaintiff concludes that it is accordingly entitled to recover the extra costs occasioned by its compliance with this directive order, on the authority of this court’s decisions in A. J. Paretta Contracting Co. v. United States, 109 Ct.Cl. 324, Sunswick Corp. v. United States, 75 F.Supp. 221, 109 Ct.Cl. 772, certiorari denied 334 U.S. 827, 68 S.Ct. 1337, 92 L.Ed. 1755, and Poirier & McLane Corporation v. United States, 120 F.Supp. 209, 128 Ct.Cl. 117. The Poirier case is not apposite inasmuch as it did not involve a directive order either on the part of the Wage Adjustment Board or the contracting agency, but rather a retroactive change by the Secretary of Labor in his earlier decision as to wage rates. The Sunswick case did involve a directive order issued by the Wage Adjustment Board in a wage dispute. In the instant case no such directive order was issued to plaintiff by the Board in connection with any of the increases in question. In the Paretta case defendant’s contracting officer issued an order to the contractor to pay an increased rate. In the instant case we do not think an order such as would create a liability on the defendant for the increased wages was issued to plaintiff. The letter of September 6, 1944, supra, on which plaintiff relies, was in response to plaintiff’s inquiry regarding the problem of whether or not it could lawfully pay the increased rate authorized by the Board for carpenters in the Baltimore area, in view of the fact that its contract provided that the only rates that could be" }, { "docid": "18195787", "title": "", "text": "party, imposed on the plaintiff a burden of performance which it was not intended by the contract should be borne by plaintiff without an adjustment of the contract price. The facts in the present case do not bring the case within the holding of the Sunswich case. There was no labor dispute and no directive order in the instant case. Plaintiffs were perfectly willing to pay the increased rates and voluntarily requested permission of the Wage Adjustment Board for the payment of such higher rates. The resulting actions of the Wage Adjustment Board on the various applications of plaintiffs did not direct or require plaintiffs to do anything. They merely authorized plaintiffs to pay the rates as requested, not retroactively, but beginning the payroll period following the date of the decisions. Plaintiffs also placed some reliance on the case of Paretta Contracting Co. v. United States, 109 C. Cls. 324. That case involved a wrongful order by the contracting officer directed to the contractor to pay increased rate's. In that case we held that the activating cause of plaintiff’s paying the increased rate was the Government’s demand that it do so and we accordingly allowed recovery. If the. contracting officer had not ordered plaintiff to pay the increased rate and plaintiff had merely followed the permissive ruling of the Wage Adjustment Board and voluntarily paid the rate, no ground for recovery would have existed. In the instant case plaintiffs were not ordered by the contracting agency to pay the increased rates authorized by the Wage Adjustment Board. It is true that plaintiffs may have been compelled by circumstances to pay the increased wages authorized by the Wage Adjustment Board but they were not so compelled by the Government in its capacity as a contractor, and. there is no provision in plaintiffs’ contract which requires the Government to reimburse plaintiffs for increased wages voluntarily paid by plaintiffs. On the contrary, plaintiffs? con tract specifically provided in paragraph 2-2 of the specifications that no increase in the contract price would be. allowed or authorized because of the payment of wage rates in" }, { "docid": "13854263", "title": "", "text": "burden in a manner which it was not intended by the contract should be borne by plaintiffs without an adjustment of the contract price. At the hearing in this case plaintiffs testified that they were familiar with the processes of the Wage Adjustment Board and knew that authorization was necessary before a higher wage rate might be paid. Presumably they knew that such permission was, in a proper case, granted. In the absence of a provision in the contract that the Government would make reimbursement for extra costs incurred by virtue of increased payments made pursuant to such authorizations, or a commitment on the part of the contracting officer that such reimbursement would be made, or, as in the case of the laborers in the Paretta case, a wrongful order by the contracting officer to pay such increased rate, we are unable to find any basis for holding plaintiffs entitled to recover its increased laborer costs. Plaintiffs next contend that in any event they are entitled to recover on the ground of misrepresentation, citing the concurring opinion in the Sunswick case and our decision in Albert & Harrison, Inc., v. United States, 107 C. Cls. 292. The concurring opinion in the Swnswick case is not necessarily the prevailing basis of that decision, but assuming it to be, the facts as proved in the instant case do not bring it within its terms nor within the scope of our decision in the Albert & Harrison case. In support of their argument on this point plaintiffs allege that the Secretary of Labor did not make a survey of the wage situation in the area prior to issuing the determination contained in the specifications as required by the Davis-Bacon Act; that the rate for building laborers in the area was not 75 cents per hour as evidenced by the statements of the Union and the War Manpower Commission; that 85 cents per hour was actually the prevailing rate for ing laborers in tbe area and had been paid by a cost-plus-a-fixed-fee contractor who was reimbursed by the Government for such cost; and that" }, { "docid": "14922339", "title": "", "text": "party, imposed on the plaintiff a burden of performance which it was not intended by the contract should be borne by plaintiff without an adjustment of the contract price. The facts in the present case do not bring the case within the holding of the Sunswick case. There was no labor dispute and no directive order in the instant case. Plaintiffs were perfectly willing to pay the increased rates and voluntarily requested permission of the Wage Adjustment Board for the payment of such higher rates. The resulting actions of the Wage Adjustment Board on the various applications of plaintiffs did not direct or require plaintiffs to do anything. They merely authorized plaintiffs to pay the rates as requested, not retroactively, but beginning the payroll period following the date of the decisions. Plaintiffs also placed some reliance on the case of Paretta Contracting Co. v. United States, 109 Ct.Cl. 324. That case involved a wrongful order by the contracting officer directed to the contractor to pay. increased rates. In that case we.held that the activating cause of plaintiff’s paying the increased rate was the Government’s demand that it do so and we accordingly allowed recovery. If the contracting officer had not ordered plaintiff to pay the increased rate and plaintiff had merely followed the permissive ruling of the Wage Adjustment Board and voluntarily paid the rate, no ground for recovery would have existed. In the instant case plaintiffs were not ordered by the contracting agency to pay the increased rates authorized by the Wage Adjustment Board. It is true that plaintiffs may have been compelled by circumstances to pay the increased wages authorized by the Wage Adjustment Board but they were not so compelled by the Government in its capacity as a contractor, and there is no provision in plaintiffs’ contract which requires the Government to reimburse plaintiffs for increased wages voluntarily paid by plaintiffs. On the contrary, plaintiffs’ contract specifically provided in paragraph 2-2 of the specifications that no increase in the contract price would be allowed or authorized because of the payment of wage rates in excess of those" }, { "docid": "18195783", "title": "", "text": "any purpose. Plaintiffs also point to the fact that following the authorization by the Wage Adjustment Board for the payment of the increased wages on this contract, plaintiffs were reimbursed for the increased price of the labor on all .work covered by change orders issued subsequent to the Wage Adjustment Board decisions. In this connection it should be noted that the Wage Adjustment Board had authorized the increases in connection with this contract for the payroll periods following the various dates on which the increased rates were authorized. As a result of the Wage Adjustment Board decisions, these increased rates became the prevailing rates for the various trades involved in the Denver area. The change orders involving additional work were, in effect, new contracts let to plaintiffs and it was perfectly proper for the Government to estimate the cost of those contracts on the basis of the then prevailing wage rates in the area. Such action was in no sense a recognition by defendant that it was obligated to pay increased rates on the unmodified portion of the original contract. In support of its other contentions, plaintiffs rely upon this court’s decision in the case of Sunswick Corp. v. United States, 109 C. Cls. 712 (cert. den. 334 U. S. 827). The Sunswick case involved a lump sum construction contract in which the contractor was directed to pay all labor employed on the work at wage rates “not less or more than those stated in the specifications (subject to Executive Order Number 9250 and the General Orders and Regulations issued thereunder).” General Order No. 13, issued pursuant to Executive Order 9250, provided that “the Wage Adjustment Board shall have power * * * (1)' to hear and issue directive orders in labor dispute cases, and (2) to make final rulings on voluntary wage and salary adjustments requiring the approval of the National Wage Labor Board.” Prior to making its bid, the Sunswick Corporation investigated conditions at the site of the work and determined to its satisfaction that the wage rate for carpenters, among others, determined by the Secretary of Labor" }, { "docid": "11463723", "title": "", "text": "the award of the contract to plaintiff, defendant entered into a number of lump-sum contracts in the immediate vicinity of plaintiff’s project, under which contracts wages were paid in excess of those which plaintiff had theretofore been required to pay. We said that when the defendant entered into its contract with plaintiff, it did not either expressly or impliedly stipulate that it would not thereafter enter into cost-plus contracts, and that it, indeed, had no power to do so. Hence, we concluded that the making of these contracts by the Government, even though they had the incidental effect of requiring plaintiff to pay its laborers increased wages, was not a violation of plaintiff’s contract. In KircKhof, et al. v. United States, 121 Ct. Cl. 476, plaintiffs’ fixed-price construction contract with the Government contained minimum wage rates determined by the Secretary of Labor under the Davis-Bacon Act. These rates were also maximum rates because they could not be increased without authorization from the War Labor Board. While con struction under plaintiffs’ contract was progressing, that Board authorized payment of labor on other projects in plaintiffs’ area at rates higher than the rates specified in plaintiffs’ contract. To prevent their workers from leaving to work on these other projects, plaintiffs sought, and obtained, permission from the Board to increase their wage rates to the wage level prevailing on the other projects. Plaintiffs contended that the actions of the Wage Adjustment Board in increasing rates on non-federal work (which forced plaintiffs to pay higher rates to keep the job going) constituted a breach of the implied contractual condition that defendant would not hinder plaintiffs in their discharge of the contract. Of this we said, at page 491: It is true that plaintiffs may have been compelled by circumstances to pay the increased wages authorized by the Wage Adjustment Board but they were not so compelled by the Government in its capacity as a contractor, and there is no provision in plaintiffs’ contract which requires the Government to reimburse plaintiffs for increased wages voluntarily paid by plaintiffs * * *. We conclude that when" }, { "docid": "3495789", "title": "", "text": "F.Supp. 407, 103 Ct.Cl. 607. In that case the plaintiff claimed reimbursement for increased wages which it was required to pay by reason of the fact that immediately after the award of the contract to plaintiff, defendant entered into a number of lump-sum contracts in the immediate vicinity of plaintiff’s project, under which contracts wages were paid in excess of those which plaintiff had theretofore been required to pay. We said that when the defendant entered into its contract with plaintiff, it did not either expressly or impliedly stipulate that it would not thereafter enter into cost-plus ■ contracts, and that it, indeed, had no power to do so. Hence, we concluded that the making of these contracts by the Government, even though they had the incidental effect of requiring plaintiff to pay its laborers increased wages, was not a violation of plaintiff’s contract. In Kirchhof et al. v. United States, 102 F.Supp. 770, 121 Ct.Cl. 476, plaintiffs’ fixed-price construction contract with the Government contained minimum wage rates determined by the Secretary of Labor under the Davis-Bacon Act. These rates were also maximum rates because they could not be increased without authorization from the War Labor Board. While construction under plaintiffs’ contract was progressing, that Board authorized payment of labor on other projects in plaintiffs’ area at rates higher than the rates specified in plaintiffs’ contract. To prevent their workers from leaving to work on these other projects, plaintiffs sought, and obtained, permission from the Board to increase their wage rates to the wage level prevailing on the other projects. Plaintiffs contended that the actions of the Wage Adjustment Board in increasing rates on non-federal work (which forced plaintiffs to pay higher rates to keep the job going) constituted a breach of the implied contractual condition that defendant would not hinder plaintiffs in their discharge of the contract. Of this we said, 102 F.Supp. at page 774, 121 Ct.Cl. at page 491: “It is true that plaintiffs may have been compelled by circumstances to pay the increased wages authorized by the Wage Adjustment Board but they were not so compelled" }, { "docid": "13854262", "title": "", "text": "one from the War Manpower Commission relative to shipyard industrial rates. The decision of the Board did not direct plaintiffs to do anything; it merely authorized plaintiffs to pay the higher rate, but on this job alone, and as of the date of the Board’s decision, not retroactively. Contrary to plaintiff’s allegations, this was not a directive order. The decision of the Board was made pursuant to General Order 13 providing that the “Wage Adjustment Board shall have power * * * (2) to make final rulings on voluntary wage and salary adjustments requiring the approval of the National War Labor Board.” [Italics supplied.] If it be said that the Wage Adjustment Board, by the terms of the contract, acted for the War Department under delegated authority in issuing this decision, it did no more than waive the requirement that plaintiffs pay no more than the rate specified in the contract. In so doing it cannot be said that the Government in its capacity as contractor acted in such a way as to increase plaintiffs’ burden in a manner which it was not intended by the contract should be borne by plaintiffs without an adjustment of the contract price. At the hearing in this case plaintiffs testified that they were familiar with the processes of the Wage Adjustment Board and knew that authorization was necessary before a higher wage rate might be paid. Presumably they knew that such permission was, in a proper case, granted. In the absence of a provision in the contract that the Government would make reimbursement for extra costs incurred by virtue of increased payments made pursuant to such authorizations, or a commitment on the part of the contracting officer that such reimbursement would be made, or, as in the case of the laborers in the Paretta case, a wrongful order by the contracting officer to pay such increased rate, we are unable to find any basis for holding plaintiffs entitled to recover its increased laborer costs. Plaintiffs next contend that in any event they are entitled to recover on the ground of misrepresentation, citing the" }, { "docid": "19740202", "title": "", "text": "to the Wage Adjustment Board for a wage adjustment. If this be true, an issue we do not decide, plaintiff was also contractually obligated to include in the request a statement that the wage adjustment, if authorized, would be absorbed by the contractor and would not constitute a basis for a claim against the Government. The plaintiff refused to do this, and, we think, rightfully in the circumstances. When a contract provides a method for obtaining additional compensation for increased wages, and the contractor fails to pursue the required contractual remedy, it is precluded from seeking relief in this court, Lustbader Construction Co. v. United States, 62 C. Cls. 549, 562-563. The rule is inapplicable to this case, however. The remedial provisions of the contract which defendant would require plaintiff to. follow, at the risk of being precluded from later litigation to recover increased labor costs, seem to the court to be illusory. We hold that plaintiff is not precluded from recovery in this-suit by reason of its failure to make request to the Wage Adjustment Board for a wage adjustment. The next question is whether or not plaintiff has established its right to r ecover the increased cost. In conformity with the Davis-Bacon Act, supra, and Executive Order No. 9250, the advertised contract specifications advised prospective bidders that the successful bidder would be required to pay neither less nor more than the wage rates predetermined by the Secretary of Labor, to be the prevail- , ing wage rates on projects of a character similar in nature to the contract work in the pertinent locality, unless, of course, the Secretary changed the rate. Prospective bidders were-further advised that the prevailing wage rate for unskilled laborers, as determined by the Secretary of Labor, was 85-cents per hour. There is no dispute as to this fact. Before submitting its bid plaintiff investigated the labor-situation in the Buffalo area, and determined to its satisfaction that there would be during the contract performance-period an abundant supply of unskilled labor available in that area, and that the labor unions expected to be able to- furnish" } ]

[ { "docid": "12763108", "title": "", "text": "As we have previously discussed, the Commission’s motion here is not connected with the grand jury investigation, but rather constitutes an independent matter. B. Applicability of F.R.Crim.P. 6(e) In order to accept the argument of Rittenhouse and Severance that Rule 6(e) applies to forbid disclosure of the requested documents, it would be necessary to conclude that the Rule prevents disclosure, for any purpose, of documents once they are subpoenaed by a grand jury. We cannot so conclude, however, because the policy of secrecy is not absolute. United States v. Stanford, 589 F.2d 285, 291 (7th Cir. 1978), cert. denied 440 U.S. 983, 99 S.Ct. 1794, 60 L.Ed.2d 244 (1974). Rule 6(e) shields solely “matters occurring before the grand jury.” It is designed to protect from disclosure only the essence of what takes place in the grand jury room, in order to preserve the freedom and integrity of the deliberative process. See, e. g., United States v. Proctor & Gamble, 356 U.S. 677, 681, 78 S.Ct. 983, 985, 2 L.Ed.2d 1077 (1958); United States v. Rose, 215 F.2d 617, 628-29 (3d Cir. 1954). The Rule is not intended “to foreclose from all future revelation to proper authorities the same information or documents which were presented to the grand jury.” United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960). The mere fact that a particular document is reviewed by a grand jury does not convert it into a “matter occurring before the grand jury” within the meaning of 6(e). Documents such as the business records sought by the Commission here are created for purposes independent of grand jury investigations, and such records have many legitimate uses unrelated to the substance of the grand jury proceedings. See United States v. Stanford, supra, at 291. As the Second Circuit stated in United States v. Interstate Dress Carriers, supra, while granting the request of the Interstate Commerce Commission for disclosure of a trucking company’s records in the custody of a grand jury: [W]hen testimony or data is sought for its own sake-for its intrinsic value in the furtherance of a" } ]

[ { "docid": "3727648", "title": "", "text": "v. McDowell, 888 F.2d 285, 289 (3d Cir.1989); accord Eisenberg, 773 F.Supp. at 707. This general rule of grand jury secrecy is codified in Rule 6(e) of the Federal Rules of Criminal Procedure. United States v. Johns, 858 F.2d 154, 158 (3d Cir.1988). “Rule 6(e) applies not only to information drawn from transcripts of grand jury proceedings, but also to anything which may reveal what occurred before the grand jury.” In re Grand Jury Matter, 682 F.2d 61, 63 (3d Cir.1982); see also Fund for Constitutional Gov’t v. National Archives & Records Serv., 656 F.2d 856, 869 (D.C.Cir.1981) (The scope of grand jury secrecy encompasses anything “which would reveal ‘the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the. deliberations or questions of the jurors, and the like.’ ”) (quoting SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C.Cir.), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980)); accord, Eisenberg, 773 F.Supp. at 707. The secrecy of grand jury proceedings is not absolute. Rule 6(e)(3)(C)(i) authorizes disclosure by court order. The party moving for court-ordered disclosure bears a heavy burden of proving to the court that “the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979) (footnote omitted). Before disclosure of the grand jury transcripts, which would corroborate the Defendants’ arguments can be ordered, the Defendants must offer evidence of a “substantial likelihood of gross or prejudicial irregularities in the conduct of the grand jury.” United States v. Budzanoski, 462 F.2d 443, 454 (3d Cir.) (citing United States v. Politi, 334 F.Supp. 1318, 1322 (S.D.N.Y.1971); United States v. Dioguardi, 332 F.Supp. 7, 20 (S.D.N.Y.1971)), cert. denied, 409 U.S. 949, 93 S.Ct. 271, 34 L.Ed.2d 220 (1972). Only after the Defendants have met this burden does a court balance the" }, { "docid": "51599", "title": "", "text": "the Government explained that, as provided in the Redacted Superseding Indictment and discovery, “the confidential informant involved in the investigation of this case was [Sabol].” Government Brief at 63. Pursuant to the Government’s representation, Giampa’s motion to disclose the identity of confidential informants was denied as moot. N. Access to Grand Jury Materials Giampa and Vittorio requested disclosure of grand jury materials in the instant case. Giampa Brief at 29-32; Vittorio Brief at 7-9. Disclosure of grand jury material is contrary to the “long established policy that maintains the secrecy of grand jury proceedings in the [F]ederal courts.” United States v. Sells Engineering, Inc., 463 U.S. 418, 424, 103 S.Ct. 3133, 3138, 77 L.Ed.2d 743 (1983) (quoting United States v. Procter & Gamble Co., 356 U.S. 677, 681, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958)); In re Grand Jury Investigation, 903 F.2d 180, 182 (3d Cir.1990); Eisenberg, 773 F.Supp. at 707. This general rule of grand jury secrecy is codified in Rule 6(e) of the Federal Rules of Criminal Procedure. Rule 6(e) applies “not only to information drawn from transcripts of grand jury proceedings, but also to anything which may reveal what occurred before the grand jury.” In re Grand Jury Matter, 682 F.2d 61, 63 (3d Cir.1982); see Fund for Constitutional Gov’t v. National Archives & Records Serv., 656 F.2d 856, 869 (D.C.Cir.1981) (scope of grand jury secrecy encompasses anything which would reveal “the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of the jurors, and the like”) (quoting SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C.Cir.), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980)). The secrecy of grand jury proceedings is not absolute. Grand Jury Investigation, 903 F.2d at 182. Rule 6(e)(3)(C) authorizes disclosure by court order and states, in pertinent part: Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made — (i) when so directed by a court preliminarily to or in connection with a judicial proceeding; [or] (ii) when" }, { "docid": "23668199", "title": "", "text": "F.2d 202, 213 (5th Cir. 1980). Rule 6(e) of the Federal Rules of Criminal Procedure is intended to preserve this norm of secrecy by preventing the disclosure of matters occurring before a grand jury. See Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 398-99, 79 S.Ct. 1237, 1240, 3 L.Ed.2d 1323 (1959). The policy of secrecy is “designed to protect from disclosure only the essence of what takes place in the grand jury room, in order to preserve the freedom and integrity of the deliberative process.” In re Grand Jury Investigation, 630 F.2d 996, 1000 (3d Cir. 1980), cert. denied, 449 U.S. 1081, 101 S.Ct. 865, 66 L.Ed.2d 805 (1981). Two consequences follow. On the one hand, Rule 6(e) applies not only to information drawn from transcripts of grand jury proceedings, but also to anything which may reveal what occurred before the grand jury. See, e.g., In re Grand Jury Investigations, 610 F.2d 202, 21&-17 (5th Cir. 1980). Both the direct and indirect disclosure of information are proscribed. On the other hand, grand jury secrecy does not “foreclose from all future revelations to proper authorities the same information or documents which were presented to the grand jury.” United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960). See also, SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1382 (D.C.Cir.), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980). Secrecy is not absolute, and Rule 6(e) has built-in exceptions, one of which, Rule 6(e)(3)(C)(i), lifts the veil of secrecy where disclosure of grand jury transcripts and evidence is “directed by a court preliminary to or in connection with a judicial proceeding.” Fed.R.Crim.P. 6(e)(3)(C)(i); see Douglas Oil Co., supra, 441 U.S. at 220-21, 99 S.Ct. at 1673-74; see also, In re Grand Jury Proceedings, 654 F.2d 268, 271-75 (3d Cir.), cert. denied, U.S. -, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981). In balancing the secrecy requirement with the need for grand jury transcripts, the Supreme Court has stated: Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek" }, { "docid": "13016799", "title": "", "text": "custody of the documents to release those records so that defendants could comply with their discovery obligations in the federal civil proceeding. Such an order would be within the power of the federal district court. See, e.g., Karlsson v. Wolfson, 18 F.R.D. 474 (D.Minn.1956). Both federal and Colorado law appear to allow a party’s business records held by a grand jury to be withdrawn either upon the consent of the documents’ owner or pursuant to a court order after the grand jury has completed its work. See, e.g., United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir.1960); Granbery v. District Court, 187 Colo. 316, 531 P.2d 390, 394 (1975). Another judicially accepted procedure, which we consider less desirable, is for the party seeking the documents related to a grand jury investigation to apply directly to the court with custody of the documents. See, e.g.. In re Grand Jury Matter, 697 F.2d 511, 512 (3d Cir.1982); In re Grand Jury Investigation, 630 F.2d 996 (3d Cir. 1980), cert. denied, 449 U.S. 1081, 101 S.Ct. 865, 66 L.Ed.2d 805 (1981). Such a direct application for documents should be granted if the records sought are not of the type properly considered confidential grand jury materials. Even if they are part of confidential grand jury materials they might be reachable as explained below. Although a court might deny access on another ground, we have little doubt that if the documents sought in the instant case were held by a federal district court in connection with a federal grand jury investigation, the courts would rule that these documents, required to be kept by the defendants in the normal course of their business, are not privileged grand jury materials. Fed.R.Crim.P. 6(e) addresses the maintenance of secrecy of federal grand jury proceedings. The rule is intended to protect only against disclosures “of what is said or what takes place in the grand jury room.” United States v. Interstate Dress Carriers, Inc., 280 F.2d at 54. Although documents may come within the proscription against disclosure, “it is not the purpose of the Rule to" }, { "docid": "14833470", "title": "", "text": "the Douglas Oil, supra, requirements have not been met. Thus the transcripts and witness interviews cannot be divulged, disclosed or given to the Department. On the other hand, the question of whether disclosure of the audit workpapers should be ordered, requires an examination of this court’s authorities dealing with the conditions under which such disclosures may be made. In In re Grand Jury Matter, 630 F.2d 996 (3d Cir.1980) (SCI) the New Jersey State Commission of Investigation (SCI) subpoenaed the records of two corporations. Many of the records sought were in the possession of a federal grand jury. The corporations claimed that they could not comply with the subpoena as to those business records in the possession of the grand jury. The SCI thereupon moved before the district court to obtain these records. The district court held that SCI had failed to make the showing of “particular need” or “compelling necessity” required to overcome Rule 6(e)’s policy of secrecy. On appeal, this court vacated the district court’s order and remanded the proceeding to the district court, because the record did not contain the business records in question. On remand, the district court was directed to evaluate whether disclosure of the business records would reveal the content of the grand jury proceedings. In remanding, Judge Adams, writing for the panel said that Rule 6(e) was designed to “protect from disclosure only the essence of what takes place in the grand jury room, in order to preserve the freedom and integrity of the deliberative process.” Id., 630 F.2d at 1000. The court also noted that mere review of a particular document by the grand jury does not automatically convert that document into a “matter occurring before the grand jury.” Id. “Documents such as the business records sought by [SCI] ... are created for purposes independent of grand jury investigations, and such records may have legitimate uses unrelated to the substance of the grand jury proceedings.” Id. The court concluded that once the inquiring party demonstrated a legitimate purpose flowing from its investigatory authority, access to the records could only be refused if" }, { "docid": "2553564", "title": "", "text": "Inc., 463 U.S. 418, 424, 103 S.Ct. 3133, 3138, 77 L.Ed.2d 743 (1983) (quoting United States v. Proctor & Gamble Co., 356 U.S. 677, 681, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958)). This general rule of grand jury secrecy is codified in Rule 6(e) of the Federal Rules of Criminal Procedure. Rule 6(e) applies “not only to information drawn from transcripts of grand jury proceedings, but also to anything which may reveal what occurred before the grand jury.” In re Grand Jury Matter, 682 F.2d 61, 63 (3d Cir.1982); see Fund for Constitutional Gov’t v. National Archives & Records Serv., 656 F.2d 856, 869 (D.C.Cir.1981) (scope of grand jury secrecy encompasses anything which would reveal “the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of the jurors, and the like.”) (quoting SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C.Cir.), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980)). The secrecy of grand jury proceedings is not absolute. Rule 6(e)(3)(C)(i) authorizes disclosure by court order. The party moving for court-ordered disclosure bears a heavy burden of proving to the court that “the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979) (footnote omitted). Before disclosure of the grand jury transcripts which would corroborate the Defendants’ arguments can be ordered, Defendants must offer evidence of a “substantial likelihood of gross or prejudicial irregularities in the conduct of the grand jury.” United States v. Budzanoski, 462 F.2d 443, 454 (3d Cir.) (citing United States v. Politi, 334 F.Supp. 1318, 1322 (S.D.N.Y.1971); United States v. Dioguardi, 332 F.Supp. 7, 20 (S.D.N.Y.1971)), cert. denied, 409 U.S. 949, 93 S.Ct. 271, 34 L.Ed.2d 220 (1972). Only after the Defendants have met this burden does a court balance the need" }, { "docid": "5803495", "title": "", "text": "warrants. Rule 6(e)(2) prohibits the disclosure of “matters occurring before the grand jury.” Therefore, the critical question before us is whether the materials obtained by the two search warrants are “matters occurring before a grand jury” and, accordingly, entitled to the secrecy protection of Rule 6(e)(2). We hold that they are not. While recognizing that the records and materials of cemeteries A and B were obtained by search warrant, appellants contend that since there was an ongoing grand jury investigation the documents are effectively grand jury material. They correctly point out that Bowe, the IRS intelligence agent directing the criminal investigation, was assisting the United States Attorney in the grand jury investigation and that grand jury subpoenas were effected for the same records and materials that were obtained by the search warrants. Although presenting a close question, we cannot agree that the circumstances surrounding the seizure of the corporate records and materials compel the conclusion that the IRS investigation and the grand jury investigation were integrated. The substantive content of “matters occurring before the grand jury” can be anything that may reveal what has transpired before the grand jury. In re Grand Jury Matter (Catania), 682 F.2d 61, 63 (3d Cir.1982); In re Grand Jury Investigation, 610 F.2d 202, 216-17 (5th Cir.1980). However, Rule 6(e)(2) protects from disclosure “only the essence of what takes place in the grand jury room, in order to preserve the freedom and integrity of the deliberative process.” Catania, 682 F.2d at 63. At least two of our sister circuits have held that information produced by criminal investigations paralleling grand jury investigations does not constitute matters “occurring before the grand jury” if the parallel investigation was truly independent of the grand jury proceedings. Catania, supra; Anaya v. United States, 815 F.2d 1373 (10th Cir.1987). In Catania, the United States Attorney’s Office and the Federal Bureau of Investigation conducted an investigation into possible voter fraud. A federal grand jury was convened, but no indictment resulted. Afterwards, the United States Attorney sought authorization, pursuant to a grand jury request, to make available to a state prosecuting attorney information" }, { "docid": "14452031", "title": "", "text": "overemphasized that the purpose for grand jury secrecy is to protect the sanctity of the proceeding and to protect the participants from detrimental publicity. United States v. Manglitz, 773 F.2d 1463 (4th Cir.1985). Rule 6(e) is not intended to deter the government from a legitimate investigation, so long as that investigation does not reveal what took place in the grand jury room. With understanding of that purpose, a definition of material protected by the rule becomes much easier. It is clear from the record that none of the material examined by the IRS was itself presented to the grand jury. Nevertheless, the taxpayers argue that the material was so closely related to what was presented that it must fall within the shadow of 6(e). Citing SEC v. Dresser Industries, Inc., 628 F.2d 1368 (D.C.Cir.), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980); Fund for Constitutional Government v. National Archives, 656 F.2d 856 (D.C.Cir.1981); and In re Sealed Case, 801 F.2d 1379 (D.C.Cir.1986), they contend that disclosure of any information which would reveal the identities of witnesses, the substance of their testimony, the strategy of the investigation, and the deliberations of the grand jury would violate the rule. Our examination of these cases leads us to a different conclusion. While we do not quarrel with either the reasoning or the conclusions expressed in them, we do not believe they are applicable in this instance. Both Fund and Sealed Case involve the request for disclosure under Rule 6(e)(3)(C)(i) of material which had actually been considered by a grand jury. In Fund, there was a request under the Freedom of Information Act to release the names of grand jury witnesses; quotes or summaries of grand jury testimony; evaluations of testimony; discussions of the “scope, focus, and direction of the grand jury investigations”; identification of documents considered, and conclusions reached, by the grand jury. Fund, 656 F.2d at 869. The court held disclosure of this material was . properly denied because it would have revealed matters occurring before the grand jury. Id. In Sealed Case, the government sought disclosure under" }, { "docid": "10484178", "title": "", "text": "freedom and integrity of the grand jury process by keeping secret what occurs, or anything that may reveal what occurs, before a grand jury. United States v. Smith, 787 F.2d 111 (3d Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986); In re Grand Jury Matter, 682 F.2d 61 (3d Cir.1982) (“Catania”). As recently stated by one court, It cannot be overemphasized that the purpose for grand jury secrecy is to protect the sanctity of the proceeding and to protect participants from detrimental publicity.... Rule 6(e) is not intended to deter the government from a legitimate investigation so long as that investigation does not reveal what took place in the grand jury room. Anaya v. United States, 815 F.2d 1373, 1378-79 (10th Cir.1987). With this purpose in mind, courts have concluded that records subpoenaed by a grand jury do not fall within the coverage of rule 6(e) where they have independent signficance, are sought for their own sake rather than to learn what took place before the grand jury, and where their release will not compromise grand jury secrecy. Anaya, supra; In re Grand Jury Matter, 630 F.2d 996 (3d Cir.1980) (“SCI”), cert. denied, 449 U.S. 1081, 101 S.Ct. 865, 66 L.Ed.2d 805 (1981). In SCI, the Third Circuit held that disclosure of documents created for purposes independent of grand jury investigations that do not jeopardize grand jury secrecy are not governed by rule 6(e). This would include summaries of business records made by government agents. Id. See also In re Grand Jury Matter, 697 F.2d 511, 516 (3d Cir.1982) (“Garden Court”) (Garth, J. concurring). Here, the disclosures to Acme were not of “matters occurring before the grand jury.” First, the grand jury did not hear testimony until November, 1985. The government supplied Acme with the challenged items between January and March of 1985 and therefore could not have revealed what had actually transpired before the grand jury. Secondly, the materials provided to Acme, a list of vendors, several checks, and summaries of payments to Pak-All, Alma, and Garo, were obtained from legitimate business records that" }, { "docid": "11946643", "title": "", "text": "such records demonstrably reveal the ■internal workings of the grand jury. Disclosure of such materials would compromise the “purpose of Rule 6(e) [] to ‘protect from disclosure only the essence of what takes place in the grand jury room, in order or preserve the freedom and integrity of the deliberative process.’” Fleet Nat’l. Bank v. Exp.-Imp. Bank of the U.S., 612 F.Supp. 859, 868 (D.D.C.1985) (quoting In re Grand Jury Investigation (N.J. State Comm’n of Investigation), 630 F.2d 996, 1000 (3d Cir.1980)). In evaluating whether disclosure of a particular document reveals the inner workings of the grand jury, at least in the context of a party seeking disclosure under the Freedom of Information Act (“FOIA”), the D.C. Circuit has instructed that the government “bears the burden of demonstrating some nexus between disclosure and revelation of a protected aspect of the grand jury’s investigation.” CREW, 746 F.3d at 1100 (internal quotations and citations omitted); see also Lopez, 393 F.3d at 1351 (noting key finding that “there is a nexus between disclosure of the information and revelation of the grand jury’s strategy or direction in the past”). Conversely, when a party, such as the plaintiff here, contends that documents are covered by grand jury secrecy, the plaintiff bears the burden of showing the same nexus to revelation of the grand jury’s internal proceedings. A myriad of factors may be probative in this analysis, including markings linking the document to grand jury proceedings and the circumstances under which the document was created, used, or requested. Even if the purpose for the creation of the document was for presentation to a grand jury, however, the document may nonetheless fall outside the protection of Rule 6(e), if that purpose is not discernible from the document itself or other contextual information. In short, there must be “a nexus between disclosure of the information and revelation of the grand jury’s strategy or direction in the past.” Lopez, 393 F.3d at 1351. Then-Judge Ginsburg’s decision in SoCPR is illustrative of this point. In that case, the Senate of Puerto Rico made a “FOIA request to DOJ seeking information" }, { "docid": "22960227", "title": "", "text": "what is said or takes place in the grand jury room ... it is not the purpose of the Rule to foreclose from all future revelation to proper authorities the same information or documents which were- presented to the grand jury.” United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir.1960). Thus, if a document is sought for its own sake rather than to learn what took place before the grand jury, and if its disclosure will not compromise the integrity of the grand jury process, Rule 6(e) does not prohibit its release. Id. See also DiLeo v. Commissioner, 969 F.2d 16 (2d Cir.) (reaffirming Interstate Dress’s status as the law of the circuit), cert. denied, — U.S. -, 113 S.Ct. 197, 121 L.Ed.2d 140 (1992). When the grand jury investigation is already terminated and an indictment has been issued, only “institutional” concerns are implicated by the documentary disclosure. See generally Nervi, FRCrP 6(e) and the Disclosure of Documents Reviewed by a Grand Jury, 57 U.Chi.L.Rev. 221, 230 (1990). The fear of compromising future grand jury proceedings is further reduced when the request is for business records created for purposes independent of grand jury investigations-, which have legitimate uses unrelated to the substance of the grand jury proceedings. In re Grand Jury Investigation, 630 F.2d 996, 1000 (3d Cir.1980), cert. denied, 449 U.S. 1081, 101 S.Ct. 866, 66 L.Ed.2d 805 (1981); SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1382 (D.C.Cir.) (en banc), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980). In sum, we think that the disclosure of business records independently generated and sought for legitimate purposes, would not “seriously compromise the secrecy of the grand jury’s deliberations.” DiLeo, 959 F.2d at 19 (quoting In re Special March 1981 Grand Jury (Almond Pharmacy), 753 F.2d 575, 578 (7th Cir.1985)). Various different tests have been utilized by other circuits. See generally, Nervi, FRCrP and Disclosure of Documents; In re Grand Jury Proceedings, 851 F.2d at 860 (recognizing four approaches, citing In re John Doe Grand Jury Proceedings, 537 F.Supp. 1038 (D.R.I.1982), and creating" }, { "docid": "11946642", "title": "", "text": "(D.C.Cir.2014) (CREW) (“ ‘[Tjhere is no per se rule against disclosure of any and all information which has reached the grand jury chambers,’ let alone any and all information which ‘could’ reach the grand jury” (quoting Lopez v. Dep’t of Justice, 393 F.3d 1345, 1349 (D.C.Cir.2005) (citations omitted)). Rather, the test for application of Rule 6(e) is met only when the documents themselves or the context in which they are described, relayed or communicated indicates that they were a focus of grand jury attention and, thereby, “reveal some secret aspect of the grand jury’s investigation.” Lopez, 393 F.3d at 1349. As the D.C. Circuit explained, “[t]he disclosure of information ‘coincidently before the grand jury [which can] be revealed in such a manner that its revelation would not elucidate the inner workings of the grand jury’ is not prohibited.” SoCPR, 823 F.2d at 582 (quoting Fund for Constitutional Gov’t, 656 F.2d at 870). Thus, for example, a grand jury transcript or a grand jury subpoena would fall squarely within the protection ■ of Rule 6(e), since such records demonstrably reveal the ■internal workings of the grand jury. Disclosure of such materials would compromise the “purpose of Rule 6(e) [] to ‘protect from disclosure only the essence of what takes place in the grand jury room, in order or preserve the freedom and integrity of the deliberative process.’” Fleet Nat’l. Bank v. Exp.-Imp. Bank of the U.S., 612 F.Supp. 859, 868 (D.D.C.1985) (quoting In re Grand Jury Investigation (N.J. State Comm’n of Investigation), 630 F.2d 996, 1000 (3d Cir.1980)). In evaluating whether disclosure of a particular document reveals the inner workings of the grand jury, at least in the context of a party seeking disclosure under the Freedom of Information Act (“FOIA”), the D.C. Circuit has instructed that the government “bears the burden of demonstrating some nexus between disclosure and revelation of a protected aspect of the grand jury’s investigation.” CREW, 746 F.3d at 1100 (internal quotations and citations omitted); see also Lopez, 393 F.3d at 1351 (noting key finding that “there is a nexus between disclosure of the information and revelation" }, { "docid": "12273709", "title": "", "text": "jury.” The exception to the rule of secrecy, Rule 6(e)(8), and the sealing requirement, Rule 6(e)(6), also pertain only to “matters occurring before the grand jury.” We must be wary, however, of an overly strict construction of what matters actually “occur[ ] before the grand jury,” as it has been correctly held that some non-substantive incidents of grand jury proceedings must be kept secret. For instance, although criminal defendants generally have the right to inspect jury selection records under 28 U.S.C. § 1867(f) (1982), they are not normally entitled to the names of the members of the grand juries that indicted them. See United States v. McLernon, 746 F.2d 1098, 1122-23 (6th Cir.1984); United States v. Carlock, 606 F.Supp. 491, 492-93 (W.D.La.1985); United States v. Vaughn, 510 F.Supp. 206, 209-10 (D.N.J.1981). Obviously, the disclosure of the names and addresses of the grand jurors could facilitate intimidation of or retaliation against those grand jurors. We explicated the theory behind the Rule 6 secrecy doctrine in In re Grand Jury Investigation (Appeal of New Jersey State Commission of Investigation), 630 F.2d 996 (3d Cir.1980), cert. denied sub nom. Rittenhouse Consulting Enterprises Ltd. v. New Jersey State Commission of Investigation, 449 U.S. 1081, 101 S.Ct. 865, 66 L.Ed.2d 805 (1981): [T]he policy of secrecy is not absolute. Rule 6(e) shields solely ‘matters occurring before the grand jury.’ It is designed to protect from disclosure only the essence of what takes place in the grand jury room, in order to preserve the freedom and integrity of the deliberative process. 630 F.2d at 1000 (citations omitted). We note, in light of that standard, that disclosure of the commencement and termination dates of the grand jury does not disclose the essence of what took place in the grand jury room. Additionally, disclosure of such information does not violate the freedom and integrity of the deliberative process of the grand jurors. Furthermore, American courts have long recognized a general right of access to court records. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). In Nixon, the court found the interest" }, { "docid": "13835877", "title": "", "text": "practice that permit attorneys to challenge subpoenas after their issuance and service. Likewise, the Eastern District’s amendment to R.Civ.P. 14(IV)(B) reaffirmed the propriety of moving to quash illegitimate subpoenas. This language suggests that the judges of those Courts considered Rule 3.10 to be redundant with their procedures at best and inconsistent with them at worst. See Dep. of M. Kunz, Nov. 6, 1990, at 30-31 (Def. Mem., Dec. 17, 1990, Ex. A); Dep. of Hon. D. Ziegler, Nov. 13, 1990, at 17-18, 25 (Def.Mem., Dec. 17, 1990, Ex. E); see also In re Grand Jury Subpoena Served Upon Doe, 781 F.2d 238, 250 n. 7 (2d Cir.) (in banc), cert. denied, 475 U.S. 1108, 106 S.Ct. 1515, 89 L.Ed.2d 914 (1986). It further betrays the fair amount of irony embedded in the Disciplinary Board’s position. The defendant contends, correctly enough, that the exemptions are invalid for lack of appropriate notice and opportunity to comment. Yet it goes on to argue that as a consequence the district courts have adopted the more imposing and far-reaching alteration of practice represented by Rule 3.10, even though that too was done without notice or comment in the district courts and even though those amendments simply endeavored to state expressly what is implicit in the local rules and in the Federal Rules of Criminal Procedure. Third, engrafting Rule 3.10 onto the three district courts’ local disciplinary rules would place them in conflict with Federal Rule of Criminal Procedure 6(e), as supplemented by local rules calculated to protect the secrecy of grand jury proceedings. E.D.Pa.R.Crim.P. 4 & 12; M.D.Pa.R. 117 & 120; W.D.Pa.R. 32. Rule 6(e) generally prohibits disclosure of “matters occurring before the grand jury.” See In re Grand Jury Investigation (DiLoreto), 903 F.2d 180, 181-82 (3d Cir.1990); In re Grand Jury Matter (Catania), 682 F.2d 61, 63-64 (3d Cir.1982); In re Grand Jury Investigation (Appeal of New Jersey State Comm’n of Investigation), 630 F.2d 996, 1000 (3d Cir.1980), cert. denied sub nom. Ritten-house Consulting Enter. Ltd. v. New Jersey State Comm’n of Investigation, 449 U.S. 1081, 101 S.Ct. 865, 66 L.Ed.2d 805 (1981). This" }, { "docid": "22960228", "title": "", "text": "compromising future grand jury proceedings is further reduced when the request is for business records created for purposes independent of grand jury investigations-, which have legitimate uses unrelated to the substance of the grand jury proceedings. In re Grand Jury Investigation, 630 F.2d 996, 1000 (3d Cir.1980), cert. denied, 449 U.S. 1081, 101 S.Ct. 866, 66 L.Ed.2d 805 (1981); SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1382 (D.C.Cir.) (en banc), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980). In sum, we think that the disclosure of business records independently generated and sought for legitimate purposes, would not “seriously compromise the secrecy of the grand jury’s deliberations.” DiLeo, 959 F.2d at 19 (quoting In re Special March 1981 Grand Jury (Almond Pharmacy), 753 F.2d 575, 578 (7th Cir.1985)). Various different tests have been utilized by other circuits. See generally, Nervi, FRCrP and Disclosure of Documents; In re Grand Jury Proceedings, 851 F.2d at 860 (recognizing four approaches, citing In re John Doe Grand Jury Proceedings, 537 F.Supp. 1038 (D.R.I.1982), and creating a fifth approach). In re John Doe Grand Jury Proceedings, 537 F.Supp. 1038 (D.R.I.1982) (classifying four distinct approaches). The per se approach, which never classifies documents as “matters occurring before the grand jury,” see, e.g., United States v. Weinstein, 511 F.2d 622, 627 n. 5 (2d Cir.) (“[i]n any event it is questionable whether Rule 6(e) applies to documents”), cert. denied, 422 U.S. 1042, 95 S.Ct. 2655, 45 L.Ed.2d 693 (1975); In re Grand Jury Investigation of Ven-Fuel, 441 F.Supp. 1299, 1303 (M.D.Fla.1977) (“it is doubtful whether mere documentary information was ever included within the scope of Rule 6(e)”), and the opposite per se approach, which treats documents as always protected from, disclosure under Rule 6(e), see, e.g., Texas v. United States Steel, 546 F.2d 626 (5th Cir.), cert. denied, 434 U.S. 889, 98 S.Ct. 262, 54 L.Ed.2d 174 (1977); In re Grand Jury Proceedings (Kluger), 827 F.2d 868 (2d Cir.1987); see also In re Grand Jury Matter (Garden Court), 697 F.2d 511, 512 (3rd Cir.1982) (dicta) (“[wjere we writing on a clean slate, we" }, { "docid": "12273710", "title": "", "text": "of Investigation), 630 F.2d 996 (3d Cir.1980), cert. denied sub nom. Rittenhouse Consulting Enterprises Ltd. v. New Jersey State Commission of Investigation, 449 U.S. 1081, 101 S.Ct. 865, 66 L.Ed.2d 805 (1981): [T]he policy of secrecy is not absolute. Rule 6(e) shields solely ‘matters occurring before the grand jury.’ It is designed to protect from disclosure only the essence of what takes place in the grand jury room, in order to preserve the freedom and integrity of the deliberative process. 630 F.2d at 1000 (citations omitted). We note, in light of that standard, that disclosure of the commencement and termination dates of the grand jury does not disclose the essence of what took place in the grand jury room. Additionally, disclosure of such information does not violate the freedom and integrity of the deliberative process of the grand jurors. Furthermore, American courts have long recognized a general right of access to court records. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). In Nixon, the court found the interest necessary to support the access right in, inter alia, “the citizen’s desire to keep a watchful eye on the workings of public agencies.” Id. 98 S.Ct. at 1312. Appellant, who is incarcerated as the result of the grand jury’s process, has more than the citizen’s right to seek the grand jury’s termination date. Cf. In re Special Grand Jury (for Anchorage, Alaska), 674 F.2d 778 (9th Cir.1982) (movants, as members of general public as well as subjects of grand jury investigation, had standing to seek access to ministerial records of grand jury). B. The government’s argument for non-disclosure is that: The disclosure of information on the term of [a] grand jury may tend to indicate the target date for an indictment and therefore the probable length of the investigation. Such information may facilitate the escape of prospective defendants and efforts to frustrate or to interfere with the investigation. A target or a witness under his influence may be quite willing to resist grand jury subpoenas or to withhold evidence if he knows that, if he" }, { "docid": "23668198", "title": "", "text": "not permitted in camera. The district court, on January 20, 1982 denied Catania’s petition to vacate. The court held that the materials turned over on December 7, 1981 were not matters occurring before the grand jury and hence were properly disclosed. The court also allowed the District Attorney to obtain transcripts of grand jury witness testimony pursuant to Rule 6(e)(3)(C)(i) of the Federal Rules of Criminal Procedure because the state investigation was preliminary to a judicial proceeding and because the District Attorney had established a “particularized need” for those transcripts. The witness transcripts were provided to the District Attorney on January 25, 1982. Catania has appealed to this court. We affirm the district court’s order as it pertains to the December 7,1981 disclosure, but reverse as to the disclosure of grand jury transcripts. It is settled federal policy that the grand jury system requires secrecy of grand jury proceedings. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19, 99 S.Ct. 1667, 1672-73, 60 L.Ed.2d 156 (1979); In re Grand Jury Investigation, 610 F.2d 202, 213 (5th Cir. 1980). Rule 6(e) of the Federal Rules of Criminal Procedure is intended to preserve this norm of secrecy by preventing the disclosure of matters occurring before a grand jury. See Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 398-99, 79 S.Ct. 1237, 1240, 3 L.Ed.2d 1323 (1959). The policy of secrecy is “designed to protect from disclosure only the essence of what takes place in the grand jury room, in order to preserve the freedom and integrity of the deliberative process.” In re Grand Jury Investigation, 630 F.2d 996, 1000 (3d Cir. 1980), cert. denied, 449 U.S. 1081, 101 S.Ct. 865, 66 L.Ed.2d 805 (1981). Two consequences follow. On the one hand, Rule 6(e) applies not only to information drawn from transcripts of grand jury proceedings, but also to anything which may reveal what occurred before the grand jury. See, e.g., In re Grand Jury Investigations, 610 F.2d 202, 21&-17 (5th Cir. 1980). Both the direct and indirect disclosure of information are proscribed. On the other hand, grand" }, { "docid": "13835878", "title": "", "text": "of practice represented by Rule 3.10, even though that too was done without notice or comment in the district courts and even though those amendments simply endeavored to state expressly what is implicit in the local rules and in the Federal Rules of Criminal Procedure. Third, engrafting Rule 3.10 onto the three district courts’ local disciplinary rules would place them in conflict with Federal Rule of Criminal Procedure 6(e), as supplemented by local rules calculated to protect the secrecy of grand jury proceedings. E.D.Pa.R.Crim.P. 4 & 12; M.D.Pa.R. 117 & 120; W.D.Pa.R. 32. Rule 6(e) generally prohibits disclosure of “matters occurring before the grand jury.” See In re Grand Jury Investigation (DiLoreto), 903 F.2d 180, 181-82 (3d Cir.1990); In re Grand Jury Matter (Catania), 682 F.2d 61, 63-64 (3d Cir.1982); In re Grand Jury Investigation (Appeal of New Jersey State Comm’n of Investigation), 630 F.2d 996, 1000 (3d Cir.1980), cert. denied sub nom. Ritten-house Consulting Enter. Ltd. v. New Jersey State Comm’n of Investigation, 449 U.S. 1081, 101 S.Ct. 865, 66 L.Ed.2d 805 (1981). This policy of secrecy, which is “older than our Nation itself,” Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323 (1959), and which is integral to maintaining “the proper functioning of our grand jury system,” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218, 99 S.Ct. 1667, 1672, 60 L.Ed.2d 156 (1979), is not to be abridged lightly. “In the absence of a clear indication in a statute or Rule, we must always be reluctant to conclude that a breach of [grand jury] secrecy has been authorized.” United States v. Sells Eng’g, Inc., 463 U.S. 418, 425, 103 S.Ct. 3133, 3138, 77 L.Ed.2d 743 (1983). Accord Illinois v. Abbott & Associates, Inc., 460 U.S. 557, 572, 103 S.Ct. 1356, 1364, 75 L.Ed.2d 281 (1983) (“Congress, of course, has the power to modify the rule of secrecy by changing the showing of need required for particular categories of litigants. But the rule is so important, and so deeply-rooted in our traditions, that we will not infer" }, { "docid": "12273708", "title": "", "text": "government therefore moved for a Rule to Show Cause why he should not be held in contempt. Appellant waived a hearing and informed the court (through counsel) that he had no intention of answering questions. The court thereupon found appellant in contempt of court and remanded him to the custody of the United States Marshal until such time as he should purge himself of the contempt by agreeing to answer questions, or eighteen months, or the remaining life of the grand jury, whichever was least. Appellant has been in various local jails since that time. On October 6, 1989, appellant moved for disclosure of the commencement and termination dates of the grand jury. The district court, on February 8, 1990, denied the motion without opinion. This appeal followed. II. A. Federal Rule of Criminal Procedure 6(e), which codifies the longstanding policy of secrecy surrounding federal grand jury proceedings, obviously constrains the right of public access to grand jury records. More particularly, Rule 6(e)(2) imposes a rule prohibiting disclosure of “matters oc curring before the grand jury.” The exception to the rule of secrecy, Rule 6(e)(8), and the sealing requirement, Rule 6(e)(6), also pertain only to “matters occurring before the grand jury.” We must be wary, however, of an overly strict construction of what matters actually “occur[ ] before the grand jury,” as it has been correctly held that some non-substantive incidents of grand jury proceedings must be kept secret. For instance, although criminal defendants generally have the right to inspect jury selection records under 28 U.S.C. § 1867(f) (1982), they are not normally entitled to the names of the members of the grand juries that indicted them. See United States v. McLernon, 746 F.2d 1098, 1122-23 (6th Cir.1984); United States v. Carlock, 606 F.Supp. 491, 492-93 (W.D.La.1985); United States v. Vaughn, 510 F.Supp. 206, 209-10 (D.N.J.1981). Obviously, the disclosure of the names and addresses of the grand jurors could facilitate intimidation of or retaliation against those grand jurors. We explicated the theory behind the Rule 6 secrecy doctrine in In re Grand Jury Investigation (Appeal of New Jersey State Commission" }, { "docid": "13016800", "title": "", "text": "101 S.Ct. 865, 66 L.Ed.2d 805 (1981). Such a direct application for documents should be granted if the records sought are not of the type properly considered confidential grand jury materials. Even if they are part of confidential grand jury materials they might be reachable as explained below. Although a court might deny access on another ground, we have little doubt that if the documents sought in the instant case were held by a federal district court in connection with a federal grand jury investigation, the courts would rule that these documents, required to be kept by the defendants in the normal course of their business, are not privileged grand jury materials. Fed.R.Crim.P. 6(e) addresses the maintenance of secrecy of federal grand jury proceedings. The rule is intended to protect only against disclosures “of what is said or what takes place in the grand jury room.” United States v. Interstate Dress Carriers, Inc., 280 F.2d at 54. Although documents may come within the proscription against disclosure, “it is not the purpose of the Rule to foreclose from all future revelation to proper authorities the same information or documents which were presented to the grand jury. Thus, when testimony or data is sought for its own sake — for its intrinsic value in the furtherance of a lawful investigation — rather than to learn what took place before the grand jury, it is not a valid defense to disclosure that the same information was revealed to a grand jury or that the same documents had been, or were presently being, examined by a grand jury.” Id.; accord In re Grand Jury Investigation, 630 F.2d at 1000-01; SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1382-83 (D.C.Cir.) (en banc), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980); In re Grand Jury Impanelled October 2, 1978, 510 F.Supp. 112, 114-15 (D.D.C.1981); Capitol Indemnity Corp. v. First Minnesota Construction Co., 405 F.Supp. 929, 930-31 (D.Mass.1975). Thus, the Internal Revenue Service is not foreclosed from examining necessary records to determine the tax liability of a taxpayer merely because those records are" } ]

[ { "docid": "18711839", "title": "", "text": "weeks of severance pay. DX 1, ¶ 11; attachment 1 thereto; plaintiff dep. at 116. Two other part-time employees, non-disabled, who had exceeded 1,040 hours, Gwendolyn Woods and Toni Walker, were laid off in February 1992. DX 1, ¶ 13; DX 3, ¶5. In addition, the U.S. Department of Education, Office for Civil Rights, investigated plaintiffs complaints and concluded the evidence did not support his allegation (DX 5). Summary judgment is appropriate where the entire record “shows that there are no genuine issues as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c) Non-moving parties may rest neither upon the mere allegations of their pleadings nor upon general allegations that issues of fact may exist. See Bryant v. Commonwealth of Kentucky, 490 F.2d 1273 (6th Cir.1974). Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986), holds that: ... Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. The evidence need not be in a form admissible at trial in order to avoid summary judgment, but Rule 56(e) requires the opposing party to go beyond the pleadings and by [his] own affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate “specific facts showing that there is a genuine issue for trial.” Id. at 324, 106 S.Ct. at 2553. The Sixth Circuit in Street v. J.C. Bradford & Co., 886 F.2d 1472 (6th Cir.1989), has interpreted Celotex and two related cases, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and Matsushita Electric Industrial Co., Ltd. v. Zenith Radio, 415 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), as establishing a “new era” of favorable regard for summary judgment motions. Street, at 1479-80, sets forth ten “new era” principles: 1." } ]

[ { "docid": "1423950", "title": "", "text": "such a release.” 42 U.S.C. § 9607(a). By its Motion for Summary Judgment, the United States seeks to have an order entered granting it a partial summary judgment finding defendants Northernaire, Garwood and Meyer jointly and severally liable, under the provisions of Section 9607(a), for the costs which the United States incurred in its cleanup of hazardous substances and contaminated soil found at the Northernaire facility. On a motion for summary judgment, movant bears the burden of showing conclusively that no genuine issue of material fact exists. Smith v. Hudson, 600 F.2d 60 (6th Cir.); Tee-Pak, Inc. v. St. Regis Paper Co., 491 F.2d 1193 (6th Cir.1974). Fed.R.Civ.P. 56(a). In determining whether issues of fact exist, “the inferences to be drawn from the underlying facts contained in [the affidavits, attached exhibits and depositions] must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). A court may not resolve disputed questions of fact in a summary judgment decision, and if a disputed question of fact remains, the district court should deny the motion, and proceed to trial. United States v. Articles of Device, 527 F.2d 1008, 1011 (6th Cir.1976). “[W]here the movant brings forward and supports his motion for summary judgment, his opponent may not rest merely upon his pleadings, but rather must come forward to show genuine issues of fact. Mere conclusory and unsupported allegations, rooted in speculation do not meet that burden.” Bryant v. Commonwealth of Kentucky, 490 F.2d 1273, 1274 (6th Cir.1974). In order to establish a prima facie case of liability the government must prove four things: (1) that the Northernaire site is a “facility” as that term is defined in 42 U.S.C. § 9601(9); (2) that a “release” or “threatened release” of a “hazardous substance” from the Northernaire site has occurred; (3) that the release or threatened release has caused the United States to incur “response costs;” and (4) that each of the defendants is a “person” as that term is defined in 42 U.S.C." }, { "docid": "13211699", "title": "", "text": "for: wrongful discharge in violation of Ohio public policy; age discrimination in violation of Ohio Revised Code § 4112.02 and Ohio public policy; sex discrimination in violation of Ohio Revised Code § 4112.02 and Ohio public policy; intentional infliction of emotional distress; violation of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”); breach of contract; and disability discrimination in violation of Ohio Revised Code § 4112.02. She also made a claim against Lobzun for intentional infliction of emotional distress. After the close of discovery, the defendants moved for summary judgment. Langley filed her own motion for partial summary judgment. The district court granted the defendants’ motions, denied Langley’s motion, and entered judgment in favor of the defendants on all counts. II A. Fed.R.Civ.P. 56 We review de novo the district court’s grant of summary judgment. Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 619 (6th Cir.2006). Summary judgment is justified “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). We consider the evidence and draw all reasonable inferences in favor of Langley as the nonmoving party. Mahon v. Crowell, 295 F.3d 585, 588 (6th Cir.2002). To survive summary judgment, she must provide evidence beyond the pleadings setting “forth specific facts showing that there is a genuine issue for trial.” Fed.R.CivJP. 56(e). B. Langley’s DAP Claim Langley asserted an ERISA claim for benefits under the company’s DAP. ERISA provides an eligible employee the right to bring a cause of action against a plan administrator, but only for violating a plan governed by that statute. See 29 U.S.C. § 1132(a)(1)(B). The district court concluded that DaimlerChrysler’s DAP was not an ERISA plan, but rather a payroll practice, even though the company’s summary plan description (“SPD”) included statements from which an employee might conclude the company represented the DAP to be covered by ERISA. Langley argues that the" }, { "docid": "14167266", "title": "", "text": "denied a white employee the opportunity to attend a seminar due to lack of funds, and that Ruby was offered an opportunity later in the year to attend a seminar on satanism, but he declined to attend. Second, Springfield suspended Ruby on September 30, 1992, for three days without pay for making sarcastic comments directed at a white female coworker, and for glaring hostilely at her, which violated Springfield’s policy of maintaining a work environment free from harassment. Third, Springfield terminated Ruby on March 15, 1993, for filing false mileage reimbursement reports for work-related travel, which Springfield had confirmed by monitoring buildings that Ruby claimed to have visited, but had not. After filing a series of complaints with the Equal Employment Opportunity Commission (EEOC), Ruby brought two suits in district court against Springfield under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §~ 2000e-2000e---5, and the Civil Rights Act of 1866, 42 U.S.C. § 1981, alleging employment discrimination and retaliation, which were consolidated by the district court. The district court granted Springfield's summary judgment motion, concluding that, even if Ruby had made a prima facie case of discrimination, Springfield had provided nondiscriminatory reasons for its adverse actions against Ruby, and that Ruby had failed to come forward with any evidence to support a finding that Springfield's reasons were pre-textual. II. We review a grant of summary judgment de novo. Tindle v. Caudell, 56 F.3d 966, 969 (8th Cir.1995). A grant of summary judgment is proper if, taking all facts and reasonable inferences from facts in the light most favoraNe to the nonmo'ving party, there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Id.; see Fed.R.Civ.P. 56(c). While a defendant who moves for summary judgment has the burden of showing that there is no genuine issue of fact for trial, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986), a nonmoving party may not rest upon mere denials or allegations in the pleadings, but must set forth specific facts" }, { "docid": "18679984", "title": "", "text": "material facts as to which the moving party contends there is no genuine issue ... including with that statement references to the affidavits, parts of the record and other supporting materials relied upon to support such statement. Failure to submit such a statement constitutes grounds for denial of the motion. In the present case, the Court finds that the plaintiffs motion for summary judgment and supporting memorandum and his reply memorandum do not meet the requirement of Rule 12(e). The memoran-da outline the procedural history of plaintiffs administrative complaint and refers to evidence from the FAA records discussed above in statistical support of his reverse discrimination argument. They do not contain any affidavits from plaintiff or others in support of his reverse discrimination claim. It is clear that nothing contained in plaintiffs memoranda approaches the type of statement contemplated by Rule 12(e). In fact, plaintiff attempts in his reply memorandum to argue the specific facts contained in defendant’s response memorandum. Therefore, since plaintiff failed to submit a statement complying with Rule 12(e), his motion for summary judgment is denied in accordance with the Rule. 2. Defendant’s Motion for Summary Judgment Defendant Secretary Dole argues that plaintiff Powers cannot prove that he received treatment which differed from that of others who were similarly situated or that, if different treatment existed, it was not based on his race and/or sex. Defendant concludes that Powers cannot make out a prima facie case in order to get him past a motion for summary judgment. Plaintiff counters with statistical evidence gleaned from FAA records. He offers no affidavit in support of his discrimination allegations. To create a question of fact, an adverse party responding to a properly made and supported summary judgment motion must set forth specific facts showing that there is a genuine issue for trial. Rule 56(e), Fed.R.Civ.P.; Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.1983). A party may not rest on mere allegations or denials of his pleadings; similarly, a bare contention that an issue of fact exists is insufficient to raise a factual issue. Id. Rule 56 of the" }, { "docid": "3587383", "title": "", "text": "MEMORANDUM OPINION DAVIS, District Judge. I. INTRODUCTION Plaintiff, Jeanne Brookhart Reece, alleging that she was denied pay equal to that of similarly situated males in violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (“EPA”), that she was constructively discharged in violation of state common law, and that she suffered disparate treatment based on sex in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5 (“Title VII”), instituted this action against defendant, Martin Marietta Technologies, Inc., (“Martin Marietta”). Presently before this Court is defendant’s Motion for Summary Judgment on the EPA and Title VII claims. The parties have fully briefed the issues presented, and the Court held a hearing on the motion on December 8, 1995. For the reasons set forth herein, the Court shall grant defendant’s motion as to all remaining claims. II. SUMMARY JUDGMENT A party moving for summary judgment is entitled to a grant of summary judgment only if no issues of material fact remain for the trier of fact to determine at trial. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir.1991). A fact is material for purposes of summary judgment, if when applied to the substantive law, it affects the outcome of the litigation. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Mere speculation by the non-movant cannot stave off a properly supported motion for summary judgment. See Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985). “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed. R.Civ.P. 56(e). See Celotex Corp. v. Catrett, 477" }, { "docid": "22261444", "title": "", "text": "year in regard to [her] classroom reassignment and personal life.” J.A. at 183. Finally, the evaluation implied that a contract renewal would be forthcoming for the following year, concluding: “Your class of 2nd grade students is well managed and respectful. I would expect continued growth for the 1996-97 school year.” J.A. at 183. On October 11,1996, Cline filed a charge of discrimination with the Equal Employment Opportunity Commission. The EEOC issued a Notice of Right to Sue, and on June 17, 1997, Cline filed her complaint in the district court claiming illegal sex and pregnancy discrimination under Title VII, 42 U.S.C. § 2000e et seq., and Chapter 4112 of the Ohio Revised Code. She also brought claims for breach of contract and promissory estoppel. On January 30, 1998, defendants filed their Motion for Summary Judgment. Finding that Cline had failed to make out a prima facie case of discrimination, the court granted summary judgment on April 3, 1998. This timely appeal followed. II. We review de novo a district court’s grant of summary judgment, using the same Rule 56(c) standard as the district court. See Terry Barr Sales Agency, Inc. v. All-Lock Co., Inc., 96 F.3d 174, 178 (6th Cir.1996). Under that standard, summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). In deciding a motion for summary judgment, we assess the factual evidence and draw all reasonable inferences in favor of the non-moving party. See National Enterprises, Inc. v. Smith, 114 F.3d 561, 563 (6th Cir.1997). Merely alleging the existence of a factual dispute is insufficient to defeat a summary judgment motion; rather, there must exist in the record a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). III. A. Title VII’s prohibition on employment practices that discriminate “because of [an] individual’s sex,”" }, { "docid": "13288895", "title": "", "text": "and C. Earl Brown, Inc. breached their contract with Mr. Watkins by failing to pay him the commissions he was due under a contract between Mr. Watkins and defendants when he was terminated. (Paper No. 9, Count II). For the reasons stated below, Mr. Lent’s Motion for Summary Judgment is granted with respect to Count II of the Complaint. In order to recover on a breach of contract theory, plaintiff has the burden of showing, inter alia, that a contract existed between Mr. Lent and Mr. Watkins. Plaintiff alleges in her complaint that “Decedent James Watkins and Defendants entered into a contract .” (Paper No. 9, Count II ¶ 13). In support of his Motion for Summary Judgment, Mr. Lent attached an affidavit in which he stated that “I at no time entered into an employment contract with James Watkins for him to work for me as an individual.” (Paper No. 20, Ex. 2). Where, as here, the nonmoving party would have the burden of proof at trial, that party must use proof, such as affidavits and deposition testimony, to identify specific facts constituting a genuine issue of fact. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Reliance on allegations in plaintiffs Complaint are insufficient to overcome summary judgment. Fed.R.Civ.P. 56(e) (“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.”); Anderson, 477 U.S. at 257, 106 S.Ct. 2505. In this case, however, plaintiff did not satisfy her duty to establish a genuine issue of material fact. Plaintiffs opposition did not address the breach of contract claim, let alone direct the court to any evidence on the issue. (Paper No. 21). Even after the court specifically requested additional briefing on the breach of contract claim in its letter of October 3, 2001, plaintiff did not respond. Therefore, there is no" }, { "docid": "23622935", "title": "", "text": "discrimination on the basis of race. Ms. Bell argues before us that she met her burden by presenting her deposition testimony. According to Ms. Bell, she testified that she knew Caucasian students were permitted to retake exams, but she was not given that opportunity. Ms. Bell declares, [i]n essence, the trial Court requires that Plaintiff identify by name an individual who received more favorable treatment. This is not required under the law. Plaintiff testified that she was aware that Caucasian students were treated differently. This is sufficient evidence of disparate treatment.... Plaintiff has indeed come forth with sufficient evidence to demonstrate that the students who were allowed to retake exams had the most important characteristic, namely, they were Caucasian. The trial Court requires too much when it asks the Plaintiff to identify the similarly situated students by name, etc. Not surprisingly, Ms. Bell cites no authority for this proposition. Merely reading Fed. R. Civ. Pro. 56(e) would disabuse her of this view: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. Pro. 56(e) (emphasis added). And this circuit has long held that “[m]ere conclusory and unsupported allegations, rooted in speculation, do not meet that burden.” Bryant v. Commonwealth of Kentucky, 490 F.2d 1273, 1274 (6th Cir.1974) (per curiam). We think it is important to note here that not only does Ms. Bell egregiously misstate the law, she egregiously misstates her own deposition testimony. When asked whether she was aware of other students who had missed the final exam for the internal medicine rotation in August of 1993, or who had been permitted to take makeup exams in internal medicine after missing the final, Ms. Bell responded that she did not know of or could not recall any such students. When asked whether she knew of any" }, { "docid": "8454682", "title": "", "text": "original). Moreover, when a party cannot establish the existence of an element essential to that party’s case on which the party will have the burden of proof at trial, the Court must enter summary judgment against that party, pursuant to Rule 56. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. Thus, in order to survive a motion for summary judgment, [w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts____ In the language of the Rule, the nonmoving party must come forward with “specific facts showing that there is a genuine issue for trial.” Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1356 (emphasis in the original) (footnote and citations omitted). Rule 56(e) of the Federal Rules of Civil Procedure provides: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment if appropriate, shall be entered against the adverse party. Accordingly, mere allegations are not sufficient to defeat summary judgment. The Court can now apply this standard to the Defendant’s motion for summary judgment. Analysis According to the various documents which have been submitted by the parties, it appears to the Court that the following facts are not in dispute. The Court notes that the parties disagree on some factual issues, but none of their factual disputes appear to be relevant to the legal issues discussed in this Order. On May 16, 1960, Ohio Fuel Gas Company (“Ohio Fuel”) conveyed the property located at 170 Marconi Boulevard to the Temple of Goodwill (“Temple”) in exchange for rent-free parking for twenty years in the parking garage to be erected at this location. Temple and Ohio Fuel entered into a lease" }, { "docid": "13288896", "title": "", "text": "affidavits and deposition testimony, to identify specific facts constituting a genuine issue of fact. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Reliance on allegations in plaintiffs Complaint are insufficient to overcome summary judgment. Fed.R.Civ.P. 56(e) (“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.”); Anderson, 477 U.S. at 257, 106 S.Ct. 2505. In this case, however, plaintiff did not satisfy her duty to establish a genuine issue of material fact. Plaintiffs opposition did not address the breach of contract claim, let alone direct the court to any evidence on the issue. (Paper No. 21). Even after the court specifically requested additional briefing on the breach of contract claim in its letter of October 3, 2001, plaintiff did not respond. Therefore, there is no evidence before the court showing that there is a genuine dispute as to whether a contract existed between Mr. Lent and Mr. Watkins. Pursuant to Federal Rule of Civil Procedure 56(e), where the adverse party does not respond, as here, summary judgment is appropriate. Accordingly, Mr. Lent is entitled to summary judgment on Count II of the Complaint. TV. Conclusion For the foregoing reasons, Defendant David Lent’s Motion for Summary Judgment is granted as to Counts I and II of the Complaint. A separate order shall issue. . This suit was originally filed by James Watkins. (Paper No. 1). After James Watkins' death, Arlene Watkins, administratrix of his estate, was substituted as plaintiff. (Paper No. 8). . By letter dated October 3, 2001, the court invited the parties to submit additional materials relevant to the pending motion for summary judgment. In particular, the court noted that defendant had not filed a reply and that plaintiffs opposition did not address the breach of contract claim. Neither party submitted any additional materials. . Both parties submitted brief" }, { "docid": "17193402", "title": "", "text": "The moving party has “the burden of showing the absence of a genuine issue as to any material fact.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). “[W]hen determining whether the moving party has proven the absence of a genuine material issue of fact, the facts asserted by the nonmoving party, if supported by affidavits or other evidentiary material, must be regarded as true, and the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion.” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir.1996) (citations and internal quotation marks omitted). However, the party opposing the motion “may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). If “there is any evidence in the record from any source from which a reasonable inference in the [nonmoving party’s] favor may be drawn, the moving party simply cannot obtain a summary judgment.” Aman, 85 F.3d at 1081 (citation omitted). B. Defendants’ Motions for Summary Judgment Defendants raise the following grounds in support of their motions for summary judgment: (1) damage claims against them in their official capacities are barred by the Eleventh Amendment; (2) defendants Fau-ver and DiSabato are not liable under § 1983 because they were not personally involved in any alleged constitutional violations; (3) damage claims against defendants Farrell and Vitello in their individual capacities are barred by absolute immunity; (4) defendants are protected by qualified immunity; (5) the due process claims alleged by plaintiff are not cognizable under 42 U.S.C. § 1983; (6) summary judgment should be granted defendants because plaintiff has not alleged a com-pensable injury; (7) punitive damages are not warranted; (8) summary judgment should be granted defendants because plaintiff has missed monthly payments towards his filing fee; (9) summary judgment should be granted in favor of Peggy" }, { "docid": "5938707", "title": "", "text": "ORDER GRANTING MOTION FOR SUMMARY JUDGMENT BOHANON, District Judge. Before the court is the motion for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure filed by the Defendant, Rose State College, on March 8, 1991. Plaintiff’s response was filed on March 25, 1991. The issues have been fully briefed and are ripe for determination. After careful review of the motion, supporting brief and attached exhibits as well as Plaintiff’s response and attached exhibits, the court finds that Defendant’s motion for summary judgment should be granted as to each of Plaintiff’s claims. Plaintiff, Wynelle Scheerer’s, complaint results from Defendant’s failure to hire Plaintiff as Director of Nursing, a decision which Plaintiff claims was based on discriminatory hiring practices. This court’s jurisdiction is invoked under 28 U.S.C. § 1331, 28 U.S.C. § 1343(3) and (4) and 28 U.S.C. §§ 2201 and 2202. Plaintiff brings her action under Title VII, 42 U.S.C. § 2000e, as amended, as well as 42 U.S.C. §§ 1981 and 1982, and 20 U.S.C. §§ 1681 and 1684. Defendant’s motion for summary judgment addresses each of these claims. STANDARD OF REVIEW The standard for granting summary judgment is expressed in Rule 56 of the Federal Rules of Civil Procedure. This rule provides that judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). When a motion for summary judgment is made, the party opposing the motion may not rest on the pleadings or on mere allegations or denials, but “must set forth specific facts showing that there is a genuine issue for trial.” Id. at 56(e). The adverse party must present sufficient evidence that his claim has merit. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). On a summary judgment motion, the court is required to pierce the pleadings and evaluate the actual proof to determine whether summary judgment is" }, { "docid": "5994038", "title": "", "text": "the second two requests until after deciding the aforementioned pending summary judgment motions. Because this Court will decide those motions in favor of defendants, and determine that there is no liability upon any defendant herein, no damage issue need be reached and plaintiffs’ motion regarding discovery as to punitive damages is moot. In several written and oral communications with counsel, this Court afforded the parties opportunities to make additional filings. The final deadline for these filings was March 24, 1996. Having considered all motions filings, this Court will grant summary judgment in favor of defendants and deny plaintiffs summary judgment motion. The summary judgment motion of defendants TRC and Schmitt will be treated as moot. II. Summary Judgment Standard Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56. Material facts are those facts which the substantive law identifies as “facts that might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute concerning material facts is genuine if “a reasonable jury could return a verdict for the nonmoving party.” Id. “A defendant moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that he is entitled to judgment as a matter of law.... Once a defendant makes the necessary showing, the plaintiff must go forward and produce evi-dentiary facts to support his contention.” Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir.1984). In fact, “[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Fed. R.CivJP. 56(e). However, the non-movant is entitled to have all" }, { "docid": "16589647", "title": "", "text": "to the party opposing the motion.” Bouldis v. U.S. Suzuki Motor Corp., 711 F.2d 1319, 1324 (6th Cir.1983). To summarize, summary judgment is only appropriate when no genuine issue of material fact remains to be decided, and when the undisputed facts, viewed in a light most favorable to the non-moving party, entitle the movant to judgment as a matter of law. Smith v. Pan Am World Airways, 706 F.2d 771, 773 (6th Cir.1983). A principle purpose of summary judgment “is to isolate and dispose of factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Rule 56(e) places responsibility on the party against whom summary judgment is sought to demonstrate that summary judgment is improper, either by showing the existence of a material question of fact or that the underlying substantive law does not permit such a decision. In relevant part the provision states: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Rule 56(e), Fed.R.Civ.P. Rule 56(e) requires the nonmoving party to go beyond the pleadings, and by affidavits, depositions, answers to interrogatories, or admissions on file, designate specific facts showing a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. at 2553. This Court will address plaintiff’s Title VII claim alleging discrimination based on sex first. The Supreme Court has forwarded a tripartite analysis for disparate treatment cases. First, plaintiff must prove a prima facie case of discrimination. Next, defendant must offer legitimate nondiscriminatory reasons for its action. Third, plaintiff must establish that defendant’s explanation is mere pretext. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1972). The Court in Douglas went on" }, { "docid": "21890874", "title": "", "text": "September 3, 1992. Plaintiff received her letter on September 6, allowing three days for mailing under F.R.Civ.P. 6(e). Plaintiff filed her complaint on December 7, 1992. Defendants have moved for summary judgment, pursuant to Rule 56(b) of the F.R.Civ. P., on eight grounds: 1) Title VII claim untimely filed; 2) Title VII claim cannot be brought against any defendant not named in the charge; 3) plaintiffs age discrimination claim should be dismissed; 4) plaintiff cannot show that she was constructively discharged; 5) plaintiffs 42 U.S.C. § 1981 claim should be dismissed; 6) this court lacks subject matter jurisdiction over plaintiffs 42 U.S.C. §§ 1981 and 1983 claims; 7) plaintiff suffered no constitutional deprivation; and 8) there was no tortious interference with contractual relations. The motion is denied as to all but one ground because plaintiffs Title VII claim is timely and there are genuine issues of fact which plaintiff has raised concerning her claims of discrimination based on national origin, age, and constructive discharge. STANDARD FOR SUMMARY JUDGMENT AND DISCUSSION “When a motion for summary judgment is made, and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but the adverse party’s response, by affidavits, or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). A Title VII plaintiff cannot “defeat a motion for summary judgment by offering purely conclusory allegations of discrimination.” Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. den. 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985); McLee v. Chrysler Corp., 38 F.3d 67 (2d Cir.1994) (Second Circuit reaffirmed the availability of summary judgment in discrimination cases); Johnson v. Frank, 828 F.Supp. 1143, 1147 (S.D.N.Y.1993) (Motley, J.). While summary judgment is available in Title VII cases, the Second Circuit has recently clarified when summary judgment cannot be granted. In Gallo v. Prudential Residential Services, 22 F.3d 1219, 1223-24 (2d Cir.1994), the Court of Appeals stated: Because writings directly supporting a claim of intentional discrimination are rarely," }, { "docid": "5636470", "title": "", "text": "fact and that it is entitled to judgment as a matter of law. Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir.1984). This burden is met by consideration of affidavits, exhibits, depositions and other discovery materials. Id. The Fourth Circuit has stated that, with regard to motions for summary judgment, trial judges have “an affirmative obligation ... to prevent ‘factually unsupported claims and defenses’ from going to trial.” Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). A mere scintilla of evidence in favor of the non-moving party will not suffice to defeat a motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). Rule 56(c) provides that “[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts shown that there is a genuine issue for trial.” See Rivanna Trawlers Unlimited v. Thompson Trawlers, Inc., 840 F.2d 236, 240 (4th Cir. 1988). A party opposing a motion for summary judgment therefore must produce pretrial evidence countenanced by Rule 56(e) to contradict facts established by evidentiary materials furnished by the moving party. Applying these principles to the facts of record here, this Court concludes that summary judgment as to liability must be granted in favor of plaintiff against both defendants. Plaintiff has produced conclusive evidence indicating that defendants have violated § 705 of the Act, and defendants have not come forward with material evidence, as required by Rule 56(e), rebutting the facts established by plaintiff’s proof. Ill Discussion Section 705(a) of the Federal Communications Act provides, in pertinent part, as follows: [N]o person receiving [or] assisting in receiving ... any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or" }, { "docid": "2535146", "title": "", "text": "serving out the remainder of his term. Because Burrell could not support his contention that he suffered any actual deprivation of a constitutional right — that is, the loss of his job without due process— the judge granted summary judgment on the § 1983 claim. Relatedly, the court determined Burrell could not establish a breach of contract because nothing the defendants said or did prevented Burrell from working his last day in office. The judge also quickly dispatched Burrell’s claims of tortious interference with a prospective contractual relationship and/or tortious interference with a prospective economic advantage for failure to meet necessary elements under Illinois law. Finally, because all of the claims upon which the conspiracy count was predicated failed, the judge dismissed the conspiracy count as well. II. Analysis We review the district court’s grant of summary judgment de novo, construing all facts in favor of the non-moving party. Smith v. Dunn, 368 F.3d 705, 708 (7th Cir.2004). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). We note, as did the district judge, that where the party seeking summary judgment has supported its recitation of facts with citations to depositions and other record materials, “an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c) [depositions, answers to interrogatories, admissions on file, and affidavits], except the mere pleadings themselves .... ” (emphasis added)). A. 42 U.S.C. § 1983 Section 1983 provides: Every" }, { "docid": "1327345", "title": "", "text": "favorable to the party opposing the motion.” Bouldis v. U.S. Suzuki Motor Corp., 711 F.2d 1319, 1324 (6th Cir.1983). To summarize, summary judgment is only appropriate when no genuine issue of material fact remains to be decided, and when the undisputed facts, viewed in a light most favorable to the non-moving party, entitle the movant to judgment as a matter of law. Smith v. Pan Am World Airways, 706 F.2d 771, 773 (6th Cir.1983). A principle purpose of summary judgment “is to isolate and dispose of factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Rule 56(e) places responsibility on the party against whom summary judgment is sought to demonstrate that summary judgment is improper, either by showing the existence of a material question of fact or that the underlying substantive law does not permit such a decision. In relevant part the provision states: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Rule 56(e), Fed.R.Civ.P. Rule 56(e) requires the non-moving party to go beyond the pleadings, and by affidavits, depositions, answers to interrogatories, or admissions on file, designate specific facts showing a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. at 2553. In their first claim for relief, plaintiffs allege that SOA’s actions violated their rights under the Fair Housing Act (FHA), 42 U.S.C. §§ 3601 et seq. Specifically, plaintiffs allege that SOA violated 42 U.S.C. §§ 3604(a) and (b) and 3605. SOA argues that it is entitled to summary judgment on this count because plaintiffs have failed to establish a prima facie case of discrimination. The parties have cited, and this Court is aware of, only one case dealing" }, { "docid": "3238653", "title": "", "text": "EEOC charge of discriminatory discharge. Dr. Russell’s charge of discrimination by Belmont College complains not only of discriminatory discharge but also of discrimination in the compensation of her employment with Belmont College. This charge overlaps with her Equal Pay Act claim. The timeliness of Dr. Russell’s discriminatory pay claim is subject to the “continuing violation” doctrine. The Sixth Circuit held in Hall v. Ledex, Inc., 669 F.2d 397, 398 (6th Cir.1982), that a discriminatory denial of equal pay is “continuing in nature” and subjects a complainant to the impact of discrimination with each check received. Id. See also United Air Line, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). Thus, in this case, Dr. Russell was subjected to discrimination in her compensation from Belmont College until her termination in May 1980. Dr. Russell’s October 30, 1980 EEOC charge is clearly within 300 days of the plaintiff’s termination in May 1980; thus, she has a timely Title VII compensation claim for discrimination on the basis of sex. V. The defendants also seek summary judgment on some of the plaintiff’s pendent state law claims, namely: breach of contract, interference with prospective employment, negligence, and defamation. The burden on the plaintiff when the defendant moves for summary judgment is not to show that a claim has been stated, but to show that there is a disputed issue of material fact. Fed.R.Civ.P. 56(e) provides in part that: When a motion for summary judgment is made and supported ... an adverse party may not rest upon the mere allegations or denials of his pleading but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Relying on depositions, the defendants correctly argue that the plaintiff has failed to show essential elements of her pendent state law claims. The plaintiff has failed to establish either in her brief or during the hearing on this motion that disputed issues of material fact" }, { "docid": "7429204", "title": "", "text": "the moving party if “there is no genuine issue as to any material fact and [ ] the moving party is entitled to judgment as a matter of law.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On a motion for summary judgment, all facts must be construed in favor of the nonmoving party. Id.; Buttry v. General Signal Corp., 68 F.3d 1488, 1492 (2d Cir.1995). Where the moving, party has supported the motion by affidavits and/or documentary evidence, the non-movant “may not rest upon mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in [ ] rule [56], must set forth specific facts showing that there is a genuine issue [of material fact] for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.” fed. R. Civ. P. 56(e); see BellSouth Telecommunications, Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996). With this standard in mind, the Court will now address defendants’ motion for summary judgment. C. Whether Plaintiffs Claims are Timely Defendants first move to dismiss several of plaintiffs claims on the ground that they are time barred. Specifically, defendants claim that, under Title VII, any conduct occurring prior to November 16, 1991 (300 days prior to the filing of the September 11, 1992 charge) and any alleged retaliation occurring prior to June 17,1993 (300 days.prior to the filing of the April 13, 1994 charge) are precluded pursuant to 42 U.S.C. § 2000e-5(e). Defendants similarly argue that any conduct occurring prior to December 11, 1993 (three years before plaintiff filed her Complaint) may not be considered in connection with their claim pursuant to 42 U.S.C. § 1983. Plaintiff responds that she is the victim of specific ongoing discriminatory practices or policies and that the County permitted specific, related instances of discrimination to go unremedied during this entire period. Accordingly, plaintiff seeks to invoke the continuing violation doctrine. 1. Timeliness of Title VII claims Pursuant to" } ]

[ { "docid": "22181077", "title": "", "text": "720, 722 (9th Cir.1983). We treat the 30 day time limit here as a statute of limitations and it is subject to waiver, estoppel and equitable tolling. The Postal Service communicated to Boyd its final refusal to reinstate him in a letter dated February 27, 1981. Boyd did not attempt to contact an EEO counsel until May 13, 1981. Boyd argues that the matter was not final on February 27 because correspondence was still continuing between Senator Jackson’s office and Postmaster General Bolger. We agree with the district court that the correspondence Boyd relies on in no way promises that the Postmaster General would personally review the merits of Boyd’s application for reinstatement. Postmaster General Bolger merely stated that Senator Jackson’s letter was receiving attention. The time period for filing a complaint of discrimination begins to run when the facts that would support a charge of discrimination would have been apparent to a similarly situated person with a reasonably prudent regard for his rights. Bickham v. Miller, 584 F.2d 736, 738 (5th Cir. 1978). We agree with the district court that in the face of the February 27, 1981, letter stating that the decision not to reinstate Boyd was “final,” Boyd’s failure to act was not an exercise of reasonable prudence. Boyd next argues that because the Post Office accepted the complaint and began an investigation, it waived the right to contest timeliness and extended the time limit pursuant to the regulations. See 29 C.F.R. § 1613.214(a)(4) (1984). We disagree. The mere receipt and investigation of a complaint does not waive objection to a complainant’s failure to comply with the original filing time limit when the later investigation does not result in an administrative finding of discrimination. See Saltz v. Lehman, 672 F.2d 207, 208 (D.C.Cir.1982); Oaxaca v. Roscoe, 641 F.2d 386, 389-90 (5th Cir.1981). Finally, nothing in this record compels the application of the principles of estoppel or equitable tolling. Boyd was not affirmatively misled by a Postal Service official nor was he unaware of the appropriate administrative procedures. Because he did not bring his grievance to the attention" } ]

[ { "docid": "21711021", "title": "", "text": "waiver requires a plaintiff to show not only that an agency accepted and investigated a discrimination complaint, but also that it decided it on the merits “without mentioning timeliness.” Nurriddin v. Bolden, 674 F.Supp.2d 64, 86 (D.D.C. 2009) (quoting Bowden, 106 F.3d at 438). The out-of-jurisdiction case that Plaintiff cites in support of her claim, see PL’s Opp’n at 11, goes even further, holding that an agency waives the defense of non-exhaustion only by “making an express finding that the complaint was timely or failing to appeal an EEOC determination of timeliness.” See Seals v. Potter, 787 F.Supp.2d 239, 243 (N.D.N.Y. 2011) (quoting Bruce v. U.S. Dep’t of Justice, 314 F.3d 71, 74 (2d Cir. 2002)). In Seals, the plaintiff argued that the agency had waived its non-exhaustion argument because it “accepted] and pursu[ed]” her administrative complaint. Id. Reasoning that “government agencies do not waive a defense of untimely exhaustion merely by accepting and investigating a discrimination complaint,” that court rejected that argument because the agency did not make an express finding of timeliness. Id. (quoting Belgrave v. Pena, 254 F.3d 384, 387 (2d Cir. 2001) (per curiam)). Ms. Sierra in no way shows that the LOC decided her discrimination complaint on the merits without mentioning timeliness, as required under Nurriddin, 674 F.Supp.2d at 86. In fact, she does the opposite. Ms. Sierra attaches the LOC’s administrative decision to her opposition, which contains the following paragraph: The record revealed that you first contacted an EEO Counselor on or about December 27, 2013, and that the last time you asked Ms. Lloyd for a promotion ... was 2012. Accordingly, your claim of non-promotion failed to comply with the time limits of Library of Congress Regulation 2010-3.1, Policy and Procedures for Filing Equal Employment Opportunity Complaints of Discrimination. ECF No. 6-5 (“LOC Administrative Decision”) at 10. Thus; rather than ignoring the timeliness issue or expressly finding that Plaintiffs claims were timely, the LOC found that they were untimely. Accordingly, Plaintiff has failed to show that the LOC waived its defense of untimely exhaustion. 3. Plaintiff Has Not Demonstrated that She Is Entitled" }, { "docid": "14802596", "title": "", "text": "answer to state the affirmative defense of untimely exhaustion. Because this amendment to the answer occurred before trial, did not require additional discovery, and was not premised on bad faith, the district court acted within its discretion to allow the amendment. See Monahan v. N.Y. City Dep’t of Corr., 214 F.3d 275, 283 (2d Cir.2000). Compare Forhus v. Sears Roebuck & Co., 30 F.3d 1402, 1405 (11th Cir.1994) (allowing amendment of complaint to include affirmative defense and stating that “[i]n the absence of undue delay, bad faith, dilatory motive or undue prejudice, leave to amend is routinely granted”), with Francis v. City of N.Y., 235 F.3d 763, 768 (2d Cir.2000) (finding waiver after New York City failed to raise administrative exhaustion “in their answer” and waited to raise it “until after' judgment had been entered” following a jury verdict). Finally, Belgrave argues that “in accepting and investigating [his] EEO complaint, [the Government] waived its right to argue that this case is time-barred.” Although we have not squarely addressed this issue before, each of our sister circuits that has done so has held that government “agencies do not waive a defense of untimely exhaustion merely by accepting and investigating a discrimination complaint.” Bowden v. United States, 106 F.3d 433, 438 (D.C.Cir.1997) (citing Boyd v. United States Postal Serv., 752 F.2d 410, 414 (9th Cir.1985)); see also Rowe v. Sullivan, 967 F.2d 186, 191 (5th Cir.1992) (“In order to waive a timeliness objection, the agency must make a specific finding that the claimant’s submission was timely.”). We now adopt this rule as well. Indeed, were we to do otherwise we would “vitiate any incentive for [government] agencies to investigate and voluntarily remedy” instances of discrimination, lest the agencies risk forfeiting a valid defense to a potential suit. Bruno v. Brady, Civ. No. 91-2605, 1992 WL 57920, at *3 (E.D.Pa. Mar. 16, 1992) (holding that “acceptance and investigation of a federal employee’s complaint does not constitute waiver”). Because Belgrave failed to present the district court with a material question as to whether he had timely filed his formal EEO complaint and because Belgrave" }, { "docid": "5465617", "title": "", "text": "administrative claims of discrimination is not necessary to preserve our jurisdiction, and a plaintiffs failure to do so may be waived if the agency reaches the merits without addressing the procedural default. In this case, the VA ruled on the merits of Ester’s claims without addressing Ester’s failure to timely file his formal complaint. We therefore conclude that the VA waived its right to argue that Ester failed to timely exhaust the administrative remedies available to him. Ill For the foregoing reasons, the judgment of the district court is ReveRSed and the case is Remanded for further proceedings. . We do not, however, reject the well-setLled rule that agencies do not waive a timeliness defense merely by accepting and investigating a discrimination complaint. See Bowden, 106 F.3d at 438; Boyd, 752 F.2d at 414; Oaxaca v. Roscoe, 641 F.2d 386, 390 (5th Cir.1981). Nor does our' rule prevent an agency from deciding the merits of a complaint at the risk of losing a timeliness objection; the agency is free to find the complaint untimely, and nonetheless proceed to address the merits of the case." }, { "docid": "14802597", "title": "", "text": "circuits that has done so has held that government “agencies do not waive a defense of untimely exhaustion merely by accepting and investigating a discrimination complaint.” Bowden v. United States, 106 F.3d 433, 438 (D.C.Cir.1997) (citing Boyd v. United States Postal Serv., 752 F.2d 410, 414 (9th Cir.1985)); see also Rowe v. Sullivan, 967 F.2d 186, 191 (5th Cir.1992) (“In order to waive a timeliness objection, the agency must make a specific finding that the claimant’s submission was timely.”). We now adopt this rule as well. Indeed, were we to do otherwise we would “vitiate any incentive for [government] agencies to investigate and voluntarily remedy” instances of discrimination, lest the agencies risk forfeiting a valid defense to a potential suit. Bruno v. Brady, Civ. No. 91-2605, 1992 WL 57920, at *3 (E.D.Pa. Mar. 16, 1992) (holding that “acceptance and investigation of a federal employee’s complaint does not constitute waiver”). Because Belgrave failed to present the district court with a material question as to whether he had timely filed his formal EEO complaint and because Belgrave failed to assert a valid basis for finding that the government had waived that defense, the judgement of the district court dismissing his Title VII and ADEA claims is hereby affirmed. Each side to bear its own costs of appeal." }, { "docid": "13794244", "title": "", "text": "The court implicitly rejected appellants’ argument that Ritz-Carlton had waived the timeliness issue by failing to raise it with the EEOC, noting that the agency’s issuance of right-to-sue letters did not insulate the filing defect from independent evaluation by the court. On appeal, Mercado and Hebert reiterate both their waiver and equitable tolling arguments. We first briefly address the threshold question of waiver, along with Ritz-Canton's contention that the appeal is premature, and then turn to the equitable tolling doctrine. II. Discussion A. Waiver Appellants contend that Ritz-Canton waived the timeliness defense by failing to bring the issue to the attention of the EEOC; they claim it was raised for the first time in Ritz-Canton's motion for partial dismissal in the district court. Appellants are wrong both legally and factually. First, appellants offer no support for their assertion that the failure to initially raise the defense before the EEOC was fatal, given that the EEOC did not reach a decision on the merits. Both of their cited cases involve instances in which parties belatedly sought to rely in court on procedural flaws that had not been raised in earlier administrative proceedings that reached substantive outcomes. See United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 36-38, 73 S.Ct. 67, 97 L.Ed. 54 (1952); Ester v. Principi, 250 F.3d 1068 (7th Cir.2001). In Ester, the Seventh Circuit held that an agency waives a timeliness defense in a subsequent lawsuit if it decides the merits of a complaint, but noted the court's adherence to \"the well-settled rule that agencies do not waive a timeliness defense merely by accepting and investigating a discrimination complaint.\" Id. at 1072 n. 1 (citing Fifth, Ninth and D.C. Circuit cases); see also Belgrave v. Pena, 254 F.3d 384, 387 (2d Cir.2001); cf. Bruce v. U.S. Dep't of Justice, 314 F.3d 71, 74-75 (2d Cir.2002) (concluding that timeliness defense was waived where a government agency made \"an express determination that [a complaint] was timely based on a specific factual finding\"). We find that principle to be applicable here, where the EEOC issued right-to-sue letters without reaching the" }, { "docid": "15008626", "title": "", "text": "Defendants contend that Bowden is a narrow decision that is “expressly limited to the facts of the case,” referring to the agency’s excessive delay in Bowden in raising the defense in judicial proceedings. Defs.’ Reply at 3. To be sure, the court highlighted the egregious delays by the agency in Bowden in raising the exhaustion defense in district court. Bowden, 106 F.3d at 439. However, the rationale of Bowden rests primarily on the agency having responded to the employee’s claim on the merits during the admin istrative process without raising timeliness: “Because [the agency] responded to the merits of [the employee’s administrative] complaint without ever questioning its timeliness, we think the agency now has no legitimate reason to complain about a judicial decision on the merits. Had it been concerned that information needed to resolve [the employee’s] complaint was stale or that deciding his case would upset settled expectations — traditional objectives of statutes of limitations — it could easily have raised the [time] limitation during the administrative process. What we have repeatedly stated regarding Title VII exhaustion requirements applies here as well: They are “practical and pragmatic” ... and should not be invoked when [they] serve[ ] no practical purpose.” Id. at 438-39 (quoting Wilson v. Pena, 79 F.3d 154, 165 (D.C.Cir.1996)). Subsequent decisions analyzing Bowden have construed it consistent with its stated rationale — “waiver occurs when the agency decides the [administrative] complaint on the merits without addressing the untimeliness defense.” Horton v. Potter, 369 F.3d 906, 911 (6th Cir.2004) (citing Bowden, 106 F.3d at 438); accord Ester v. Principi, 250 F.3d 1068, 1071-72 (7th Cir.2001) (“when an agency decides the merits of a complaint without addressing the question of timeliness, it has waived a timeliness defense in a subsequent lawsuit”); Kriesch v. Johanns, 468 F.Supp.2d 183, 186-87 (D.D.C.2007) (“[T]he [agency] accepted for investigation, investigated fully, and decided on the merits all of [the employee’s] EEO complaints and ... never raised untimeliness during the administrative process. Circuit precedent [Bowden ] is clear that, under these circumstances, [the agency] may have waived its exhaustion defense.”); Johnson v. Billington, 404" }, { "docid": "5465616", "title": "", "text": "case, we are not entirely adopting the Chenery rule. We take from Chenery, because it maintains persuasive force, the principle that an agency must stand on the reasons actually stated for its action. Third, in deciding the question of waiver along federal/agency lines we believe instructive the decisions on waiver along federal/state lines. And, on federal habeas corpus review, the Supreme Court has required the last state court rendering a judgment to make a “plain statement” of any adequate and independent state ground {e.g., procedural default), before federal courts will be precluded from addressing the federal questions presented. Harris v. Reed, 489 U.S. 255, 265, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). As the Court stated in Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991), “[sjtate procedural bars are not immortal .... [they may expire i]f the last state court to be presented with a particular federal claim reaches the merits.” Id. at 801, 111 S.Ct. 2590. We decline to extend to administrative procedural default an-immortal status; timely filing of administrative claims of discrimination is not necessary to preserve our jurisdiction, and a plaintiffs failure to do so may be waived if the agency reaches the merits without addressing the procedural default. In this case, the VA ruled on the merits of Ester’s claims without addressing Ester’s failure to timely file his formal complaint. We therefore conclude that the VA waived its right to argue that Ester failed to timely exhaust the administrative remedies available to him. Ill For the foregoing reasons, the judgment of the district court is ReveRSed and the case is Remanded for further proceedings. . We do not, however, reject the well-setLled rule that agencies do not waive a timeliness defense merely by accepting and investigating a discrimination complaint. See Bowden, 106 F.3d at 438; Boyd, 752 F.2d at 414; Oaxaca v. Roscoe, 641 F.2d 386, 390 (5th Cir.1981). Nor does our' rule prevent an agency from deciding the merits of a complaint at the risk of losing a timeliness objection; the agency is free to find the complaint untimely, and" }, { "docid": "5465612", "title": "", "text": "administrative remedies in a timely fashion, a court would ordinarily dismiss his Title VII claims without considering the merits of the claims. See White v. Bentsen, 31 F.3d 474, 474-76 (7th Cir.1994). However, ordinarily is not always. The requirement that a federal employee exhaust available administrative remedies in a timely fashion is subject to the doctrines of waiver, estoppel and equitable tolling. Gibson v. West, 201 F.3d 990, 993-94 (7th Cir.2000). Invoking the first of those doctrines, Ester contends that the VA waived the requirement that he timely file a formal complaint by not asserting that requirement as a defense in administrative proceedings. This court has not yet addressed when an agency’s failure to assert an available exhaustion defense in administrative proceedings should constitute waiver of such a defense in a subsequent lawsuit. And, the courts of appeals that have considered the issue have not produced uniform results. One circuit has adopted a rule that requires an agency to make an explicit finding of timeliness, before accepting that the agency has waived a timeliness defense. See Rowe v. Sullivan, 967 F.2d 186, 191 (5th Cir.1992). While another has determined that an agency waives a timeliness defense when it makes a finding of discrimination. See Boyd v. United States Postal Serv., 752 F.2d 410, 414 (9th Cir.1985). We decline to follow either circuit. Instead, we conclude that when an agency decides the merits of a complaint, without addressing the question of timeliness, it has waived a timeliness defense in a subsequent lawsuit. Accord Bowden v. United States, 106 F.3d 433, 438-39 (D.C.Cir.1997). We believe this position is more consistent with the Supreme Court’s holding in United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952) (“[O]rderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts.”). In L.A. Tucker, the Supreme Court affirmed the sound principle that any objections not made before the administrative agency are subsequently waived before the courts." }, { "docid": "18592845", "title": "", "text": "Scott v. Claytor, 469 F.Supp. 22, 24 (D.D.C.1978) (29 C.F.R. § 1613.214(a)(4) contemplates a deliberate and not inadvertent decision to waive a timeliness defense). A broad rule might also discourage administrative resolution of meritorious claims, which nevertheless are untimely. Nothing in Oaxaca, however, indicates that an agency may not extend the time for filing a complaint, as the regulations permit. 29 C.F.R. § 1613.214(a)(4) unequivocally requires that the time limits be extended for “reasons considered sufficient by the agency.” In this case, the agency fully investigated the timeliness of the complaint, and found a satisfactory reason for the delay. No more was required to fulfill the statutory prerequisites to suit, and the district court need not have reconsidered the question of timeliness. Cf. Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011, 1014 n. 6 (5th Cir.1971). We do not decide whether, once having found that circumstances warranted an extension of the time limits, the VA might have reconsidered and altered its finding in the light of new information or a more careful review. Like any federal agency, the VA may revise its decisions as long as it acts in a reasoned and nonarbitrary manner. See, e.g., Dawson v. Merit Systems Protection Board, 712 F.2d 264, 267 (7th Cir.1983); Hatch v. FERC, 654 F.2d 825, 834 (D.C.Cir.1981); Trujillo v. General Electric Co., 621 F.2d 1084, 1086 (10th Cir.1980). But the VA did not retract or refute its finding here. It simply raised an objection in court that was mooted by its earlier unmodified finding. This Court concludes that Henderson’s claim was timely filed at the administrative level, and that the district court erroneously granted partial summary judgment in favor of the Veterans Administration. Because of this resolution, Henderson’s additional arguments need not be addressed. This Court vacates the remainder of the district court’s judgment so that it will be free to reconsider the entire case without restraint. III. CONCLUSION For the foregoing reasons, the judgment of the district court is reversed in part, vacated in part, and remanded for a consideration of the merits of Henderson’s claims in a" }, { "docid": "5465613", "title": "", "text": "See Rowe v. Sullivan, 967 F.2d 186, 191 (5th Cir.1992). While another has determined that an agency waives a timeliness defense when it makes a finding of discrimination. See Boyd v. United States Postal Serv., 752 F.2d 410, 414 (9th Cir.1985). We decline to follow either circuit. Instead, we conclude that when an agency decides the merits of a complaint, without addressing the question of timeliness, it has waived a timeliness defense in a subsequent lawsuit. Accord Bowden v. United States, 106 F.3d 433, 438-39 (D.C.Cir.1997). We believe this position is more consistent with the Supreme Court’s holding in United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952) (“[O]rderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts.”). In L.A. Tucker, the Supreme Court affirmed the sound principle that any objections not made before the administrative agency are subsequently waived before the courts. Id. Inasmuch as we understand that rule to parallel the rule that appellate courts will not review arguments that were not raised in the trial courts, see generally Massachusetts, Dep’t of Pub. Welfare v. Sec’y of Agric., 984 F.2d 514, 523 (1st Cir.1993) (“The doctrine of procedural default in the administrative context is analogous to the established rule that appellate courts will not entertain arguments which could have been, but were not, raised in the trial court.”), we see no reason to apply the rules differently to plaintiff and agency. To the contrary, strong policy considerations compel us toward the equal-application conclusion we reach today. First, the values of judicial economy, agency autonomy, accuracy and the need for a well-developed record for review, are all served by requiring objections — even those objections possessed by the agency itself — to be raised in the agency proceeding. See McKart v. United States, 395 U.S. 185, 193-95, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) (discussing policy reasons for application of the doctrine of exhaustion of remedies). We" }, { "docid": "5465611", "title": "", "text": "file a formal complaint by not asserting that requirement as a defense in administrative proceedings. Unpersuaded by Ester’s waiver argument, or any of his other arguments, the district court granted the VA’s motion for summary judgment. Ester now appeals and argues that the district court erred in rejecting his waiver argument. II Federal employees who seek to assert Title VII claims must exhaust the administrative remedies available to them in a timely fashion before they may assert their claims in a lawsuit. 42 U.S.C. § 2000e — 16(c); Brown v. Gen. Servs. Admin., 425 U.S. 820, 832, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Rennie v. Garrett, 896 F.2d 1057, 1059 (7th Cir.1990). One administrative remedy federal employees must pursue is the filing of a formal complaint of discrimination within 15 days of receiving notice of the right to do so. 29 C.F.R. § 1614.106. Here, there is no dispute that Ester failed to file his formal complaint of discrimination within 15 days of receiving the required notice. Because Ester thus failed to exhaust his administrative remedies in a timely fashion, a court would ordinarily dismiss his Title VII claims without considering the merits of the claims. See White v. Bentsen, 31 F.3d 474, 474-76 (7th Cir.1994). However, ordinarily is not always. The requirement that a federal employee exhaust available administrative remedies in a timely fashion is subject to the doctrines of waiver, estoppel and equitable tolling. Gibson v. West, 201 F.3d 990, 993-94 (7th Cir.2000). Invoking the first of those doctrines, Ester contends that the VA waived the requirement that he timely file a formal complaint by not asserting that requirement as a defense in administrative proceedings. This court has not yet addressed when an agency’s failure to assert an available exhaustion defense in administrative proceedings should constitute waiver of such a defense in a subsequent lawsuit. And, the courts of appeals that have considered the issue have not produced uniform results. One circuit has adopted a rule that requires an agency to make an explicit finding of timeliness, before accepting that the agency has waived a timeliness defense." }, { "docid": "7039290", "title": "", "text": "request for counseling. Horton alleges that Thomas Newman’s statement of May 6, 1993, contributed to a hostile work environment, thereby establishing a continuing violation that was ongoing within 45 days of his request for counseling. However, as the district court held, Newman’s statement that “management [at the Dearborn post office] obviously didn’t change as fast as I did in Royal Oak,” was at best a criticism of the management at the Royal Oak post office, not a discriminatory act against Horton. Horton has identified neither a discrete discriminatory act nor an act contributing to a continuing violation that occurred within the 45-day period prior to his first contact with the EEO counselor. Therefore, the district court was justified in holding that Horton failed to exhaust his administrative remedies and it properly-granted summary judgment in favor of the Postmaster General. IV. Nor are we persuaded that the Postmaster General waived any objection to the untimeliness of Horton’s request for counseling by not raising this defense at the administrative stage. The requirement that a federal employee initiate contact with an EEO counselor within 45 days of the alleged discrimination is not a jurisdictional prerequisite. McFarland, 307 F.3d at 406. As such, it is subject to waiver, estoppel, and equitable tolling. Id. Five of our sister circuits have held that when an agency accepts and investigates a complaint of discrimination, as the Postal Service did in this case, it does not thereby waive a defense that the complaint was untimely. See Belgrave v. Pena, 254 F.3d 384, 387 (2d Cir.2001); Ester v. Principi, 250 F.3d 1068, 1072 n. 1 (7th Cir.2001); Bowden v. United States, 106 F.3d 433, 438 (D.C.Cir.1997); Rowe v. Sullivan, 967 F.2d 186, 191 (5th Cir.1992); Boyd v. U.S. Postal Serv., 752 F.2d 410, 414 (9th Cir.1985). Rather, waiver occurs when the agency decides the complaint on the merits without addressing the untimeliness defense. Ester, 250 F.3d at 1071-72; Bowden, 106 F.3d at 438. When Horton had his initial interview with the EEO counselor on May 19, 1993, he completed a form entitled “EEO Request for Counseling” in which he" }, { "docid": "10428679", "title": "", "text": "raised the thirty-day time limit during the administrative proceedings. Although agencies do not waive a defense of untimely exhaustion merely by accepting and investigating a discrimination complaint, id. at 15; see also Boyd v. United States Postal Serv., 752 F.2d 410, 414 (9th Cir.1985); Oaxaca v. Roscoe, 641 F.2d 386, 390 (5th Cir.1981), we have suggested that if they not only accept and investigate a complaint, but also decide it on the merits—all without mentioning timeliness—their failure to raise the issue in the administrative process may lead to waiver of the defense when the complainant files suit. See Saltz v. Lehman, 672 F.2d 207, 208 (D.C.Cir.1982); see also Brown, in F.2d at 18 & n. 2 (Starr, J., dissenting); cf. Boyd, 752 F.2d at 414; Scott v. Claytor, 469 F.Supp. 22, 24 & n. 7 (D.D.C.1978); Fed. R.Civ.P. 12(h)(2) (allowing raising of properly preserved statute of limitations defense through trial). Because the INS responded to the merits of Bowden’s complaint without ever questioning its timeliness, we think the agency now has no legitimate reason to com plain about a judicial decision on the merits. Had it been concerned that information needed to resolve Bowden’s complaint was stale or that deciding his case would upset settled expectations—traditional objectives of statutes of limitations—it could easily have raised the thirty-day limitation during the administrative process. What we have repeatedly stated regarding Title VII exhaustion requirements applies here as well: They are “ ‘practical and pragmatic’ ... and should not be invoked when [they] serve[ ] no practical purpose.” Wilson, 79 F.3d at 165 (quoting Brawn, 777 F.2d at 14 (quoting President v. Vance, 627 F.2d 353, 363 (D.C.Cir.1980))). Not only did the INS fail to question Bow-den’s timeliness during the administrative process, but it did not raise the issue either in response to Bowden’s initial suit in district court or later when Bowden took his ease to the Court of Claims. Moreover, the government’s plainly contradictory responses to those two complaints—asserting before each court that the other had exclusive jurisdiction over Bowden’s suit, arguments the Court of Claims denounced as creating a “jurisdictional" }, { "docid": "15008627", "title": "", "text": "Title VII exhaustion requirements applies here as well: They are “practical and pragmatic” ... and should not be invoked when [they] serve[ ] no practical purpose.” Id. at 438-39 (quoting Wilson v. Pena, 79 F.3d 154, 165 (D.C.Cir.1996)). Subsequent decisions analyzing Bowden have construed it consistent with its stated rationale — “waiver occurs when the agency decides the [administrative] complaint on the merits without addressing the untimeliness defense.” Horton v. Potter, 369 F.3d 906, 911 (6th Cir.2004) (citing Bowden, 106 F.3d at 438); accord Ester v. Principi, 250 F.3d 1068, 1071-72 (7th Cir.2001) (“when an agency decides the merits of a complaint without addressing the question of timeliness, it has waived a timeliness defense in a subsequent lawsuit”); Kriesch v. Johanns, 468 F.Supp.2d 183, 186-87 (D.D.C.2007) (“[T]he [agency] accepted for investigation, investigated fully, and decided on the merits all of [the employee’s] EEO complaints and ... never raised untimeliness during the administrative process. Circuit precedent [Bowden ] is clear that, under these circumstances, [the agency] may have waived its exhaustion defense.”); Johnson v. Billington, 404 F.Supp.2d 157, 162-63 (D.D.C.2005) (“defendant has waived his exhaustion defense by not asserting it timely [during administrative proceedings]”). In this case, the Court is aware of at least two final agency decisions issued by NASA — one dated April 15, 2002 and another dated February 14, 2003. Those two agency decisions have not been made part of the record in this case, but the Court takes judicial notice of an EEOC appeal decision that has been publicly reported and reviewed the merits of the main final agency decision at issue. See Nurriddin v. O’Keefe, Appeal No. 01A23148, 2004 WL 2271191 (E.E.O.C. Sept. 30, 2004). According to the EEOC, the agency issued a final agency decision on 42 claims, including the claims that “on August 11, 1998, [plaintiff] was not promoted to a noncompetitive GS-14 position,” and that he was “denied the opportunity to travel” to two conferences in 1998. Id. at *2-*4. Although three grievance claims (not relevant here) were dismissed on procedural grounds, the EEOC reports that the agency investigated and decided the remaining" }, { "docid": "21711020", "title": "", "text": "regulations, with respect to the alleged non-promotions occurring before 2012, she did not exhaust her administrative remedies in a timely fashion. And even if the timeline were to have only begun after she “knew or should have known” of the discriminatory actions, she still would not have timely exhausted. 2. The LOC Did Not Waive Its Non-Exhaustion Defense Plaintiff next contends that the LOC waived its non-exhaustion defense by accepting and investigating her administrative complaint. Notwithstanding a complainant’s untimely submission of an administrative complaint, agencies can, under certain circumstances, waive the defense of exhaustion by accepting a plaintiffs complaint out of time. See Bowden v. United States, 106 F.3d 433, 438 (D.C. Cir. 1997). Once a defendant shows non-exhaustion — as is the case here — the plaintiff carries the burden of showing waiver. Estate of Rudder v. Vilsack, 10 F.Supp.3d 190, 195 (D.D.C. 2014). “[AJgencies do not waive a defense of untimely exhaustion merely by accepting and investigating a discrimination complaint .... ” Bowden, 106 F.3d at 438. Successfully invoking the equitable doctrine of waiver requires a plaintiff to show not only that an agency accepted and investigated a discrimination complaint, but also that it decided it on the merits “without mentioning timeliness.” Nurriddin v. Bolden, 674 F.Supp.2d 64, 86 (D.D.C. 2009) (quoting Bowden, 106 F.3d at 438). The out-of-jurisdiction case that Plaintiff cites in support of her claim, see PL’s Opp’n at 11, goes even further, holding that an agency waives the defense of non-exhaustion only by “making an express finding that the complaint was timely or failing to appeal an EEOC determination of timeliness.” See Seals v. Potter, 787 F.Supp.2d 239, 243 (N.D.N.Y. 2011) (quoting Bruce v. U.S. Dep’t of Justice, 314 F.3d 71, 74 (2d Cir. 2002)). In Seals, the plaintiff argued that the agency had waived its non-exhaustion argument because it “accepted] and pursu[ed]” her administrative complaint. Id. Reasoning that “government agencies do not waive a defense of untimely exhaustion merely by accepting and investigating a discrimination complaint,” that court rejected that argument because the agency did not make an express finding of timeliness. Id." }, { "docid": "13794245", "title": "", "text": "to rely in court on procedural flaws that had not been raised in earlier administrative proceedings that reached substantive outcomes. See United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 36-38, 73 S.Ct. 67, 97 L.Ed. 54 (1952); Ester v. Principi, 250 F.3d 1068 (7th Cir.2001). In Ester, the Seventh Circuit held that an agency waives a timeliness defense in a subsequent lawsuit if it decides the merits of a complaint, but noted the court's adherence to \"the well-settled rule that agencies do not waive a timeliness defense merely by accepting and investigating a discrimination complaint.\" Id. at 1072 n. 1 (citing Fifth, Ninth and D.C. Circuit cases); see also Belgrave v. Pena, 254 F.3d 384, 387 (2d Cir.2001); cf. Bruce v. U.S. Dep't of Justice, 314 F.3d 71, 74-75 (2d Cir.2002) (concluding that timeliness defense was waived where a government agency made \"an express determination that [a complaint] was timely based on a specific factual finding\"). We find that principle to be applicable here, where the EEOC issued right-to-sue letters without reaching the merits of appellants' claims. Nor did appellee belatedly raise the claim in the district court. In its answer to appellants' complaint, Ritz-Carlton asserted as its initial affirmative defense that \"[t]he claims alleged in the plaintiffs' complaint are partially and/or totally barred by the applicable statute of limitations and/or jurisdictional time frames.\" Although conclusory, this assertion adequately identified the issue. The subsequent motion for partial dismissal elaborated on the untimeliness defense by setting out the argument that iViercado and Hebert exceeded the 300-day statutory period for filing a charge with the EEOC. Thus, contrary to appellants' contention, the issue was raised by Ritz-Carlton at its first opportunity in the litigation and it was thus fully preserved. B. Rule 54(b) Ritz-Canton, meanwhile, seeks dismissal of the appeal as premature. It argues that no final, appealable judgment has been rendered because the district court has not yet resolved the case of their co-plaintiff, Megwinoff. Although the district court certified the judgments with respect to Mercado and Hebert as final under Fed.R.Civ.P. 54(b), finding that there is no just" }, { "docid": "7792701", "title": "", "text": "Rowe v. Sullivan, 967 F.2d 186, 191 (5th Cir.1992); cf. Briones, 101 F.3d at 291 (holding that “a governmental agency defendant may not have a ‘second bite at the apple’ by arguing lack of timely filing in federal court after failing to challenge an EEOC determination that the complaint was timely filed”). The EEO officer’s letter conveyed such an express finding. The letter stated that it would be treating Bruce’s complaint as timely and provided a specific reason for reaching this determination, namely its factual finding that Bruce did not become aware of the discrimination “until sometime in August/September 1998.” Although we are somewhat perplexed as to how the FBI’s EEO officer could have reached this conclusion in light the FBI’s May 4, 1998 letter informing Bruce that his offer had been rescinded because of his medical condition, the fact remains that the FBI’s EEO officer made a finding of timeliness based on a specific factual determination and communicated this finding to Bruce. The FBI’s express factual finding of timeliness distinguishes the instant case from Belgrave v. Pena, 254 F.3d 384 (2d Cir.2001). In Belgrave, we held that government agencies do not waive a timeliness defense by merely accepting and investigating a complaint. Id. at 387. Here, the FBI not only accepted and investigated Bruce’s complaint, but also made an express determination that it was timely based on a specific factual finding. Our holding in Belgrave was grounded in the policy that we should not discourage government agencies from investigating and voluntarily remedying discrimination out of trepidation that doing so would forfeit a potential defense in a future lawsuit. Id. In reaching today’s result, we offer this caution: an agency that takes the next step of explicitly finding a complaint timely and communicating that unqualified finding to the complainant cannot retreat from that finding. In no way does our ruling alter Belgrave and the solid policy concerns underlying it. We further note that this case is distinguishable from the Seventh’s Circuit hold ing in Ester v. Principi, 250 F.3d 1068 (7th Cir.2001), where the agency had issued a final decision" }, { "docid": "7792702", "title": "", "text": "Belgrave v. Pena, 254 F.3d 384 (2d Cir.2001). In Belgrave, we held that government agencies do not waive a timeliness defense by merely accepting and investigating a complaint. Id. at 387. Here, the FBI not only accepted and investigated Bruce’s complaint, but also made an express determination that it was timely based on a specific factual finding. Our holding in Belgrave was grounded in the policy that we should not discourage government agencies from investigating and voluntarily remedying discrimination out of trepidation that doing so would forfeit a potential defense in a future lawsuit. Id. In reaching today’s result, we offer this caution: an agency that takes the next step of explicitly finding a complaint timely and communicating that unqualified finding to the complainant cannot retreat from that finding. In no way does our ruling alter Belgrave and the solid policy concerns underlying it. We further note that this case is distinguishable from the Seventh’s Circuit hold ing in Ester v. Principi, 250 F.3d 1068 (7th Cir.2001), where the agency had issued a final decision on the merits of a discrimination complaint and did not raise a timeliness defense until the complainant filed suit in federal court. The Seventh Circuit “conclude[d] that when an agency decides the merit of a complaint, without addressing the question of timeliness, it has waived a timeliness defense in a subsequent lawsuit.” Id. at 1071-72. Our holding does not suggest any disagreement with the rule established in Ester, which we regard as sound. Although the FBI did not determine the merits of Bruce’s complaint and merely issued a summary of its findings in an investigative report, the lessons of Ester do not address a situation where a government agency makes a specific finding of timeliness and communicates that to a complainant. Therefore, while we consider Ester to be good law, it does not apply in this case. We have considered all remaining arguments. We reverse the judgment of the District Court and remand for proceedings consistent with this opinion." }, { "docid": "15008625", "title": "", "text": "[written] notice” of a right to file a discrimination complaint — not from the date of the final interview. The record offered by defendants does not provide the date of plaintiffs receipt of the notice. Moreover, the Court finds it plausible that the administrative complaint covering the travel and nonpromotion claims was timely, given the date of the final counseling interview (December 16, 1998), the filing date of plaintiffs administrative complaint (January 14, 1999), and the lag time that often accompanies the preparation of paperwork during the winter holiday period and the U.S. mail. Hence, defendants have failed to establish, on the present record, that plaintiff failed to exhaust his administrative remedies. Second, and more significantly, plaintiff has raised a serious issue as to whether defendants have waived this defense by issuing a final agency decision on the merits. Under Bowden v. United States, 106 F.3d 433, 438 (D.C.Cir.1997), an agency waives the exhaustion defense if it accepts and investigates a discrimination complaint, and also “decide[s] it on the merits — all without mentioning timeliness.” Defendants contend that Bowden is a narrow decision that is “expressly limited to the facts of the case,” referring to the agency’s excessive delay in Bowden in raising the defense in judicial proceedings. Defs.’ Reply at 3. To be sure, the court highlighted the egregious delays by the agency in Bowden in raising the exhaustion defense in district court. Bowden, 106 F.3d at 439. However, the rationale of Bowden rests primarily on the agency having responded to the employee’s claim on the merits during the admin istrative process without raising timeliness: “Because [the agency] responded to the merits of [the employee’s administrative] complaint without ever questioning its timeliness, we think the agency now has no legitimate reason to complain about a judicial decision on the merits. Had it been concerned that information needed to resolve [the employee’s] complaint was stale or that deciding his case would upset settled expectations — traditional objectives of statutes of limitations — it could easily have raised the [time] limitation during the administrative process. What we have repeatedly stated regarding" }, { "docid": "7039291", "title": "", "text": "contact with an EEO counselor within 45 days of the alleged discrimination is not a jurisdictional prerequisite. McFarland, 307 F.3d at 406. As such, it is subject to waiver, estoppel, and equitable tolling. Id. Five of our sister circuits have held that when an agency accepts and investigates a complaint of discrimination, as the Postal Service did in this case, it does not thereby waive a defense that the complaint was untimely. See Belgrave v. Pena, 254 F.3d 384, 387 (2d Cir.2001); Ester v. Principi, 250 F.3d 1068, 1072 n. 1 (7th Cir.2001); Bowden v. United States, 106 F.3d 433, 438 (D.C.Cir.1997); Rowe v. Sullivan, 967 F.2d 186, 191 (5th Cir.1992); Boyd v. U.S. Postal Serv., 752 F.2d 410, 414 (9th Cir.1985). Rather, waiver occurs when the agency decides the complaint on the merits without addressing the untimeliness defense. Ester, 250 F.3d at 1071-72; Bowden, 106 F.3d at 438. When Horton had his initial interview with the EEO counselor on May 19, 1993, he completed a form entitled “EEO Request for Counseling” in which he alleged discriminatory acts occurring less than two weeks before on May 6, 1993. On the face of his request for counseling, therefore, it was not apparent that Horton had failed to initiate contact with the EEO counselor within the 45-day time period mandated by 29 C.F.R. § 1614.105(a)(1). It was not until discovery had taken place at the district court level that the Postal Service became aware that no discriminatory act occurred on May 6, 1993, and that Horton’s complaint was, therefore, untimely. The procedural posture of the case, as recounted by the district court, gave the Postal Service no earlier opportunity, at the administrative level, to adjudicate Horton’s claim on the merits and discover the basis for the untimeliness defense. Horton, in effect, urges this court to hold that upon receiving and investigating his complaint of discrimination, but before considering it on its merits, the Postal Service waived all affirmative defenses in the subsequent lawsuit. Besides conflicting with the reasoning of our sister circuits, such a holding would remove any incentive for government agencies" } ]

[ { "docid": "18528218", "title": "", "text": "witness; this is no longer true. Interest in the outcome of a proceeding has long since ceased to be a basis upon which to disqualify witnesses. Although interest may affect the credibility of testimony, it does not affect competency to testify. Dixie Ohio Express Co. v. Lowery, 115 F.2d 56, 57 (5th Cir.1940). In Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990), we wrote “when a veteran seeks benefits and the evidence is in relative equipoise, the law dictates that the veteran prevails.” See 38 C.F.R. § 3.303(d) (1991). Appellant’s sworn statement, then, unless sufficiently-rebutted, may serve to place the evidence in equipoise. This Court’s function is not to make factual determinations, but to decide whether the BVA’s factual determinations constitute clear error. Gilbert v. Derwinski, at 52 (1990). Such a determination, however, requires a decisional document which allows for effective judicial review. Consequently, the BVA is required, under 38 U.S.C. § 7104(d)(1) (formerly § 4004), to articulate reasons or bases for its decision. The BVA decision at hand contains neither an analysis of the credibility or probative value of the evidence submitted by the veteran, nor a statement of the reasons or bases for the Board’s implicit rejection of this evidence and its conclusion that the doctrine of reasonable doubt was inapplicable. Appellant has never been provided with a satisfactory explanation by the BVA as to why it did not find his sworn testimony credible, especially why, under “the benefit of the doubt” rule in 38 U.S.C. § 5107(b) (formerly § 3007), the evidence was not at least in relative equipoise, in which case “the law dictates that [the claimant] prevails”. Gilbert, at 54. The Board should have weighed and considered appellant’s testimonial evidence and decided whether his testimony was credible. Accordingly, the decision of the BVA is REVERSED and the matter is REMANDED pursuant to 38 U.S.C. § 7252(a) (formerly § 4052(a)). The BVA is directed to comply promptly with the requirement of 38 U.S.C. § 7104(d)(1) (formerly § 4004(d)(1)) that its findings and conclusions be accompanied by “reasons or bases” adequate to explain to the veteran and," } ]

[ { "docid": "23651626", "title": "", "text": "possibility that the outcome of the claim on the merits would be changed (see ibid.)1 As Blackburn indicated, affirmative answers to both questions 2 and 3 — involving the probative nature of the “new” evidence and the reasonable possibility of outcome change, respectively — are required in order for “new” evidence to' be “material”_ Blackburn, 8 Vet.App. at 102. As to those two “materiality” components, the credibility of the newly presented evidence is generally presumed under Justus [v. Principi, 3 Vet.App. 510, 513 (1992)] and Duran, ... supra. In looking at the first materiality component (whether the evidence found to be “new” is also probative) the focus is on the new evidence; as to the second materiality component (whether there is a reasonable possibility that the outcome on the merits would be changed), the focus is on all of the evidence of record rather than just on the new evidence. See Struck and Blackburn, both supra; Glynn [6 Vet.App. at 528-29]; Cox and Colvin, both supra. Evans, 9 Vet.App. at 283. A Board determination as to whether evidence is “new and material” is a question of law subject to de novo review by this Court under 38 U.S.C. § 7261(a)(1). See Struck, supra, Evans, 9 Vet.App. at 283; Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin, supra; cf. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed.Cir.1996) (determination whether or not new and material evidence had been submitted was one of “application of law to the facts of this case”). A claim of CUE must be “based on ... the law that existed at the time of the prior [RO] decision” being collaterally attacked. Russell, 3 Vet.App. at 314. At the time of the three RO decisions — in 1985, 1986, and 1987 — that are the subject of CUE collateral attack in this case — the law applicable to reopening final RO disallowances was set forth in 38 U.S.C. § 4004(b) (1982) and 38 C.F.R. § 3.156 (the regulation remained unchanged from 1963 to 1990). See Spencer v. Brown, 4 Vet.App. 283, 289-90 (1993)," }, { "docid": "1104140", "title": "", "text": "ears should be service connected because both had shown the same pattern of in-service hearing loss followed by continued post-service hearing loss due to in-service noise trauma. R. at 122; see also 124-25. In the June 16, 1993, BVA decision here on appeal, the Board determined that the evidence presented by the veteran was new but was not material because the 1971 and 1979 audiograms did not provide the required nexus between right-ear hearing loss and a disease or injury incurred in service, and denied reopening of the claim. R. at 5-6. II. Analysis A. Applicable Law The Secretary must reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured with respect to that claim. See 38 U.S.C. §§ 5108, 7104(b). On a claim to reopen a previously and finally disallowed claim, the BVA must conduct a “two-step analysis” under section 5108. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is new and material “when viewed in the context of all the evidence, both new and old”, Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), and presuming “the credibility of the [new] evidence”, Justus v. Principi, 3 Vet.App. 510, 513 (1992). If the evidence is new and material, the Board must then review it on the merits “in the context of the other evidence of record” to determine whether the prior disposition of the claim should be altered. Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). The Court has synthesized the applicable law as follows: “New” evidence is that which is not merely cumulative of other evidence of record. “Material” evidence is that which is relevant to and probative of the issue at hand and which, as this Court stated in Colvin, supra ... must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox (Billy) v. Brown," }, { "docid": "3717526", "title": "", "text": "status as a benefits-eligible claimant. We now hold that a VA benefits recipient or claimant who has been the subject of a final decision declaring forfeiture of eligibility for VA benefits may have that final decision reopened upon the presentment of new and material evidence or revised based on a finding of CUE in the original forfeiture decision. D. Applying the New-and-Material-Evidence Standard to Reopen Declarations of Forfeiture In this case, the Board applied the criteria for reopening on the basis of new and material evidence enunciated in Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991) (requiring that “material” evidence be “relevant [to] and probative of the issue at hand” and present a “reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome”). See also Sutton v. Brown, 9 Vet.App. 553, 562 (1996); Evans v. Brown, 9 Vet.App. 273, 283 (1996); Cox v. Brown, 5 Vet.App. 95, 98 (1993); Justus v. Principi, 3 Vet.App. 510, 513 (1992). However, the Colvin materiality test was overruled by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Hodge for purposes of reopening disallowed claims for veterans’ benefits. Hodge, supra. In Hodge, the Federal Circuit held that the VA regulation on reopening, 38 C.F.R. § 3.156(a), provided a reasonable interpretation of the materiality requirement of 38 U.S.C. § 5108 “for purposes of reopening claims for the award of veterans’ benefits.” Id. at 1362. Recognizing the pro-claimant environment created by the general VA stat utory scheme, the Federal Circuit determined that the application of concepts such as were involved in the Social Security adjudication process, which the Federal Circuit characterized as a system that was not designed to be “strongly and uniquely pro-claimant” — in this instance a requirement that there must be a reasonable possibility that new evidence would change the outcome of the claim — was inappropriate. The Federal Circuit expressed a concern that applying such a strict standard to the VA nonadversarial process might undermine the intended operation of the veterans’ benefits system by altering its" }, { "docid": "1069542", "title": "", "text": "and someone else is, by itself, not dispositive. Certainly, the fact of an illicit relationship is relevant as to whether the cohabitation was continuous. However, whether such a relationship by a spouse would defeat the requirement of continuous cohabitation would depend on the duration, frequency, and conditions of the illicit relationship. Short, clandestine, and infrequent meetings, that were merely trysts with a lover, would not necessarily mean that a concurrent state of continual cohabitation could not or did not exist with the wronged spouse. The RO’s 1953 adjudication, which terminated appellant’s DIC payments, was final and could be reopened only upon the presentment of “new and material” evidence. See 38 U.S.C. §§ 5108, 7104(b). In Manio v. Derwinski, 1 Vet.App. 140 (1991), this Court established that the BVA must perform a two-step analysis when the veteran seeks to reopen a claim based upon new evidence. First, the BVA must determine if the veteran has submitted “new and material” evidence. .If so, the Board must review “the veteran’s claim in light of all the evidence, both new and old.” Id. at 145. For this purpose, the credibility of the evidence may generally be presumed. See Justus v. Principi, 3 Vet.App. 510, 513 (1992). “New” evidence is “that which is not merely cumulative of other evidence of record.” Cox v. Brown, 5 Vet.App. 95, 98 (1993). “Material” evidence is relevant to and probative of the issue at hand, and of sufficient weight and significance that there is a reasonable possibility that the new evidence, when considered in light of all the evidence, would change the outcome. Id.; see Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Whether evidence submitted to reopen a previously disallowed claim is “new and material” under 38 U.S.C. § 5108 is a question of law which this Court reviews de novo. See Colvin, 1 Vet.App. at 174; Masors v. Derwinski, 2 Vet.App. 181, 185 (1992). Appellant’s newly submitted evidence consists of her testimony from the May 1990 personal hearing, and an affidavit from 85 villagers attesting that appellant and the veteran continuously lived together until the veteran’s death." }, { "docid": "1104141", "title": "", "text": "new and material “when viewed in the context of all the evidence, both new and old”, Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), and presuming “the credibility of the [new] evidence”, Justus v. Principi, 3 Vet.App. 510, 513 (1992). If the evidence is new and material, the Board must then review it on the merits “in the context of the other evidence of record” to determine whether the prior disposition of the claim should be altered. Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). The Court has synthesized the applicable law as follows: “New” evidence is that which is not merely cumulative of other evidence of record. “Material” evidence is that which is relevant to and probative of the issue at hand and which, as this Court stated in Colvin, supra ... must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox (Billy) v. Brown, 5 Vet.App. 95, 98 (1993). In determining whether evidence is material, relevant statutes and regulations must be examined. See Chavarria v. Brown, 5 Vet.App. 468, 471 (1993) (Court examined statutes and regulations to determine if new ly submitted evidence created a reasonable possibility that the veteran did not engage in willful misconduct — which would disqualify him for the benefits at issue). A Board determination as to whether evidence is “new and material” is a question of law subject to de novo review by this Court under 38 U.S.C. § 7261(a)(1). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin, supra. To establish service connection, a veteran of a period of war, as defined in 38 U.S.C. § 101(11), must show either that a disability was manifested or aggravated during service (or during an applicable presumption period thereafter) and exists today, or that a current disability resulted from a disease or injury incurred in service, even if that disease or injury was not manifested during service. See 38 U.S.C." }, { "docid": "10148543", "title": "", "text": "Derwinski, 1 Vet.App. 210, 215 (1991). In this case, which was decided prior to this Court’s decision in Manió, supra, the Board did not apply the two-step test for adjudicating claims to reopen previously and finally denied claims. Instead, it stated the issue as “whether the additional evidence presented creates a new factual basis warranting allowance of service connection”, and concluded that “the additional evidence consisting of personal hearing testimony does not reasonably establish that the veteran’s multiple sclerosis is the result of his active service.” Spencer, BVA 90-25138, at 6. Because the BVA did not apply the two-step Manió test, it is not clear from its decision whether the Board concluded that there was new and material evidence to reopen the veteran’s claim for service connection of his MS. The determination as to whether evidence is “new and material” is a conclusion of law which this Court reviews de novo under 38 U.S.C.A. § 7261(a)(1) (West 1991). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Evidence is new if it is not “merely cumulative” of evidence already in the record. Colvin, supra. Evidence is “material” if it is “relevant [to] and probative of the issue at hand” and there is “a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Colvin, supra. The only evidence received by VA after the 1987 final BVA decision was the 1990 sworn testimony of the veteran and his wife. That testimony is no more than a reiteration of testimony and lay statements that were before the Board at the time it rendered its prior decisions. R. at 8-9, 25, 34, 38-39, 41-67, 100, 106-18. Therefore, subject to the discussion in part C., below, the 1990 testimony is merely cumulative of evidence previously of record, and it cannot be considered “new and material” so as to justify reopening the veteran’s claim. (Indeed, the appellant’s counsel so conceded at oral argument.) Subject to the same caveat, the" }, { "docid": "10210613", "title": "", "text": "Secretary must reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured with respect to that claim. On claims to reopen previously and finally disallowed claims, the BVA must conduct a “two-step analysis”. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material”. Ibid. If the evidence is new and material, the Board must then review the new evidence “in the context of” the old to determine whether the prior disposition of the claim should be altered. See Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). “New” evidence is evidence which is not “merely cumulative” of other evidence in the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Evidence is “material” when it is “relevant [to] and probative of the issue at hand” and there is “a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Colvin, supra. In determining whether evidence is new and material, “the credibility of the evidence must be presumed.” Justus v. Principi, 3 Vet.App. 510, 513 (1992). The determination whether evidence is “new and material” is a conclusion of law which the Court reviews de novo under 38 U.S.C.A. § 7261(a)(1) (West 1991). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin, supra. The BVA decision is ambiguous as to whether the Board denied the claim on the basis that there was no new and material evidence to reopen or whether it reopened the claim and denied benefits based on review of all the evidence. For the reasons stated below, the Court holds that there was new and material evidence requiring the Board to reopen and readjudicate the claim. Service connection for the PTB may be established by showing that it was initially manifest during the veteran’s active service or that active PTB was manifest to a degree of 10% or more within the three-year presumption period" }, { "docid": "23607630", "title": "", "text": "52, 54)), might reasonably be construed as that earlier manifestation. Under this analysis, I would hold that there was a “reasonable possibility” that this evidence could “change the outcome”. Indeed, since the VARO concluded that an “active psychosis” had been manifested as of November 1974, it would seem difficult for the BVA to conclude otherwise as to that issue. That would seem to be the law of the case as to when active psychosis was present in this veteran. Accordingly, I conclude that the evidence was new and material for the purpose of reopening the claim under section 5108. I stress that my position is not that the outcome should be changed, or that the failure to change it would be a clearly erroneous fact determination by the Board. Rather, I am merely applying the Colvin standard, and its injunction that “the ‘benefit of the doubt’ standard ... necessarily lowers the threshold of whether the new and material evidence is sufficient to change the outcome”, Colvin, at 174, to the facts of this case in order to decide the question of law as to materiality. I am not, as the majority asserts, ante at 545-46, “ ‘bootstrapping]’ the appellant into the one year presumption found in 38 C.F.R. § 3.307.” Nor am I finding the facts. I am attempting to discern what would have been a plausible reading of the evidence for the purposes of determining the materiality of the new evidence. B. Failure to State “Reasons or Bases” Having concluded that the claim was properly reopened, I move to the issue of the Board’s compliance with the applicable law and regulations. As this Court stated in Moore v. Derwinski, 1 Vet.App. 401, 404 (1991): Beginning with Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990), this Court has consistently held that in order to enable a claimant to understand a decision and the reasons behind it, as well as to assist in judicial review, the BVA is required by 38 U.S.C. § 7104(d)(1) to include in its decision “a written statement of [its] findings and conclusions, and the reasons or" }, { "docid": "10150476", "title": "", "text": "not doubt the honesty of Dr. Estes. The presumption of credibility of the evidence does not come into play. See Justus v. Principi, 3 Vet.App. 510, 513 (1992). Rather, the issue here is the basis upon which Dr. Estes’ statements were made, i.e., appellant’s own account of his medical history and service background, recitations which have already been rejected by the RO and BVA. On the facts presented, we hold that Dr. Estes’ statements are not “material” evidence. The Court concludes, therefore, that the BVA was correct in finding that no new and material evidence had been presented. III. Conclusion Accordingly, the Secretary’s motion is GRANTED and the BVA decision is AFFIRMED. STEINBERG, Judge, dissenting: I respectfully dissent because I am unable to agree with the majority’s conclusion that the appellant has failed to submit new and material evidence so as to require that the claim be reopened and adjudicated on the basis of all the evidence, new and old, under 38 U.S.C.A. § 5108 (West 1991). See Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 213 (1991); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). In so concluding, the Court rejects as not “material” a medical opinion by a treating physician that his patient currently suffers from a psychiatric problem that, based (as the majority concludes) on what the patient recounted to him about in-service treatment and symptoms, is connected to his service 20 years before. For the reasons that follow, I believe that the majority’s analysis is inconsistent with both the record on appeal and this Court’s precedents, and will sow great confusion in the adjudication process throughout the Department of Veterans Affairs (VA). I. Law on Reopening Under 38 U.S.C.A. § 7104(b) (West 1991), a claim previously and finally denied by the Board of Veterans’ Appeals (BVA or Board) may not be reopened except in accordance with section 5108. On claims to reopen previously and finally denied claims, the Board must conduct a “two-step analysis” under section 5108. Manio, supra. First, it must determine whether the evidence presented or secured" }, { "docid": "10214843", "title": "", "text": "in the context of all the evidence, both new and old, would change the outcome.” Ibid; see Jones, supra. For purposes of determining whether evidence is “new and material”, “the credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet.App. 510, 513, No. 91-1596, slip op. at 4 (1992). The determination as to whether evidence is “new and material” is a conclusion of law which this Court reviews de novo under 38 U.S.C. § 7261(a)(1) (formerly § 4061). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin, supra. On the facts of this case, the Court holds that the three lay statements and the veteran’s testimony, assuming their credibility for purposes of determining whether they were “new and material”, were probative and, when considered in the context of all the evidence, new and old, created a reasonable possibility of changing the outcome. Hence, there was new and material evidence to justify reopening the claim on August 17,1989, if it is determined that the August 3,1989, NOD was not a valid NOD as to the original claim. E. The BVA’s Adjudication Accordingly, the Board had jurisdiction and was obligated to adjudicate the claim on the merits in accordance with all applicable law and regulation — either as a reopened claim under Manió and Jones, or as an original claim if the August 3, 1989, NOD is determined to be valid. The Court holds that the adjudication process was infected by two prejudicial errors: The Board’s failure to provide adequate reasons or bases for its evaluation of the veteran’s testimony and the lay statements, and to address the veteran’s requests for assistance in locating additional service medical records. First, under 38 U.S.C. § 7104(d)(1) (formerly § 4004), the Board must provide a written statement of the reasons or bases for its findings and conclusions. See Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). Here, the Board stated that the veteran’s sworn testimony and the lay statements do not provide a “persuasive” basis for a grant of service connection, “in light of the entire" }, { "docid": "10214842", "title": "", "text": "thereafter. R. At 85-89. Pursuant to 38 U.S.C. § 5108, a previously and finally disallowed claim must be reopened by the Secretary when “new and material evidence” is presented or secured with respect to that claim. See 38 U.S.C. § 7104(b) (formerly § 4004). On claims to reopen previously and finally disallowed claims, the BVA must conduct a “two-step” analysis. Manió v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material”. If it is, the Board must then review the new evidence “in the context of” the old to determine whether the prior disposition of the claim should be altered. Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). “New” evidence is evidence which is not “merely cumulative” of other evidence in the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). For evidence to be “material”, it must be “relevant and probative” and “there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Ibid; see Jones, supra. For purposes of determining whether evidence is “new and material”, “the credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet.App. 510, 513, No. 91-1596, slip op. at 4 (1992). The determination as to whether evidence is “new and material” is a conclusion of law which this Court reviews de novo under 38 U.S.C. § 7261(a)(1) (formerly § 4061). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin, supra. On the facts of this case, the Court holds that the three lay statements and the veteran’s testimony, assuming their credibility for purposes of determining whether they were “new and material”, were probative and, when considered in the context of all the evidence, new and old, created a reasonable possibility of changing the outcome. Hence, there was new and material evidence to justify reopening the claim on August 17,1989, if it is determined that the August 3,1989, NOD" }, { "docid": "1069543", "title": "", "text": "new and old.” Id. at 145. For this purpose, the credibility of the evidence may generally be presumed. See Justus v. Principi, 3 Vet.App. 510, 513 (1992). “New” evidence is “that which is not merely cumulative of other evidence of record.” Cox v. Brown, 5 Vet.App. 95, 98 (1993). “Material” evidence is relevant to and probative of the issue at hand, and of sufficient weight and significance that there is a reasonable possibility that the new evidence, when considered in light of all the evidence, would change the outcome. Id.; see Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Whether evidence submitted to reopen a previously disallowed claim is “new and material” under 38 U.S.C. § 5108 is a question of law which this Court reviews de novo. See Colvin, 1 Vet.App. at 174; Masors v. Derwinski, 2 Vet.App. 181, 185 (1992). Appellant’s newly submitted evidence consists of her testimony from the May 1990 personal hearing, and an affidavit from 85 villagers attesting that appellant and the veteran continuously lived together until the veteran’s death. Appellant’s recent testimony denying any relationship with her paramour until after her husband’s death contradicts her former sworn statement made some 30 years ago, which was contemporaneous with the events and was consistent with a sworn statement from her now deceased paramour. Given these facts, the Board’s decision not to reopen based on appellant’s most recent and obviously self-serving statement, which was largely cumulative anyway, was not incorrect. There is no reasonable possibility that her more recent statement, in face of all the other and more contemporaneous evidence, would change the outcome. However, the Board entirely omitted consideration and discussion of the affidavit of her fellow villagers which, if true, a matter for the fact finder to determine, tends to corroborate the 1953 testimony of appellant and her paramour that she lived continuously with the veteran until his death. While a “group” affidavit may be considered with some degree of skepticism, it cannot be totally ignored. The failure of the Board to consider this evidence and give reasons or bases for its acceptance or rejection" }, { "docid": "10210614", "title": "", "text": "change the outcome.” Colvin, supra. In determining whether evidence is new and material, “the credibility of the evidence must be presumed.” Justus v. Principi, 3 Vet.App. 510, 513 (1992). The determination whether evidence is “new and material” is a conclusion of law which the Court reviews de novo under 38 U.S.C.A. § 7261(a)(1) (West 1991). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin, supra. The BVA decision is ambiguous as to whether the Board denied the claim on the basis that there was no new and material evidence to reopen or whether it reopened the claim and denied benefits based on review of all the evidence. For the reasons stated below, the Court holds that there was new and material evidence requiring the Board to reopen and readjudicate the claim. Service connection for the PTB may be established by showing that it was initially manifest during the veteran’s active service or that active PTB was manifest to a degree of 10% or more within the three-year presumption period following his separation from service. See 38 U.S.C.A. §§ 1110, 1112(a)(3) (West 1991); 38 C.F.R. §§ 3.303(b), 3.307(a)(3) (1992). Furthermore, when the disease was not initially manifested during service or within the applicable presumption period, “direct” service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred or aggravated during the veteran’s service. See 38 U.S.C.A. § 1113(b) (West 1991); 38 C.F.R. § 3.303(d) (1992); Cosman v. Principi, 3 Vet.App. 503, 505 (1992); Triplette v. Prin-cipi, 4 Vet.App. 45, 50 (1993); Godfrey v. Derwinski, 2 Vet.App. 352, 356 (1992); Douglas v. Derwinski, 2 Vet.App. 103, 108-09 (1992). In the instant case, the evidence received by the RO since its prior final January 1952 denial of the claim includes medical opinions from pulmonary specialists that it is “possib[le]” or “somewhat probable” that active PTB was present at appellant’s separation. from service, and that it is “most likely” that the PTB was reactivated between 1945 and 1950. R. at 113-15. This evidence is not duplicative of any evidence previously in the record," }, { "docid": "1070428", "title": "", "text": "in the record, and material when relative to and probative of the issue at hand, and of sufficient weight to present a reasonable possibility that the new evidence, when viewed in the context of all the evidence, new and old, would change the disposition of the claim. See, e.g., Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Cox v. Brown, 5 Vet.App. 95, 98 (1993); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); see also Manió, supra. Whether evidence is new and material is a question of law this Court reviews de novo. See Spencer, 4 Vet.App. at 287; Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); see also 38 U.S.C. § 7261(a)(1). At this stage, the Board is precluded from considering the credibility of the newly submitted evidence; strictly for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence is credible. See Justus v. Principi, 3 Vet.App. 510, 513 (1992); see also Cuevas v. Principi, 3 Vet.App. 542, 547-48 (1992). This is not to say that the Justus credibility rule is boundless or blind; if the newly submitted evidence is inherently false or untrue, for example, a male veteran’s testimony that his alleged service-connected disabilities are the result of complications associated with having given birth, the Justus credibility rule simply would not apply. As the author of Justus has subsequently noted, “[t]he evil pointed to in Justus [was the] weighing and evaluating [of] new evidence in a vacuum.” Guimond v. Brown, 6 Vet.App. 69, 72 (1993). Justus does not require the Secretary to consider the patently incredible to be credible. Moreover, any presumption of credibility required by Justus during the first step of the Manio two-step process is inapplicable during the second step when the claim is adjudicated de novo by evaluating both the weight and credibility of all the evidence of record. See Justus, 3 Vet.App. at 513. There is also the issue of what evidence is to be considered in conducting the first part of the Manió test. Many, if not most, unsuccessful attempts to reopen" }, { "docid": "10150478", "title": "", "text": "since the pertinent prior final disallowance is “new and material”. Ibid. If it is, the Board must then adjudicate the claim on the basis of all the evidence, both new and old. See Jones, supra. The determination as to whether evidence is “new and material” is a question of law, which this Court reviews de novo under 38 U.S.C.A. § 7261(a)(1) (West 1991). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin, supra. The Court recently synthesized the applicable law as follows: “New” evidence is that which is not merely cumulative of other evidence of record. “Material” evidence is that which is relevant to and probative of the issue at hand and which, as this Court stated in Colvin, supra, ... must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993). See also Justus v. Principi, 3 Vet.App. 510, 513 (1992) (in determining whether evidence is new and material “the credibility of the evidence is to be presumed”). II. Post-July 1990 Evidence In the instant case, the majority concludes that no new and material evidence has been submitted since the BVA’s July 1990 prior final disallowance of the veteran’s psychiatric-disorder claim and that, therefore, the Board was not required to proceed to the section 5108 step-two full adjudication of that claim. I agree with the majority that, of the evidence submitted after the July 1990 BVA denial of the veteran’s claim, item (2) is not “new” and items (1), (3), and (5) are not “material”. I cannot agree, however, with the majority’s conclusion that Dr. Estes’ August 1990 and January 1991 letters are not, taken together, “material”. A. The Court’s Factfinding The Court has drawn inferences from the record as to Dr. Estes’ two letters that are not supported by the evidence. As to the Court’s statement that “neither letter contains a current diagnosis of a psychiatric disorder”, ante" }, { "docid": "10137257", "title": "", "text": "The “new” evidence is a statement executed in October 1989 by Mr. C.D. Ezell, averring that he noted a “fungus infection” of the appellant’s feet in 1944 during the time he and the claimant served together in the Army. The Board found this evidence to be “new” but not “material” and accordingly refused to reopen the claim. Before deciding not to reopen the claim, however, the Board thoroughly and carefully reviewed this new evidence in the context of all the evidence, both new and old.. Citing this Court’s decision in Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), the Board found that there was no reasonable possibility that this statement, based as it was on recall of some 45 years, would change the result. This evidence, in the Board’s view, was “not as convincing as the veteran’s service medical records and discharge examinations which show no skin condition of the feet. Similarly, no skin condition of the feet was shown during a reemployment examination in November 1945 ...” Harry B. Kates, BVA 92-_, at 5 (Jan. 10, 1992). Accordingly, the Board found the “new” evidence not “material” and denied “the benefit sought on appeal.” ANALYSIS The Board’s 1989 decision, which denied appellant’s claim for fungal infection of his feet, was final and could be reopened only upon the presentment of “new and material” evidence. If “new and material” evidence is presented or secured, the claim must be reopened and readjudicated. See 38 U.S.C.A. §§ 5108, 7104 (West 1991). Of course, if there is “new and material” evidence, that does not necessarily mean that the claimant “wins”; its presentment only compels the reopening and readjudication of the claim. See Manio v. Derwinski, 1 Vet.App. 140, 145-46 (1991); Justus v. Principi, 3 Vet.App. 510, 512-13 (1992). “New” evidence is that which is relevant to and probative of the issue at hand which to be material must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in context of all the evidence, both new and old, would change the outcome. Colvin," }, { "docid": "10150477", "title": "", "text": "213 (1991); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). In so concluding, the Court rejects as not “material” a medical opinion by a treating physician that his patient currently suffers from a psychiatric problem that, based (as the majority concludes) on what the patient recounted to him about in-service treatment and symptoms, is connected to his service 20 years before. For the reasons that follow, I believe that the majority’s analysis is inconsistent with both the record on appeal and this Court’s precedents, and will sow great confusion in the adjudication process throughout the Department of Veterans Affairs (VA). I. Law on Reopening Under 38 U.S.C.A. § 7104(b) (West 1991), a claim previously and finally denied by the Board of Veterans’ Appeals (BVA or Board) may not be reopened except in accordance with section 5108. On claims to reopen previously and finally denied claims, the Board must conduct a “two-step analysis” under section 5108. Manio, supra. First, it must determine whether the evidence presented or secured since the pertinent prior final disallowance is “new and material”. Ibid. If it is, the Board must then adjudicate the claim on the basis of all the evidence, both new and old. See Jones, supra. The determination as to whether evidence is “new and material” is a question of law, which this Court reviews de novo under 38 U.S.C.A. § 7261(a)(1) (West 1991). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin, supra. The Court recently synthesized the applicable law as follows: “New” evidence is that which is not merely cumulative of other evidence of record. “Material” evidence is that which is relevant to and probative of the issue at hand and which, as this Court stated in Colvin, supra, ... must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993). See also Justus" }, { "docid": "1104147", "title": "", "text": "enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Masors, 2 Vet.App. at 188; Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Abernathy v. Principi, 3 Vet.App. 461, 465 (1992); Simon, supra; Peyton v. Derwinski, 1 Vet.App. 282, 285 (1991); Hatlestad v. Derwinski, 1 Vet.App. 164, 169 (1991); Gilbert, supra. B. Application of Law to Facts 1. Amended 38 C.F.R. § 3.385: As noted above, in order to decide whether the Court is required to apply the amended 38 C.F.R. § 3.385, adopted in November 1994 during the pendency of this appeal, to the veteran’s pending appeal for the purpose of determining whether there was new and material evidence to reopen the veteran’s right-ear hearing-loss claim, it is necessary to examine whether the amended § 3.385 would be “more favorable” to the veteran in reopening his claim to establish service connection for right-ear hearing loss. The evidence submitted to the RO by the veteran following the 1991 BVA decision consisted of copies of the private 1971 and 1979 audiograms. Those audiograms are new evidence in that they were not previously considered by the RO or the BVA. (So'is the amended regulation, see Akins v. Derwinski, 1 Vet.App. 228, 230 (1991).) The question then becomes whether those audiograms are material; that is, whether they are relevant to or probative of the issue at hand — service connection for the veteran’s right-ear hearing loss — and present a reasonable possibility that, when viewed in the context of all the evidence, both new and old, they would change the outcome of the BVA’s 1991 adverse decision on the right-ear hearing-loss claim. See Cox, supra. At" }, { "docid": "10204873", "title": "", "text": "PTSD had not been submitted. The BVA provided a summary of the evidence submitted prior to the March 1989 decision. The BVA went on to state: Evidence added to the record since [March] 1989 includes testimony offered by the veteran at a personal hearing, as well as a number of written statements which he subsequently submitted. Both oral and written evidence reiterates the veteran’s prior contentions, along with his service-related experiences. Also submitted in conjunction with his recent claim were recent VA outpatient treatment records, alternately diagnosing generalized anxiety disorder and [PTSD] with depression. We note, however, that the latter diagnosis was based upon a history related by the veteran. The Board then concluded that, after reviewing the record, “the additional evidence which claimant has submitted is neither ‘new’ nor ‘material,’ ” and “[accordingly, his claim is not reopened and the Board’s 1989 decision remains final.” II. Analysis The sole issue before this Court is whether new and material evidence was presented subsequent to the May 1989 BVA decision. If there was such evidence, the Board was in error in not reopening the claim and readjudicating. On the other hand, if the evidence presented by appellant in his attempt to reopen his claim was not both new and material, the 1989 decision denying appellant’s claim was final; the Board would have no authority to reopen. See 38 U.S.C.A. § 7104(b) (West 1991). New evidence is that which is not merely cumulative of other evidence of record. Material evidence is that which is relevant to and probative of the issue at hand and which (assuming its credibility) must be of sufficient weight or significance that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993); Justus v. Principi, 3 Vet.App. 510, 512-13 (1992). The Board in the case sub judice found the evidence to be cumulative; it also determined that the “new” evidence was not material because when it is viewed in the context of all the" }, { "docid": "10148544", "title": "", "text": "1 Vet.App. 171, 174 (1991). Evidence is new if it is not “merely cumulative” of evidence already in the record. Colvin, supra. Evidence is “material” if it is “relevant [to] and probative of the issue at hand” and there is “a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Colvin, supra. The only evidence received by VA after the 1987 final BVA decision was the 1990 sworn testimony of the veteran and his wife. That testimony is no more than a reiteration of testimony and lay statements that were before the Board at the time it rendered its prior decisions. R. at 8-9, 25, 34, 38-39, 41-67, 100, 106-18. Therefore, subject to the discussion in part C., below, the 1990 testimony is merely cumulative of evidence previously of record, and it cannot be considered “new and material” so as to justify reopening the veteran’s claim. (Indeed, the appellant’s counsel so conceded at oral argument.) Subject to the same caveat, the claim should not have been reopened and any error attendant on the Board’s failure to apply the proper standards in its adjudication of the claim is harmless. See 38 U.S.C.A. § 7261(b) (West 1991); Kehoskie v. Derwinski, 2 Vet.App. 31, 34 (1991); Godwin v. Derwinski, 1 Vet.App. 419, 425 (1991); Thompson v. Derwinski, 1 Vet.App. 251, 254 (1991). Although the appellant conceded at oral argument that there was no “new and material evidence”, as those terms have been construed by this Court in its prior decisions, to reopen his claim, he asserts that the Board was required to review his claim de novo, and presents two arguments in support of that assertion. First, the appellant argues that, pursuant to 38 U.S.C.A. § 5110(g) and 38 C.F.R. § 3.114(a) (1992), VA is required to review previously and finally denied claims de novo when there has been an intervening liberalization of a law affecting entitlement to benefits, and that the VJRA is such a liberalizing law. Therefore, the appellant asserts, the VJRA enactment in 1988 requires VA," } ]

[ { "docid": "7094892", "title": "", "text": "1, 18, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). If he refuses to consider the exhausted issues, he is “severely limit[ing] the scope of the federal habeas corpus statute.” Roberts v. LaVallee, supra, 389 U.S. at 43, 88 S.Ct. at 196. However, where the unexhausted claims are either unrelated to the principal exhausted claim or frivolous, the desirability of including all grounds for habeas corpus in a single petition does not outweigh the interests of a prisoner in obtaining prompt federal consideration of exhausted claims. United States ex rel. Boyance v. Myers, 372 F.2d 111, 112 (3 Cir. 1967). We wish to express our thanks to Mr. Peter Lushing for the preparation undertaken in connection with this appeal and the presentation thereof. Reversed and remanded for consideration of petitioners’ State exhausted claims. . People v. Levy, 15 N.Y.2d 910, 258 N.Y.S.2d 646, 206 N.E.2d 653 (1965). . After the dismissal of the first petition, D’Antonio brought another petition, claiming prejudicial publicity at trial. The present petition was brought while the other application was pending. The prejudicial publicity claim was dismissed for failure to exhaust available State remedies. . This Court often has considered only the exhausted claims in a petition which included both exhausted and unexhausted claims. See United States ex rel. Wilson v. LaVallee, 367 F.2d 351 (2 Cir. 1966); United States ex rel. Tangredi v. Wal-lack, 343 F.2d 752 (2 Cir. 1965); United States ex rel. Krzywosz v. Wilkins, 336 F.2d 509 (2 Cir. 1964). . In United States ex rel. Martin v. McMann, 348 F.2d 896 (2 Cir. 1965) (en banc), this Court dismissed a petition ■in toto, for the exhausted claims were directly related to the principal unexhausted claim. Accord, United States ex rel. De Flumer v. Mancusi, 380 F.2d 1018 (2 Cir. 1967); United States ex rel. McBride v. Fay, 370 F.2d 547 (2 Cir. 1966) (“ * * * our approach to whether petitioner was denied a fair trial on account of the re-reading of a co-defendant’s confession, would necessarily be affected by the Sixth Amendment claim”). But see, United States ex rel. Floyd" } ]

[ { "docid": "2040630", "title": "", "text": "state remedies in respect to this claim before seeking federal habeas corpus relief as to it. Cf., Tyler v. Swenson, 440 F.2d 621 (8th Cir. 1971). We do, however, find merit in the appellant’s third contention. This Court, on a number of occasions in the past, has approved the action of District Court judges who have decided the exhausted claims before them while dismissing other claims in the same petition as to which state remedies have not been exhausted. See, e. g., McClain v. Swenson, 435 F.2d 327 (8th Cir. 1970). Yet, at no time have we previously decided whether a District Court is required to consider those claims which have been exhausted when the petitioner has also set out grounds for relief which have not been exhausted. After carefully considering and weighing the competing interests, we have resolved here that in the absence of unusual circumstances, District Courts should be required to consider those claims as to which the petitioner has exhausted his remedies even though he also raises unrelated or frivolous claims in his petition as to which he has not exhausted his remedies. See, Hewett v. State of North Carolina, 415 F.2d 1316 (4th Cir. 1969); United States ex rel. Levy v. McMann, 394 F.2d 402 (2nd Cir. 1968). But see, Green v. Beto, 460 F.2d 322 (5th Cir. 1972); Hamilton v. Craven, 350 F.Supp. 1251, 1253 (N.D.Cal.1971) (dictum), aff’d mem., 469 F.2d 1394 (9th Cir. 1973). The primary arguments advanced against this position are that it does violence to the doctrine of comity and that it fosters piecemeal litigation. The first objection, we believe, is without merit. The exhaustion requirement is not jurisdictional but, instead, it is “merely an accommodation of our federal system designed to give the State an initial ‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights. * \" * ”. Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 30 L.Ed.2d 418 (1971) (Citation omitted.) By our decision, we do not deprive the state of this first opportunity as we only require the District Court to" }, { "docid": "22408586", "title": "", "text": "interrelated with unexhausted claims. This rule has commended itself to the judgment of five of the six circuits which have faced directly the problem of mixed petitions. Miller v. Hall, 536 F.2d 967 (1st Cir. 1976); United States ex rel. Levy v. McMann, 394 F.2d 402 (2d Cir. 1968); United States ex rel. Boyance v. Myers, 372 F.2d 111 (3d Cir. 1967) (per curiam); Hewett v. North Carolina, 415 F.2d 1316 (4th Cir. 1969); Tyler v. Swenson, 483 F.2d 611 (8th Cir. 1973), r’aff’d in Triplett v. Wyrick, 549 F.2d 57 (8th Cir. 1977). Only the Ninth Circuit adheres to the view that the majority espouses today. Gonzales v. Stone, 546 F.2d 807 (9th Cir. 1976). While the views of our sister circuits are, of course, not binding upon us, such a coincidence of considered opinion is striking. A lonely sibling bears a heavy burden of justification and explanation when it discovers new imperatives of federalism not apparent to five courts of dignity co-equal with our own. That burden has not been carried. II. The critical proposition in Judge Tjoflat’s argument for the rule of complete exhaustion is that the enforceable norm in federal habeas corpus proceedings is a single federal proceeding in which all of a petitioner’s potential claims are considered. This norm is supposedly derivable from the policies and provisions of Rule 9 of the Rules Governing Section 2254 Cases in United States District Courts, 28 U.S.C.A. foil. § 2254 (1977). The rule of complete exhaustion is asserted to be the instrument by which the norm is to be achieved. Congress has by no means accepted the majority’s critical proposition. I will quite readily concede the propriety of divining from Rule 9 the existence of a general policy favoring the resolution of all federal claims in a single federal proceeding. Insofar as the majority relies on Rule 9 for this much and no more, the court’s reasoning is unexceptionable. However, in going beyond this modest conclusion to suggest that “rule 9 forces a petitioner to assert his claims promptly and in one petition,” majority opinion at 357, (emphasis" }, { "docid": "683947", "title": "", "text": "received as exhibits. Both petitioner and respondent have had access to these exhibits and both have submitted briefs to the court. All of the files and transcripts, as well as the briefs, have been carefully considered and the various claims of the petitioner have been dealt with as follows. EXHAUSTION OF STATE JUDICIAL REMEDIES It is settled federal law that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for a Writ of Habeas Corpus. 28 U.S.C.A. section 2254(b) (1971); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Of the eleven allegations of constitutional and jurisdictional invalidity made by the petitioner, some are clearly exhausted claims and some are unexhausted. The firm rule in the Eighth Circuit is that “when a petition contains both unexhausted claims and unrelated, exhausted claims, the district court should determine those issues which have been exhausted.” Triplett v. Wyrick, 549 F.2d 57, 59 (8th Cir. 1977); Tyler v. Swenson, 483 F.2d 611, 614 (8th Cir. 1973). When, however, exhausted claims are closely intertwined with unexhausted claims, all may be returned to the state judicial system. Triplett v. Wyrick, supra; Johnson v. United States District Court for the District of Nebraska, 519 F.2d 738 (8th Cir. 1975); Blunt v. Wolff, 501 F.2d 1138 (8th Cir. 1974). Petitioner’s claims V, VI, VIII, IX and XI are clearly unexhausted, as they have never been presented to the South Dakota courts either on petitioner’s direct appeal or in his post conviction petition. S.D.C.L. section 23-52-15 (1967) provides as follows: All grounds for relief available to a petitioner under this chapter must be raised in his original, supplemental or amended petition. Any grounds not so raised or finally adjudicated or knowingly and understandingly waived in the proceedings resulting in the conviction or sentence or in any other proceeding that the petitioner has taken to secure relief from his conviction, or sentence, may not be the basis for a subsequent petition, unless the court finds grounds for relief asserted which for reasonable causes were omitted or inadequately" }, { "docid": "8369215", "title": "", "text": "remedies as to every claim in his petition. Pursuant to 28 U.S.C. § 2254(b-c) (1970), a federal court may not consider a habeas corpus petition until the exhaustion of available state remedies. Whether a court may consider a petition in which the available state remedies as to some, but not all, of the claims have been exhausted, however, is unclear. Several circuits have held that unless the exhausted and unexhausted claims are in terrelated, a federal court shall decide the exhausted issues even though the same petition contains several grounds for relief that have not been exhausted in the state courts. Johnson v. United States District Court, 519 F.2d 738, 740 (8th Cir. 1975); Hewett v. North Carolina, 415 F.2d 1316, 1320 (4th Cir. 1969); United States ex rel. Levy v. McMann, 394 F.2d 402, 404-05 (2d Cir. 1968); United States v. Myers, 372 F.2d 111, 112-13 (3d Cir. 1967). Cf. Watson v. Patterson, 358 F.2d 297 (10th Cir. 1966). The Fifth Circuit, however, has held that, absent unusual circumstances, “a state prisoner seeking federal habeas corpus must exhaust available state remedies with respect to each claim in his habeas petition, or his petition will be denied by the federal courts.” West v. Louisiana, 478 F.2d 1026, 1034 (5th Cir. 1973), aff’d regarding exhaustion en banc, 510 F.2d 363 (5th Cir. 1975). The position of the Ninth Circuit on this issue is uncertain. In Blair v. California, 340 F.2d 741, 744-45 (9th Cir. 1965), the district court dismissed a habeas petition containing exhausted and unexhausted claims. We discussed the undesirability of letting a federal court pass upon issues that a state court would later review when it dealt with the petition’s related, unexhausted claims. In other cases, however, this court has considered exhausted claims which were accompanied by unexhausted contentions. Phillips v. Pitchess, 451 F.2d 913 (9th Cir. 1971), cert. denied, 409 U.S. 854, 93 S.Ct. 187, 34 L.Ed.2d (1972); Davis v. Dunbar, 394 F.2d 754 (9th Cir. 1968); Schiers v. California, 333 F.2d 173 (9th Cir. 1964). None of these opinions offered a general rule to follow or sound" }, { "docid": "8369214", "title": "", "text": "trial were also denied. He has never sought relief by writ of habeas corpus in any of the state courts. On November 26, 1973, Gonzales filed in federal district court a petition for a writ of habeas corpus, and on January 23, 1974, he filed another habeas petition. Both petitions alleged: (1) ineffective assistance of counsel at trial; (2) lack of substantial evidence to support the conviction for assault with intent to commit rape; (3) false imprisonment because of the use of another person’s criminal record in determining sentence and quality of imprisonment; and (4) mistreatment at the time of arrest. ' The last two issues had not been raised in state court, and the district judge dismissed the petitions for failure to exhaust available state remedies. In Gonzales’ appeals to this court, he alleges false imprisonment, ineffective assistance of counsel and lack of substantial evidence to support his conviction, of which only the last two issues were raised and exhausted in state court. II The facts show that Gonzales has not exhausted available state remedies as to every claim in his petition. Pursuant to 28 U.S.C. § 2254(b-c) (1970), a federal court may not consider a habeas corpus petition until the exhaustion of available state remedies. Whether a court may consider a petition in which the available state remedies as to some, but not all, of the claims have been exhausted, however, is unclear. Several circuits have held that unless the exhausted and unexhausted claims are in terrelated, a federal court shall decide the exhausted issues even though the same petition contains several grounds for relief that have not been exhausted in the state courts. Johnson v. United States District Court, 519 F.2d 738, 740 (8th Cir. 1975); Hewett v. North Carolina, 415 F.2d 1316, 1320 (4th Cir. 1969); United States ex rel. Levy v. McMann, 394 F.2d 402, 404-05 (2d Cir. 1968); United States v. Myers, 372 F.2d 111, 112-13 (3d Cir. 1967). Cf. Watson v. Patterson, 358 F.2d 297 (10th Cir. 1966). The Fifth Circuit, however, has held that, absent unusual circumstances, “a state prisoner seeking federal" }, { "docid": "2040631", "title": "", "text": "his petition as to which he has not exhausted his remedies. See, Hewett v. State of North Carolina, 415 F.2d 1316 (4th Cir. 1969); United States ex rel. Levy v. McMann, 394 F.2d 402 (2nd Cir. 1968). But see, Green v. Beto, 460 F.2d 322 (5th Cir. 1972); Hamilton v. Craven, 350 F.Supp. 1251, 1253 (N.D.Cal.1971) (dictum), aff’d mem., 469 F.2d 1394 (9th Cir. 1973). The primary arguments advanced against this position are that it does violence to the doctrine of comity and that it fosters piecemeal litigation. The first objection, we believe, is without merit. The exhaustion requirement is not jurisdictional but, instead, it is “merely an accommodation of our federal system designed to give the State an initial ‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights. * \" * ”. Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 30 L.Ed.2d 418 (1971) (Citation omitted.) By our decision, we do not deprive the state of this first opportunity as we only require the District Court to examine those claims as to which the petitioner has exhausted his state remedies. The second objection, on the other hand, is grounded in the convenience of the federal courts. This interest — the desire to avoid piecemeal litigation— must be balanced against the interests of the prisoner in obtaining prompt consideration of exhausted claims by the federal courts. In our view, justice requires that the balance must be struck in favor of the prisoners seeking relief. See, United States ex rel. Levy v. Mc-Mann, supra,, 394 F.2d at 404-405. We cannot let the convenience alone of the judiciary and governmental agencies postpone review by the federal courts. The appellant’s claim that the state post-conviction court set aside the wrong conviction is, in the sense we use the word here, unrelated to his claims that his pleas of guilty were not voluntarily or understandingly made and that he was denied effective assistance of counsel. The post-conviction court has made it clear that one of the convictions should be set aside because it appeared that Tyler had" }, { "docid": "22408565", "title": "", "text": "petitions without prejudice. As will be discussed infra, a reviewing court is in a position different from that of a district court. Once a federal habeas court has reached the merits of a claim and the case is presented for appellate review, the policy considerations that dictate dismissal for want of exhaustion are no longer controlling, and the reviewing court must entertain the case on its merits. . We are aware that all but one of our sister circuits allow (and some require) district courts to consider the exhausted claims in a mixed petition, at least if the exhausted claims are “unrelated” to the unexhausted ones. E. g., Miller v. Hall, 536 F.2d 967 (1st Cir. 1976); Cameron v. Fastoff, 543 F.2d 971 (2d Cir. 1976); Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1976) (en banc); Hewett v. North Carolina, 415 F.2d 1316 (4th Cir. 1969); Meeks v. Jago, 548 F.2d 134 (6th Cir. 1976) cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977); Brown v. Wisconsin State Dep’t of Public Welfare, 457 F.2d 257 (7th Cir. 1972); Tyler v. Swenson, 483 F.2d 611, 614-15 (8th Cir. 1973); Smith v. Gaffney, 462 F.2d 663 (10th Cir. 1972). The Ninth Circuit has adopted our approach. Gonzales v. Stone, 546 F.2d 807 (9th Cir. 1976). Prisoners in the District of Columbia petition under 28 U.S.C. § 2255 (1970); therefore, the District of Columbia Circuit has not addressed this question. . Although the Rules Governing Section 2254 Cases were not in effect at the time Galtieri and Matera filed their petitions, the policies implemented by the rules are derived from pri- or Supreme Court precedent, see e. g., Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), and are clearly relevant to our discussion. . This provision adopts the Supreme Court’s rationale in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). H.R. Rep.No.94-1471, 94th Cong., 2d Sess. 5-6, reprinted in [1976] U.S.Code Cong. & Admin. News 2478, 2482; Advisory Committee Note at 1138-39. In Sanders, the Court stated" }, { "docid": "22408623", "title": "", "text": "affirm in many instances the denial of relief on such exhausted claims, a practice often buried in our Local Rule 21 practice, because not considered of precedential importance. Enough opinions have been published, however, to reveal that this Court has often followed such a course. See, e. g., Harris v. Estelle, 487 F.2d 1293 (5th Cir. 1974) (affirming denial of relief on merits of exhausted claim); Moye v. Highsmith, 460 F.2d 1388 (5th Cir. 1972), aff’g Moye v. Georgia, 330 F.Supp. 290 (N.D.Ga.1971) (affirming grant of relief on exhausted claim); McDonald v. Wainwright, 466 F.2d 1136 (5th Cir. 1972) (affirming denial of relief on merits of exhausted claim); Hill v. Dutton, 440 F.2d 34 (5th Cir.) (affirming denial of relief on merits of exhausted claim), cert. denied, 404 U.S. 845, 92 S.Ct. 145, 30 L.Ed.2d 81 (1971); Lee v. Wiman, 280 F.2d 257, 264 (5th Cir. 1960) (issue-by-issue approach preferred). As to the procedure to be followed in the district court, I would allow a flexible rule. I would leave it to the sound discretion of the district judge to decide whether the efficiency of his office or the ends of justice are better served by considering exhausted claims asserted in a petition that also contains unexhausted claims. Subject to review only for abuse of discretion, the court is, of course, at liberty to dismiss for failure to exhaust all claims. The rigid rule argued in Judge Tjoflat’s opinion has been rejected by other circuits. Five circuits have adopted a rigid rule that, in the absence of unusual circumstances, district courts are required to consider ex hausted claims even though the petition also contains frivolous claims or unrelated claims to which there has been no exhaustion. Miller v. Hall, 536 F.2d 967 (1st Cir. 1976); Cameron v. Fastoff, 543 F.2d 971 (2d Cir. 1976); United States v. Deegan, 440 F.2d 304, 305 n.1 (2d Cir. 1971); United States v. McMann, 394 F.2d 402 (2d Cir. 1968); United States v. Boyance, 372 F.2d 111 (3d Cir. 1967); Hewett v. North Carolina, 415 F.2d 1316 (4th Cir. 1969); Triplett v. Wyrick, 549" }, { "docid": "10065871", "title": "", "text": "of the circuits which have considered this question. Four circuits have ruled that the district court should consider exhausted claims, at least if the unexhausted claims are either unrelated or frivolous. Mercado v. Rockefeller, 502 F.2d 666, 668 n.1 (2d Cir.1974); United States ex rel. Levy v. McMann, 394 F.2d 402 (2d Cir.1968), and United States ex rel. Sniffen v. Follette, 393 F.2d 726 (2d Cir.1968); Tyler v. Swenson, 483 F.2d 611 (8th Cir.1973); Hewett v. North Carolina, 415 F.2d 1316, 1320 (4th Cir.1969); United States ex rel. Boyance v. Myers, 372 F.2d 111 (3d Cir.1967). The Ninth Circuit in Smith v. Cupp, 457 F.2d 1098 (1972), assumed it was proper to consider exhausted claims while dismissing unexhausted ones. Cases in the Fifth Circuit have tended to the contrary, see, e. g., Green v. Beto, 460 F.2d 322 (5th Cir.1972), but recently appear to have adopted a more flexible approach, e. g., Singleton v. Estelle, 492 F.2d 671, 676-77 (5th Cir.1974). In this case the balance clearly tips in favor of unimpeded access to a federal court remedy on claims which have been exhausted. There is no problem of interrelationship of remedy in the sense that the issues before the federal court logically depend for their relevance upon resolution of an unexhausted issue. See United States ex rel. DeFlumer v. Mancusi, 380 F.2d 1018 (2d Cir.1967). The unexhausted claim here has not yet even started on its path through the state courts. And at least where, as here, petitioner has been in jail almost a year and a half while his appeal is pending, it would be indefensible to refuse to consider a meritorious claim merely on the grounds that it might eventually be mooted by a favorable state court ruling on his appeal of unrelated issues. We therefore hold that it was error for the district court to dismiss the entire habeas petition. It properly dismissed the unexhausted claim, but should have addressed the two issues which had been exhausted. In the interests of judicial economy, we note that under recent decisions of this court, the issue regarding the" }, { "docid": "8594093", "title": "", "text": "TJOFLAT, Circuit Judge: In 1967, the petitioners Galtieri and Mat-era were jointly convicted in the Florida state courts of robbery. They appealed unsuccessfully at the state court level and in January 1973 filed a petition for habeas corpus in federal court. That petition was dismissed for failure to exhaust state remedies, and they turned again to the state’s judicial machinery for assistance. Still finding no help there, Galtieri and Matera filed another habeas petition in federal court in January 1975. After an evidentiary hearing, the district court found a Brady violation and granted the requested relief. The long strived-for success is short-lived, however, for we reverse. In their 1975 petition, Galtieri and Mat-era asserted four points of constitutional error in their trial: (1) the Brady violation; (2) illegal wiretaps; (3) an improperly constituted jury venire; and (4) a violation of their right to appeal. The district court granted relief based on the first allegation, a contention which he found to have been exhausted in the state courts. It is uncontroverted here on appeal, however, that issues (2) and (3) — the wiretaps and jury venire — have not similarly been exhausted. The settled rule of this circuit is that exhaustion of state remedies in respect to all claims contained in a habeas petition is required before relief may be granted on any claim. Lamberti v. Wainwright, 513 F.2d 277 (5th Cir. 1975); West v. Louisiana, 478 F.2d 1026 (5th Cir. 1973), aff’d regarding exhaustion en banc, 510 F.2d 363 (5th Cir. 1975). The petition before us runs afoul of this rule. We are well aware of the fact that other circuits have adopted a contrary approach. See, e. g., Tyler v. Swenson, 483 F.2d 611 (8th Cir. 1973); Hewett v. North Carolina, 415 F.2d 1316 (4th Cir. 1969); United States ex rel. Levy v. McMann, 394 F.2d 402 (2d Cir. 1968); United States v. Myers, 372 F.2d 111 (3d Cir. 1967); cf. Watson v. Patterson, 358 F.2d 297 (10th Cir. 1966). The Ninth Circuit has recently adopted our rule, however, agreeing that it best fosters federal-state comity and avoids piecemeal" }, { "docid": "251671", "title": "", "text": "to them or are frivolous. E. g., Miller v. Hall, 536 F.2d 967 (1st Cir. 1976); Tyler v. Swenson, 483 F.2d 611 (8th Cir. 1973); Hewett v. North Carolina, 415 F.2d 1316 (4th Cir. 1969); United States ex rel. Levy v. McMann, 394 F.2d 402 (2d Cir. 1968); United States ex rel. Boyanee v. Myers, 372 F.2d 111 (3d Cir. 1967). We adopt the majority rule. Its rationale is very ably set out in the cases cited above (see esp. Miller v. Hall, supra) and we see no need for a lengthy re-examination of the question here. We agree with the majority that once a state court has ruled on the merits of a habeas claim, the interests of comity have been sufficiently served and no longer outweigh the petitioner’s interest in prompt relief from unlawful detention. Similarly, while we recognize the general policy against piecemeal litigation, we agree with the majority that that policy is outweighed by the same interest in speedy relief for the unlawfully detained petitioner. Therefore we hold that district courts presented with mixed habeas petitions should reach the merits of the exhausted claims where the unexhausted claims are unrelated or frivolous. Viewing the present case in the light of this holding, we find the district court properly dismissed, for failure to exhaust state remedies, all of Ware’s claims for habeas relief except his separation-of-powers claim. The latter should have been addressed on its merits. In the interests of judicial economy, however, we affirm the dismissal of the separation-of-powers claim because it is frivolous. Nothing in the federal Constitution forbids a state from providing for administrative revocation of probation imposed by a court. The Supreme Court rejected an argument similar to Ware’s in Dreyer v. Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79 (1902). In Dreyer, the Illinois Indeterminate Sentence Act of 1899 was attacked as violative of the principle of separation of powers embodied in the Illinois Constitution. The Supreme Court stated: A local statute investing a collection of persons not of the judicial department, with powers that are judicial and authorizing them" }, { "docid": "22408624", "title": "", "text": "of the district judge to decide whether the efficiency of his office or the ends of justice are better served by considering exhausted claims asserted in a petition that also contains unexhausted claims. Subject to review only for abuse of discretion, the court is, of course, at liberty to dismiss for failure to exhaust all claims. The rigid rule argued in Judge Tjoflat’s opinion has been rejected by other circuits. Five circuits have adopted a rigid rule that, in the absence of unusual circumstances, district courts are required to consider ex hausted claims even though the petition also contains frivolous claims or unrelated claims to which there has been no exhaustion. Miller v. Hall, 536 F.2d 967 (1st Cir. 1976); Cameron v. Fastoff, 543 F.2d 971 (2d Cir. 1976); United States v. Deegan, 440 F.2d 304, 305 n.1 (2d Cir. 1971); United States v. McMann, 394 F.2d 402 (2d Cir. 1968); United States v. Boyance, 372 F.2d 111 (3d Cir. 1967); Hewett v. North Carolina, 415 F.2d 1316 (4th Cir. 1969); Triplett v. Wyrick, 549 F.2d 57 (8th Cir. 1977); Tyler v. Swenson, 483 F.2d 611, 614 (8th Cir. 1973). Three circuits have not expressly articulated their rule. These courts have simply passed on the merits of appeals from decisions on claims in mixed petitions. Meeks v. Jago, 548 F.2d 134 (6th Cir. 1976), cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977); Brown v. Wisconsin State Dept. of Public Welfare, 457 F.2d 257 (7th Cir. 1972); Smith v. Gaffney, 462 F.2d 663 (10th Cir. 1972); Watson v. Patterson, 358 F.2d 297 (10th Cir.), cert. denied, 385 U.S. 876, 87 S.Ct. 153, 17 L.Ed.2d 103 (1966). The Ninth Circuit has adopted the view that when mixed claims are presented, a district court should not address the merits of any issue until the available state remedies are exhausted as to every issue. Gonzales v. Stone, 546 F.2d 807 (9th Cir. 1976); James v. Reese, 546 F.2d 325 (9th Cir. 1976). It should be noted that in each of these cases, the district court had dismissed the petition for" }, { "docid": "8594094", "title": "", "text": "issues (2) and (3) — the wiretaps and jury venire — have not similarly been exhausted. The settled rule of this circuit is that exhaustion of state remedies in respect to all claims contained in a habeas petition is required before relief may be granted on any claim. Lamberti v. Wainwright, 513 F.2d 277 (5th Cir. 1975); West v. Louisiana, 478 F.2d 1026 (5th Cir. 1973), aff’d regarding exhaustion en banc, 510 F.2d 363 (5th Cir. 1975). The petition before us runs afoul of this rule. We are well aware of the fact that other circuits have adopted a contrary approach. See, e. g., Tyler v. Swenson, 483 F.2d 611 (8th Cir. 1973); Hewett v. North Carolina, 415 F.2d 1316 (4th Cir. 1969); United States ex rel. Levy v. McMann, 394 F.2d 402 (2d Cir. 1968); United States v. Myers, 372 F.2d 111 (3d Cir. 1967); cf. Watson v. Patterson, 358 F.2d 297 (10th Cir. 1966). The Ninth Circuit has recently adopted our rule, however, agreeing that it best fosters federal-state comity and avoids piecemeal litigation. Gonzales v. Stone, No. 75-2451 (9th Cir. 1976). We on this panel, of course, are not at liberty to disregard our circuit’s previously announced policy even if we desired to do so. Davis v. Estelle, 529 F.2d 437,441 (5th Cir. 1976). This cause, therefore, is reversed and remanded for further proceedings in conformity with this opinion. REVERSED AND REMANDED. . See State v. Matera, 266 So.2d 661 (Fla.Sup. Ct.1972), rev’g 254 So.2d 843 (Fla.Dist.Ct.App. 1971); Matera v. State, 218 So.2d 180 (Fla.Dist. Ct.App.), cert. denied, 225 So.2d 529 (Fla.Sup. Ct.), cert. denied, 396 U.S. 955, 90 S.Ct. 424, 24 L.Ed.2d 420 (1969). . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). . It is true that the petitioners challenged the selection of the jury venire in the Florida courts. See Matera v. State, 218 So.2d 180, 182-83 (Fla.Dist.Ct.App.), cert. denied, 225 So.2d 529 (Fla.Sup.Ct), cert. denied, 396 U.S. 955, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1969). That challenge was based on state law, however. See Fla.Stat. § 40.41. In" }, { "docid": "22408564", "title": "", "text": "from state custody). Federal courts have not required exhaustion when “an analysis of the state courts’ substantive holdings of federal law indicates that an application for relief by the prisoner to the state courts would be futile.” Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1098 (1970) (footnote omitted). See Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 2100, 40 L.Ed.2d 628 (1974) (Supreme Court did not require further exhaustion after court of appeals held that “resort to the state courts would be futile.”); Reed v. Beto, 343 F.2d 723 (5th Cir. 1965), aff’d on other grounds sub nom. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). . 28 U.S.C. § 2254(c) (1970), quoted in note 11 supra. . The Supreme Court has reviewed a case on the merits of an exhausted claim while noting the presence of unexhausted claims. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 1104, 31 L.Ed.2d 408 (1972). This does not militate against our rule that district courts ought to dismiss mixed petitions without prejudice. As will be discussed infra, a reviewing court is in a position different from that of a district court. Once a federal habeas court has reached the merits of a claim and the case is presented for appellate review, the policy considerations that dictate dismissal for want of exhaustion are no longer controlling, and the reviewing court must entertain the case on its merits. . We are aware that all but one of our sister circuits allow (and some require) district courts to consider the exhausted claims in a mixed petition, at least if the exhausted claims are “unrelated” to the unexhausted ones. E. g., Miller v. Hall, 536 F.2d 967 (1st Cir. 1976); Cameron v. Fastoff, 543 F.2d 971 (2d Cir. 1976); Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1976) (en banc); Hewett v. North Carolina, 415 F.2d 1316 (4th Cir. 1969); Meeks v. Jago, 548 F.2d 134 (6th Cir. 1976) cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977); Brown v. Wisconsin State Dep’t of Public" }, { "docid": "10065870", "title": "", "text": "read the codification of the exhaustion doctrine to require as much even after judgment of conviction. Title 28, section 2254(c) provides: “An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.” As the Supreme Court has said in another context: “It follows, of course, that once the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971). If the petition is denied on the merits, no state process will be interrupted. If the petition is meritorious, the “need to preserve the writ of habeas corpus as a ‘swift and imperative remedy in all cases of illegal restraint or confinement’ ” comes into full play, and in the normal case will outweigh the interests of federalism opposing it. This has been the almost unanimous analysis of the circuits which have considered this question. Four circuits have ruled that the district court should consider exhausted claims, at least if the unexhausted claims are either unrelated or frivolous. Mercado v. Rockefeller, 502 F.2d 666, 668 n.1 (2d Cir.1974); United States ex rel. Levy v. McMann, 394 F.2d 402 (2d Cir.1968), and United States ex rel. Sniffen v. Follette, 393 F.2d 726 (2d Cir.1968); Tyler v. Swenson, 483 F.2d 611 (8th Cir.1973); Hewett v. North Carolina, 415 F.2d 1316, 1320 (4th Cir.1969); United States ex rel. Boyance v. Myers, 372 F.2d 111 (3d Cir.1967). The Ninth Circuit in Smith v. Cupp, 457 F.2d 1098 (1972), assumed it was proper to consider exhausted claims while dismissing unexhausted ones. Cases in the Fifth Circuit have tended to the contrary, see, e. g., Green v. Beto, 460 F.2d 322 (5th Cir.1972), but recently appear to have adopted a more flexible approach, e. g., Singleton v. Estelle, 492 F.2d 671, 676-77 (5th Cir.1974). In this case the balance clearly tips in favor of unimpeded access to a" }, { "docid": "22408585", "title": "", "text": "confinement.” Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490, 93 S.Ct. 1123, 1127, 35 L.Ed.2d 443 (1973), quoting Secretary of State for Home Affairs v. O’Brien, [1923] A.C. 603, 609 (H.L.). With all due respect, today the majority disappoints even this minimal expectation. For the unwitting, naive, or optimistic inclusion of a single unexhausted claim in a prisoner’s petition, the majority would deny a federal hearing on a thousand exhausted claims. This is a new species of poisonous tree whose bitter fruit, I am convinced, is the frustration of justice. Respectfully, I dissent. I. Judges Roney and Thornberry properly reject the majority’s rigid rule that the district courts are required to dismiss mixed petitions. I fully agree with my separately dissenting brethren on this point. Indeed, Judge Roney’s opinion takes us most of the way to the position I endorse. In going somewhat further than Judge Roney, I tread a well-beaten path and conclude that the district courts should be required to consider exhausted claims in mixed petitions unless these claims are' substantially interrelated with unexhausted claims. This rule has commended itself to the judgment of five of the six circuits which have faced directly the problem of mixed petitions. Miller v. Hall, 536 F.2d 967 (1st Cir. 1976); United States ex rel. Levy v. McMann, 394 F.2d 402 (2d Cir. 1968); United States ex rel. Boyance v. Myers, 372 F.2d 111 (3d Cir. 1967) (per curiam); Hewett v. North Carolina, 415 F.2d 1316 (4th Cir. 1969); Tyler v. Swenson, 483 F.2d 611 (8th Cir. 1973), r’aff’d in Triplett v. Wyrick, 549 F.2d 57 (8th Cir. 1977). Only the Ninth Circuit adheres to the view that the majority espouses today. Gonzales v. Stone, 546 F.2d 807 (9th Cir. 1976). While the views of our sister circuits are, of course, not binding upon us, such a coincidence of considered opinion is striking. A lonely sibling bears a heavy burden of justification and explanation when it discovers new imperatives of federalism not apparent to five courts of dignity co-equal with our own. That burden has not been carried. II. The" }, { "docid": "683946", "title": "", "text": "briefs and the holding of oral arguments. State v. Zemina, 87 S.D. 291, 206 N.W.2d 819 (1973), reh. denied June 18, 1973. A petition for a Writ of Habeas Corpus was denied in this court on September 27, 1972, because the state appeal was pending. On January 15, 1973, petitioner was informed that he was ineligible for post conviction relief in state circuit court for the same reason. Following the denial of his direct appeal, petitioner filed another petition for post conviction relief in the state courts on December 26, 1973, amended on July 17, 1974, and October 16, 1974. Hearings were held on January 18, July 17 and December 12, 1974, and the prayer for post conviction relief was denied on January 13, 1975. Petitioner did not appeal this denial to the South Dakota Supreme Court. The present petition for a Writ of Habeas Corpus was filed in this court on September 24, 1976, and was amended on February 15, 1977. A hearing was held on March 7,1977, and voluminous files and transcripts were received as exhibits. Both petitioner and respondent have had access to these exhibits and both have submitted briefs to the court. All of the files and transcripts, as well as the briefs, have been carefully considered and the various claims of the petitioner have been dealt with as follows. EXHAUSTION OF STATE JUDICIAL REMEDIES It is settled federal law that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for a Writ of Habeas Corpus. 28 U.S.C.A. section 2254(b) (1971); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Of the eleven allegations of constitutional and jurisdictional invalidity made by the petitioner, some are clearly exhausted claims and some are unexhausted. The firm rule in the Eighth Circuit is that “when a petition contains both unexhausted claims and unrelated, exhausted claims, the district court should determine those issues which have been exhausted.” Triplett v. Wyrick, 549 F.2d 57, 59 (8th Cir. 1977); Tyler v. Swenson, 483 F.2d 611, 614 (8th Cir. 1973)." }, { "docid": "251670", "title": "", "text": "time, Ware concedes he has not exhausted state remedies as to his other two grounds for relief. The state argues that even if one of Ware’s claims is exhausted, the district court properly dismissed the entire petition because the other claims remain unexhausted. We reject this argument. The circuit courts are split as to the proper disposition of “mixed” habeas petitions— that is, those presenting both exhausted and unexhausted grounds for relief. Two circuits, the fifth and the ninth, have held that mixed petitions should be dismissed in toto. The rationale for this rule is explicated in Galtieri v. Wainwright, 5 Cir., 582 F.2d 348, reh. den., 587 F.2d 508 (5th Cir. 1978) (en banc), and in Gonzales v. Stone, 546 F.2d 807 (9th Cir. 1976). In brief, the rule is based on comity and the need to avoid piecemeal litigation. The majority of circuit courts, however, hold that mixed petitions should not be dismissed in toto; rather, the district courts should reach the merits of the exhausted claims where the unexhausted claims are unrelated to them or are frivolous. E. g., Miller v. Hall, 536 F.2d 967 (1st Cir. 1976); Tyler v. Swenson, 483 F.2d 611 (8th Cir. 1973); Hewett v. North Carolina, 415 F.2d 1316 (4th Cir. 1969); United States ex rel. Levy v. McMann, 394 F.2d 402 (2d Cir. 1968); United States ex rel. Boyanee v. Myers, 372 F.2d 111 (3d Cir. 1967). We adopt the majority rule. Its rationale is very ably set out in the cases cited above (see esp. Miller v. Hall, supra) and we see no need for a lengthy re-examination of the question here. We agree with the majority that once a state court has ruled on the merits of a habeas claim, the interests of comity have been sufficiently served and no longer outweigh the petitioner’s interest in prompt relief from unlawful detention. Similarly, while we recognize the general policy against piecemeal litigation, we agree with the majority that that policy is outweighed by the same interest in speedy relief for the unlawfully detained petitioner. Therefore we hold that district courts" }, { "docid": "22617081", "title": "", "text": "9, but states without contradiction that the respondent did not object to the prosecutor’s statement that the victim was telling the truth (#2) or to any of the several instances where the prosecutor, in summation, gave his opinion on the weight of the evidence (#10). The petitioner also notes that the conduct identified in #6 and #7 did not occur in front of the jury, and that the conduct in #8, which was only an objection to cross-examination, can hardly be labeled as misconduct. The court granted the writ and ordered the respondent discharged from custody unless within 90 days the State initiated steps to bring about a new trial. The Fifth and Ninth Circuits have adopted a “total exhaustion” rule. See Galtieri v. Wainwright, 582 F. 2d 348, 355-360 (CA5 1978) (en banc), and Gonzales v. Stone, 546 F. 2d 807, 808-810 (CA9 1976). A majority of the Courts of Appeals, however, have permitted the District Courts to review the exhausted claims in a mixed petition containing both exhausted and unexhausted claims. See, e. g., Katz v. King, 627 F. 2d 568, 574 (CA1 1980); Cameron v. Fastoff, 543 F. 2d 971, 976 (CA2 1976); United States ex rel. Trantino v. Hatrack, 563 F. 2d 86, 91-95 (CA3 1977), cert. denied, 435 U. S. 928 (1978); Hewett v. North Carolina, 415 F. 2d 1316, 1320 (CA4 1969); Meeks v. Jago, 548 F. 2d 134, 137 (CA6 1976), cert. denied, 434 U. S. 844 (1977); Brown v. Wisconsin State Dept. of Public Welfare, 457 F. 2d 257, 259 (CA7), cert. denied, 409 U. S. 862 (1972); Tyler v. Swenson, 483 F. 2d 611, 614 (CA8 1973); Whiteley v. Meacham, 416 F. 2d 36, 39 (CA10 1969), rev’d on other grounds, 401 U. S. 560 (1971). In Gooding v. Wilson, 405 U. S. 518 (1972), this Court reviewed the merits of an exhausted claim after expressly acknowledging that the prisoner had not exhausted his state remedies for all of the claims presented in his habeas petition. Gooding does not control the present case, however, since the question of total exhaustion was" }, { "docid": "22408570", "title": "", "text": "situation, where the district court has declined to reach the merits and has dismissed the entire petition without prejudice, we have affirmed its decision. E. g., Parson v. Beto, 463 F.2d 249 (5th Cir. 1972); Burroughs v. Wainwright, 454 F.2d 1165 (5th Cir. 1972); Wheeler v. Beto, 407 F.2d 816 (5th Cir. 1969). We have found no case in which this court has reversed a district court’s dismissal for want of complete exhaustion and remanded for a hearing on the merits. In the second situation, where the district court has denied relief on the merits of the exhausted claims and has dismissed the unexhausted ones, we have sometimes vacated the district court’s judgment and required dismissal of the petition to ensure that the premature claims would receive prior state court treatment. E. g., Hargrett v. Wainwright, 474 F.2d 987 (5th Cir. 1973). In other cases, however, this circuit has reached the merits of the exhausted claims and affirmed the denial of the writ. E. g., Allen v. Estelle, 568 F.2d 1108 (5th Cir. 1978); Singleton v. Estelle, 492 F.2d 671 (5th Cir. 1974); Harris v. Estelle, 487 F.2d 1293 (5th Cir. 1974); Hill v. Dutton, 440 F.2d 34 (5th Cir. 1971). We have also reversed the district court’s denial on the merits and remanded the case for further proceedings. Allen v. Henderson, 434 F.2d 26 (5th Cir. 1970). In the third situation, where the district court grants relief on the exhausted claim in a mixed petition, this court has both affirmed the grant, Moye v. Highsmith, 460 F.2d 1388 (5th Cir. 1972), aff’g Moye v. Georgia, 330 F.Supp. 290 (D.Ga.1971), and reversed the grant, Shuler v. Wainwright, 491 F.2d 1213 (5th Cir. 1974), after reviewing the issue on the merits. . Section 2254(d) provides in part as follows: (d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in" } ]

[ { "docid": "22619900", "title": "", "text": "respondent argued that the use of this identification evidence violated his due process rights as defined in Simmons v. United States, 390 U. S. 377 (1968). The court considered this claim on the merits, and rejected it. Respondent did not seek review in the California Supreme Court. Instead, he raised the pretrial identification issue in state habeas corpus proceedings, where his petitions were denied without opinion. Finally, he filed a petition for habeas corpus under 28 U. S. C. § 2254 in the United States District Court for the Northern District of California, again raising the pretrial identification issue. In his return in opposition to respondent’s petition for habeas corpus, petitioner argued that the District Court was precluded from re-examining the issue by virtue of § 2254 (d), which accords a presumption of correctness to state-court factual findings, subject to certain exceptions not relevant here. The District Court denied the petition on its merits, without referring to § 2254 (d). Respondent appealed to the Court of Appeals for the Ninth Circuit, where petitioner abandoned his § 2254 (d) argument. That court reversed on the merits, finding that respondent’s due. process rights had been violated by the pretrial identification procedures. It did not refer to § 2254 (d). Petitioner then filed a motion for rehearing and suggestion for rehearing en banc, this time including a one-sentence argument that § 2254 (d) barred the federal court from reaching the pretrial identification issue. The Court of Appeals denied these motions without discussion. II I cannot join my Brethren in concluding that the Court of Appeals’ decision must be vacated for its failure to discuss an issue not timely raised by petitioner. This Court today holds that a federal habeas court may not grant a petition for a writ without stating on the record why it was not bound by § 2254 (d) to defer to the state-court judgment. Ante, at 551. It therefore vacates the judgment of the Court of Appeals in this case, even though petitioner failed to raise the § 2254 (d) argument in his briefs before that court. The Court" } ]

[ { "docid": "12716209", "title": "", "text": "and logic, must have un-dergirded it”); Whitaker v. Meachum, 123 F.3d 714, 715 (2d Cir.1997) (on federal collateral review, “deference is owed ‘to implied as well as express findings of fact’ ” (quoting Ventura v. Meachum, 957 F.2d 1048, 1055 (2d Cir.1992))); McQueen, 99 F.3d at 1310 (the presumption of correctness “applies to implicit findings of fact, logically deduced because of the trial court’s ability to adjudge ... demeanor and credibility”). The Supreme Court’s decision in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), a habeas corpus case, is particularly apposite. There, the factual issue presented was whether “juror Colby was properly excused for cause.” Id. at 430, 105 S.Ct. 844. Although the state trial judge had excused the prospective juror without an explicit factual finding that he was biased, the Supreme Court held that the finding of bias was implicit in the decision of the trial judge to excuse the prospective juror. Then-Justice Rehnquist, speaking for the Court, wrote: [W]e conclude that juror Colby was properly excused for cause.’ Applying the analysis required by § 2254(d), we have already determined that the question of challenge for bias is a “factual issue” covered by the section. Nor does respondent seriously urge that the trial court’s decision to excuse juror Colby for bias was not a “determination after a hearing on the merits.” .... Nor do we think under the circumstances that the judge was required to announce for the record his conclusion that juror Colby was biased, or his reasoning. The finding is evident from the record. See Marshall v. Lonberger, 459 U.S. at 433, 103 S.Ct. 843. In this regard it is noteworthy that in this case the court was given no reáson to think that elaboration was necessary; defense counsel did not see fit to object to juror Colby’s recusal, or to attempt rehabilitation. Id. at 430-31, 105 S.Ct. 844 (footnote omitted) (emphasis added); accord Jones v. Butler, 864 F.2d 348, 362 (5th Cir.1988) (holding that state court’s .refusal to dismiss a prospective juror for cause based on an asserted lack of impartiality" }, { "docid": "14271648", "title": "", "text": "constitutional violation. III. Under § 2254(d), a federal court in a habe-as corpus proceeding must accord a “presumption of correctness” to a “determination after a hearing on the merits of a factual issue, made by a state court of competent jurisdiction,” unless the conditions for one of the seven listed exceptions are met or unless the state court findings are not “fairly supported” by the record as a whole. 28 U.S.C. § 2254(d); accord Ventura v. Meachum, 957 F.2d 1048, 1054 (2d Cir.1992). Claims of insufficiency of evidence upon which to base a conviction are cognizable claims of due process violations. Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979). In Jackson, the Supreme Court held that on such a challenge to a state court conviction, pursuant to § 2254, the petitioner is entitled to habeas corpus relief if it is found that, based on the evidence adduced at trial, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 319, 99 S.Ct. at 2789; accord Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir.1994). The Court in Jackson explained that in reviewing the evidence, “a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; accord Wheel, 34 F.3d at 66. The petitioner claims that the evidence presented at trial was insufficient to convict him of the offenses for which he was convicted. Specifically, the petitioner asserts that Morelock’s credibility is doubtful and that “her accounts of coercion and compulsion were concocted” and that instead, “she was a willing participant in the debauchery.” (Petitioner’s Third Dept. Appellate Brief). He relies on her delay of a couple of days in reporting the crimes. It is not the duty of the habeas court to weigh the evidence" }, { "docid": "12632798", "title": "", "text": "is a statutory presumption of correctness attached to the state court’s findings of fact in a subsequent federal habeas corpus proceeding. Walker v. Maggio, 738 F.2d 714, 717 (5th Cir.1984); Armstead v. Maggio, Infra, 720 F.2d at 895-96; see 28 U.S.C. § 2254(d). Therefore, unless the state court hearing was inadequate under the circumstances or the findings of fact are not fairly supported by the record, federal courts must defer to the state court’s findings. Walker v. Maggio, supra, 738 F.2d at 717 (citing Smith v. Estelle, 711 F.2d 677, 681-82 (5th Cir.1983)), cert. denied, — U.S.-, 104 S.Ct. 1685, 80 L.Ed.2d 159 (1984). However, of the 23 claims previously presented to the state habeas court, an evidentiary hearing was conducted with respect to only six of them. Moreover, the state habeas judge, who was also the trial judge, gives no hint of his reason for and no citation to legal authority supporting his rejection of petitioner’s remaining constitutional claims without hearing. He made few specific findings of fact and filed neither written findings of fact nor conclusions of law into the record. Indeed, had the state judge afforded Kirkpatrick a full hearing on all of his constitutional claims and made clear findings from the evidence, it would not have been necessary for me to scrutinize meticulously the entire state court record to determine whether factual findings could be inferred that supported his conclusions. Nevertheless, the Supreme Court has held that federal habeas courts must give appropriate deference to implicit factual findings of a state habeas court when the state court conducts a hearing and enters a judgment from which findings of fact may be inferred. Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 850-51, 74 L.Ed.2d 646 (1983); Armstead v. Maggio, 720 F.2d 894, 896 (5th Cir.1983). State Evidentiary Hearing The six claims for which the state judge permitted Kirkpatrick to presept evidence in the state habeas proceeding fall into three categories: ineffective assistance of counsel; unrepresentative grand and petit juries; and denial of due process. A. Ineffective Counsel Kirkpatrick claims that the counsel representing him in Louisiana" }, { "docid": "4938670", "title": "", "text": "(1) it was not error to refuse to admit the arrest photograph into evidence to establish that Dey had been the victim of mistaken identification because “[Dey] was confined to a holding cell with numerous other prisoners,” and thus, the photograph was “inherently unreliable as proof of his appearance at the time of the drug transaction”; and (2) viewing the evidence in the light most favorable to the prosecution, it was legally sufficient to establish Dey’s guilt on the heroin possession count beyond a reasonable doubt. Thereafter, the New York Court of Appeals denied Dey’s application for leave to appeal. People v. Connyer, 80 N.Y.2d 928, 603 N.E.2d 960, 589 N.Y.S.2d 855 (1992); People v. Dey, 80 N.Y.2d 928, 603 N.E.2d 961, 589 N.Y.S.2d 856 (1992). C. The Habeas Petition and Hearing Under 28 U.S.C. § 2254(d), federal courts conducting habeas proceedings must give a “presumption of correctness” to “a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction,” unless the conditions for one of seven listed exceptions are met or unless the state court findings are not “fairly supported” by the record as a whole. See Ventura v. Meachum, 957 F.2d 1048, 1054 (2d Cir.1992); Campaneria v. Reid, 891 F.2d 1014, 1019 (2d Cir.1989). “Deference need not be given when ‘the material facts were not adequately developed at the State court hearing,’ ” Pagan v. Keane, 984 F.2d 61, 64 (2d Cir.1993) (quoting 28 U.S.C. § 2254(d)(3)), or when “the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing.” 28 U.S.C. § 2254(d)(2). Nor does § 2254(d) require deference to state court findings “on mixed issues of fact and law such as whether a plea agreement was entered into voluntarily ... or whether there has been ineffective assistance of counsel.” Ventura, 957 F.2d at 1055; see also Tyson v. Trigg, 883 F.Supp. 1213, 1218 (S.D.Ind.1994) (petitioner is correct in his contention that the “decision to exclude [the proffered] evidence raises a mixed question of law and fact and that no deference" }, { "docid": "23416198", "title": "", "text": "S.Ct. 1495 (opinion of O’Connor, J.) (citing Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985)). Under pre-AEDPA standards the factual findings of the state courts were “presumed ... correct” absent special circumstances listed in the statute. See 28 U.S.C. § 2254(d) (1994). The presumption applied to historical facts and inferences drawn from them, see Matusiak v. Kelly, 786 F.2d 536, 543 (2d Cir.), cert. dismissed, 479 U.S. 805, 107 S.Ct. 248, 93 L.Ed.2d 172 (1986), and to the factual findings of state appellate courts as well as trial courts, see Wainwright v. Goode, 464 U.S. 78, 85, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983) (per curiam) (citation omitted). The presumption curtailed a federal court’s ability to substitute its judgment as to the credibility of witnesses for that of the state court. See Maggio v. Fulford, 462 U.S. 111, 113, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983) (per curiam) (citing Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983)). One of the reasons the presumption can be set aside is if the federal habeas court “on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record.” 28 U.S.C. § 2254(d)(8) (1994); see also Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). This standard means that the federal habeas court must “more than simply disagree” with the state fact-finding. See Marshall, 459 U.S. at 432, 103 S.Ct. 843. If the state record is “ambiguous” such that two different views of the facts find fair support in the record, section 2254(d)(8) mandates deference to the state court’s fact-finding. See Wainwright, 464 U.S. at 85, 104 S.Ct. 378. Even if “a state court determination is fairly supported by the record, and thus presumed correct, [the] petitioner in a federal evidentiary hearing may nonetheless prevail by shouldering the burden of establishing ‘by convincing evidence that the factual determination by the State court was erroneous.’ ” Ventura v. Meachum, 957 F.2d 1048, 1054 (2d Cir.1992)" }, { "docid": "14271647", "title": "", "text": "driver of the car. II. Before obtaining relief under 28 U.S.C. § 2254, a petitioner must exhaust all available state remedies. 28 U.S.C. § 2254(b); see also Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Blissett v. Lefevre, 924 F.2d 434, 438 (2d Cir.), cert. denied, 502 U.S. 852, 112 S.Ct. 158, 116 L.Ed.2d 123 (1991). Here, the petitioner has exhausted his state court remedies because he presented all the issues he now raises in his direct appeal from his conviction. The Appellate Division’s affirmance of the conviction and the Court of Appeals’ denial of leave to appeal satisfy the exhaustion requirement. See Williams v. Smith, 591 F.2d 169, 171 (2d Cir.), cert. denied, 442 U.S. 920, 99 S.Ct. 2845, 61 L.Ed.2d 289 (1979). In addition, a petitioner must allege that he is in state custody in violation of the Constitution or a federal law or treaty as a prerequisite to relief under § 2254. 28 U.S.C. § 2254(a). The petitioner’s claims satisfy this requirement; each alleges a constitutional violation. III. Under § 2254(d), a federal court in a habe-as corpus proceeding must accord a “presumption of correctness” to a “determination after a hearing on the merits of a factual issue, made by a state court of competent jurisdiction,” unless the conditions for one of the seven listed exceptions are met or unless the state court findings are not “fairly supported” by the record as a whole. 28 U.S.C. § 2254(d); accord Ventura v. Meachum, 957 F.2d 1048, 1054 (2d Cir.1992). Claims of insufficiency of evidence upon which to base a conviction are cognizable claims of due process violations. Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979). In Jackson, the Supreme Court held that on such a challenge to a state court conviction, pursuant to § 2254, the petitioner is entitled to habeas corpus relief if it is found that, based on the evidence adduced at trial, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id." }, { "docid": "14423673", "title": "", "text": "courts conducting a habeas proceeding must give a “presumption of correctness” to “a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction,” unless the conditions for one of the seven listed exceptions are met or unless the state court findings are not “fairly supported” by the record as a whole. See Sumner, 449 U.S. 539, 550, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981). Where the presumption applies, “the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.” 28 U.S.C. § 2254(d); see also Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 456, 78 L.Ed.2d 267 (1983) (per curiam); Smith v. Phillips, 455 U.S. 209, 218, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982); Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981); LaVallee v. Delle Rose, 410 U.S. 690, 695, 93 S.Ct. 1203, 1205, 35 L.Ed.2d 637 (1973); Jarrett v. Headley, 802 F.2d 34, 42 (2d Cir.1986). The presumption, thus, “is not irrebuttable. If a state court determination is fairly supported by the record, and thus presumed correct, petitioner in a federal evidentiary hearing may nonetheless prevail by shouldering the burden of establishing ‘by convincing evidence that the factual determination by the State court was erroneous.’ ” Lafferty v. Cook, 949 F.2d 1546, 1549 n. 1 (10th Cir.1991) (quoting 28 U.S.C. § 2254(d)). Section 2254(d) requires federal courts to accord deference to implied as well as express findings of fact, Marshall v. Lonberger, 459 U.S. 422, 433-34, 103 S.Ct. 843, 850-51, 74 L.Ed.2d 646 (1983), and to the findings of state appellate courts as well as state trial courts, Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981); Saccomanno v. Scully, 758 F.2d 62, 65 (2nd Cir.1985). While section § 2254(d) does not require deference to state court findings on mixed issues of fact and law such as whether a plea agreement was entered into voluntarily, Lonberger, 459 U.S. at 431-32, 103 S.Ct." }, { "docid": "14423674", "title": "", "text": "42 (2d Cir.1986). The presumption, thus, “is not irrebuttable. If a state court determination is fairly supported by the record, and thus presumed correct, petitioner in a federal evidentiary hearing may nonetheless prevail by shouldering the burden of establishing ‘by convincing evidence that the factual determination by the State court was erroneous.’ ” Lafferty v. Cook, 949 F.2d 1546, 1549 n. 1 (10th Cir.1991) (quoting 28 U.S.C. § 2254(d)). Section 2254(d) requires federal courts to accord deference to implied as well as express findings of fact, Marshall v. Lonberger, 459 U.S. 422, 433-34, 103 S.Ct. 843, 850-51, 74 L.Ed.2d 646 (1983), and to the findings of state appellate courts as well as state trial courts, Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981); Saccomanno v. Scully, 758 F.2d 62, 65 (2nd Cir.1985). While section § 2254(d) does not require deference to state court findings on mixed issues of fact and law such as whether a plea agreement was entered into voluntarily, Lonberger, 459 U.S. at 431-32, 103 S.Ct. at 849-50; Matusiak v. Kelly, 786 F.2d 536, 543-44 (2nd Cir.), cert. dismissed 479 U.S. 805, 107 S.Ct. 248, 93 L.Ed.2d 172 (1986), or whether there has been ineffective assistance of counsel, Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984), the presumption does apply to “matters of ‘historical fact’ and to factual inferences to be drawn from the historical facts.” Matusiak, 786 F.2d at 543; Lonberger, 459 U.S. at 431-32, 103 S.Ct. at 849-50. It therefore covers a state appellate court’s elucidation of the findings of a state trial court, see Parker v. Dugger, — U.S. -, 111 S.Ct. 731, 739, 112 L.Ed.2d 812 (1991) (“a determination of what the trial judge found is an issue of historical fact” and is entitled to a presumption of correctness); Wainwright v. Goode, 464 U.S. 78, 83-85, 104 S.Ct. 378, 381-83, 78 L.Ed.2d 187 (1983), and likewise covers a state court finding as to the parties’ understanding of a plea agreement, see Hart v. Marion Correctional Inst., 927 F.2d 256, 258" }, { "docid": "14423671", "title": "", "text": "the letter itself, the fact that it was mailed to petitioner by counsel he trusted, the fact that it was never discredited, and the fact that it was not flagrantly inconsistent with the plea agreement stated on the record before Judge DeMayo. These facts leave the Court convinced by a preponderance of the evidence that petitioner persisted in relying on the Yamin letter throughout the changes of plea and was not, in fact, aware of the actual sentencing possibilities facing him. Based upon the finding that at the plea allocution Ventura was not “aware of the actual sentencing possibilities facing him,” the district court granted Ventura’s habeas corpus petition. The State appeals this decision. DISCUSSION The central issue on appeal is whether the district court erred in failing to defer under 28 U.S.C. § 2254(d) to state court findings of fact as to the Yamin letter’s effect on Ventura’s decision to plead guilty. We hold that the district court erred, first, in neglecting to defer to the Appellate Court of Connecticut’s determination that the Superior Court had made an implied finding of fact on this issue, and, second, in failing to defer to the Superior Court’s implied finding itself. We therefore reverse. I. The Presumption of Correctness Under 28 U.S.C. § 2254(d). Where a person in custody pursuant to a judgment of a state court petitions for a writ of habeas corpus and alleges facts which, if proven, would be sufficient to gain him relief, the district court may, in its discretion, hold an evidentiary hearing on petitioner’s claim. Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963). Congress, however, has established certain parameters for such hearings. Mindful of the friction that may develop between federal and state courts, and seeking to promote the interests of comity, see Sumner v. Mata, 449 U.S. 539, 547, 550, 101 S.Ct. 764, 769, 770, 66 L.Ed.2d 722 (1981), Congress has enacted 28 U.S.C. § 2254(d) which requires that federal courts hearing a habeas claim defer to state co.urt findings of fact. Under 28 U.S.C. § 2254(d), federal" }, { "docid": "551312", "title": "", "text": "of the incident and Lemon’s testimony regarding his search for the car and identification of Kosik immediately after the incident might both represent fabrications that cast doubt on the rest of their testimony, there is no significant evidence suggesting that is the case, and we conclude that the jury had the right to determine for itself these subsidiary matters and the ultimate accuracy of the trial identifications. There was no constitutional error in admitting the trial identifications. IV The judgment of the trial court denying petitioner-appellant Joseph Kosik a writ of habeas corpus is Affirmed. . Fact determinations by the state courts “shall be presumed to be correct,\" 28 U.S.C. § 2254(d), in a federal habeas court’s review unless certain exceptions are met. See generally Sumner v. Mata, 449 U.S. 539, 545-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981) (Sumner I). The major exception allows the federal courts to make a different determination of fact if \"on a consideration of ... the record as a whole [the federal court] concludes that such factual determination is not fairly supported by the record.” 28 U.S.C. § 2254(d)(8). The statute also outlines several other exceptions, none of which are applicable under the circumstances of this case. Id. § 2254(d)(1)-(d)(7). There is potentially some tension between this deference owed in habeas corpus proceedings to the state courts' factual determinations and the deference owed in the same proceedings to the federal district court’s findings of fact. Compare, e.g., United States ex ret Henne v. Fike, 563 F.2d 809, 813 (7th Cir.1977) (Rule 52(a) applies in review of district court’s factual determinations in a state habeas case), cert. denied, 434 U.S. 1072, 98 S.Ct. 1257, 55 L.Ed.2d 776 (1978) with Burns, 798 F.2d at 940-41 (section 2254(d) presumption favoring accuracy of state courts’ findings applies). While the petitioner has alleged that such tension exists in this case, our application of both standards yields the same result. Specifically, the petitioner has alleged that the district court committed a material error in finding that ”[t]he car could not have been more than the width of one traffic" }, { "docid": "2150740", "title": "", "text": "the district court. The pre-AEDPA version of 28 U.S.C. § 2254(d) obligates federal habeas courts to afford state habeas court fact findings a presumption of correctness, subject to an enumerated list of eight exceptions. See 28 U.S.C. § 2254(d)(l)-(8) (1994). The first seven exceptions in essence provide that the presumption of correctness does not apply unless the petitioner’s habeas claims have been fully and fairly litigated in a state habeas court with jurisdiction to consider the matter. We have already determined, and the parties do not dispute, that Moore’s ineffective assistance of counsel claims received a full and fair adjudication on the merits in the April 1993 evidentiary hearing conducted in the state habeas court. See Moore, 101 F.3d at 1075. We therefore conclude that none of the seven exceptions set forth as § 2254(d)(1) through § 2254(d)(7) are applicable in this case to excuse the presumption of correctness otherwise required by § 2254(d). Instead, the district court expressly tied its selective rejection of the state ha-beas court’s factual determinations to § 2254(d)(8), the final exception in § 2254. Section 2254(d)(8) provides that federal ha-beas courts need not defer to state habeas court fact findings that the federal habeas court determines are “not fairly supported by the record.” See 28 U.S.C. § 2254(d)(8) (1994); Bryant v. Scott, 28 F.3d 1411, 1417 (5th Cir.1994). Under this pre-AEDPA standard, a federal habeas court may not reject state court factual determinations merely on the basis that it disagrees with the state court’s resolution. Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 850, 74 L.Ed.2d 646 (1983); Loyd v. Smith, 899 F.2d 1416, 1425 (5th Cir.1990). Indeed, the federal court may not - reject factual determinations unless it determines that they lack even “fair support” in the record. Marshall, 103 S.Ct. at 850; Smith, 899 F.2d at 1425. But the deference embodied in the pre-AEDPA version of § 2254(d) does not require that the federal court place blinders on its eyes before conducting a habeas corpus review of a state record. To the contrary, the section merely erects a starting place or presumption," }, { "docid": "1040629", "title": "", "text": "83 A.D.2d 843, 843, 441 N.Y.S.2d 815, 816 (2d Dept.1981). This conclusion was necessarily based on a finding that appellee conducted himself “in a manner so disorderly, disruptive, and disrespectful of the court that his trial [could not] be carried on with him in the courtroom.” See Marshall v. Lonberger, 459 U.S. 422, 433, 103 S.Ct. 843, 850, 74 L.Ed.2d 646 (1983) (where the standard of law to be applied is clear and application of that standard to the set of facts alleged by the habeas petitioner would result in the granting of relief, if the state court has ruled against petitioner, federal courts must assume that the state court applied the law properly and found facts contrary to those asserted by petitioner). Under the United States Supreme Court’s decision in Mata, the findings of a state appellate court of competent jurisdiction made after review of the trial court record are entitled to deference under 28 U.S.C. § 2254(d). Mata, 449 U.S. at 546-47, 101 S.Ct. at 768-69. Here, the factual finding that underlies the Appellate Division’s approval of appellee’s exclusion from trial, made after argument and review of the trial court record, clearly falls within the rule of Mata and was entitled to deference by the federal district court. In its decision granting appellee’s petition, the district court did not purport to find any of the conditions enumerated in § 2254(d) that would negate the presumption of correctness normally required to be afforded state court factual findings. Nor did the district court conclude that the finding at issue here was not fairly supported by the record as a whole. In any event, such a conclusion would not be justified. Accordingly, we reverse the decision of the district court. Reversed." }, { "docid": "16858083", "title": "", "text": "applies not only to express findings of fact, but also applies equally to unarticulated findings that are necessary to the state court’s conclusions of mixed questions of fact and law. See Marshall v. Lonberger, 459 U.S. 422, 433, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983) (application of presumption to a credibility determination which was implicit in rejection of defendant’s claim). Where there are two permissible views of the evidence, a fact finder’s choice between them cannot be clearly erroneous. Amadeo v. Zant, 486 U.S. 214, 226, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988) 2. The State Court Legal Determinations Also Enjoy Heavy Deference Because each of Petitioner’s claims have been raised in the California Supreme Court and denied on the merits, this Court must apply the highly deferential standard set forth in AEDPA. See Lindh v. Murphy, 521 U.S. 320, 333, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Title 28, United States Code, section 2254(a), sets forth the following scope of review for federal habeas corpus claims: The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). The standard provides: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). To obtain federal habeas relief, Petitioner must" }, { "docid": "14423672", "title": "", "text": "Court had made an implied finding of fact on this issue, and, second, in failing to defer to the Superior Court’s implied finding itself. We therefore reverse. I. The Presumption of Correctness Under 28 U.S.C. § 2254(d). Where a person in custody pursuant to a judgment of a state court petitions for a writ of habeas corpus and alleges facts which, if proven, would be sufficient to gain him relief, the district court may, in its discretion, hold an evidentiary hearing on petitioner’s claim. Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963). Congress, however, has established certain parameters for such hearings. Mindful of the friction that may develop between federal and state courts, and seeking to promote the interests of comity, see Sumner v. Mata, 449 U.S. 539, 547, 550, 101 S.Ct. 764, 769, 770, 66 L.Ed.2d 722 (1981), Congress has enacted 28 U.S.C. § 2254(d) which requires that federal courts hearing a habeas claim defer to state co.urt findings of fact. Under 28 U.S.C. § 2254(d), federal courts conducting a habeas proceeding must give a “presumption of correctness” to “a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction,” unless the conditions for one of the seven listed exceptions are met or unless the state court findings are not “fairly supported” by the record as a whole. See Sumner, 449 U.S. 539, 550, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981). Where the presumption applies, “the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.” 28 U.S.C. § 2254(d); see also Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 456, 78 L.Ed.2d 267 (1983) (per curiam); Smith v. Phillips, 455 U.S. 209, 218, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982); Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981); LaVallee v. Delle Rose, 410 U.S. 690, 695, 93 S.Ct. 1203, 1205, 35 L.Ed.2d 637 (1973); Jarrett v. Headley, 802 F.2d 34," }, { "docid": "1040628", "title": "", "text": "(requiring that federal courts considering state prisoners’ habeas corpus petitions defer to factual findings of a state court made after a hearing and fairly supported by the record as a whole — unless any one of the several conditions not relevant here is found). In arguing this point, the State contends that § 2254(d) is applicable even though Judge Martin held no hearing since he had personally observed appellee’s disruptive behavior. We need not address either of these arguments. We note that both the appellee and the State were before the state appellate court; appellee was given the opportunity to be heard; and his claim of deprivation of a constitutional right was given plenary consideration there. Consequently, § 2254(d) is applicable to the Appellate Division’s holding that appellee’s exclusion was justified. Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981). In its order and opinion affirming appellee’s conviction, the Appellate Division, after reviewing the record, concluded that “[tjhere was ample justification for the exclusion of defendant from the courtroom.” 83 A.D.2d 843, 843, 441 N.Y.S.2d 815, 816 (2d Dept.1981). This conclusion was necessarily based on a finding that appellee conducted himself “in a manner so disorderly, disruptive, and disrespectful of the court that his trial [could not] be carried on with him in the courtroom.” See Marshall v. Lonberger, 459 U.S. 422, 433, 103 S.Ct. 843, 850, 74 L.Ed.2d 646 (1983) (where the standard of law to be applied is clear and application of that standard to the set of facts alleged by the habeas petitioner would result in the granting of relief, if the state court has ruled against petitioner, federal courts must assume that the state court applied the law properly and found facts contrary to those asserted by petitioner). Under the United States Supreme Court’s decision in Mata, the findings of a state appellate court of competent jurisdiction made after review of the trial court record are entitled to deference under 28 U.S.C. § 2254(d). Mata, 449 U.S. at 546-47, 101 S.Ct. at 768-69. Here, the factual finding that underlies the" }, { "docid": "14423677", "title": "", "text": "v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983). Upon review of the record, we conclude that not only is there “fair support” for the Appellate Court’s express finding of Judge Kline’s implied finding, but that it is fairly compelled. Ventura’s alleged reliance on the letter formed the crux of his habeas petition as amended. For Judge Kline to have denied Ventura’s habeas petition, he must have necessarily found that the Ya-min letter did not induce Ventura’s plea. Judge Kline’s statement that the plea allo-cution “belies the petitioner’s position today” further supports this reading, since at the plea allocution Ventura confirmed that the terms stated by Judge DeMayo were the “sole condition” of his plea agreement. Like the Supreme Court in LaVallee v. Delle Rose, 410 U.S. 690, 692, 93 S.Ct. 1203, 1204, 35 L.Ed.2d 637 (1973), we are of the view that: “[although it is true that the state trial court did not specifically articulate its ... findings, it can scarcely be doubted from its written opinion that respondent’s factual contentions were resolved against him.” Judge Kline’s December 16, 1985 Memorandum of Decision necessarily contained an implied finding of fact that Ventura, in entering his plea, did not rely on the Yamin letter. The district court erred in failing to defer to the Appellate Court of Connecticut’s determination that such a finding had been made, and in failing to acknowledge the Superior Court’s finding. III. The Deference to be Accorded to the Superior Court’s Finding. Having concluded that the Superi- or Court did make an implied finding of fact as to the effect of the Yamin letter, we turn to the proper degree of deference due this finding under § 2254(d). Since, as we will further explain, we believe that this finding is fairly supported by the record, the district court should have accorded it a “presumption of correctness.” The district court therefore erred when it evaluated this issue under a “preponderance of the evidence” standard rather than under a “convincing evidence” standard. While we would generally direct the district court to reconsider the" }, { "docid": "8692525", "title": "", "text": "21, 1992, the Ohio Supreme Court denied Caldwell’s petition for leave to appeal to that forum. On February 4, 1994, acting pro se, Caldwell applied in the United States District Court for the Southern District of Ohio for a writ of habeas corpus under 28 U.S.C. § 2254. Following the district court’s May 7, 1996 adoption, over Caldwell’s objections, of a magistrate judge’s report and recommendation which had counselled rejection of each of Caldwell’s three assignments of constitutional error, and the court’s issuance of a certificate of probable cause authorized by former 28 U.S.C. § 2253, Caldwell on May 28, 1996 initiated a pro se appeal to the Sixth Circuit. On March 24, 1998, this court sua sponte appointed counsel to prosecute Caldwell’s appeal. Caldwell’s court-sponsored attorney has briefed and argued his appeal before this forum. A federal appellate court reviews section 2254 inmate petitions de novo; although district court findings of fact are generally reviewed for clear error, factual findings based upon the district court’s review of state court records or written decisions (such as those made by the district court in the case sub judice) receive plenary review. Moore v. Carlton, 74 F.3d 689, 690-91 (6th Cir.1996). Under the pre-April 24, 1996 version of section 2254, which governs this action (see note 3 above), federal courts generally accord a “presumption of correctness” to state court factual findings. 28 U.S.C. § 2254(d) (repealed); see Marshall v. Lonberger, 459 U.S. 422, 431-32, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983). Whereas an appellate court on habeas review decides federal law questions de novo, Marshall, 459 U.S. at 431, 103 S.Ct. 843, the federal reviewing court is generally bound by state court interpre tations of state law. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). “[T]o obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). A section 2254 habeas petitioner must prove that a state court trial error had denied him a federal" }, { "docid": "8731668", "title": "", "text": "Although he was convicted of the lesser charge, Knapp was sentenced as a persistent felony offender pursuant to N.Y.Penal Law § 70.10 to an enhanced sentence of twenty-five years to life imprisonment — the same sentence he received for his initial conviction. On direct appeal, Knapp argued that his conviction should be reversed for the same reasons he now presents in his habeas petition, and the Appellate Division affirmed his conviction. People v. Knapp, 113 A.D.2d 154, 495 N.Y.S.2d 985 (3d Dep’t 1985) (“Knapp III ”). The Court of Appeals denied review, People v. Knapp, 67 N.Y.2d 945, 494 N.E.2d 123, 502 N.Y.S.2d 1038 (1986), and the Supreme Court denied certiorari. Knapp v. New York, 479 U.S. 844, 107 S.Ct. 158, 93 L.Ed.2d 97 (1986). D. The Proceedings in Federal Court. On October 4, 1988, Knapp filed a pro se petition for a writ of habeas corpus in the United States District Court for the Northern District of New York, asserting the grounds for relief summarized earlier in this opinion. The case was referred to Magistrate Judge Ralph W. Smith, who recommended that the petition be denied in a detailed report-recommendation. Knapp v. Leonardo, No. 88-CV-1034 NPM, slip op. (N.D.N.Y. July 7, 1993) (“Knapp IV”). The district court approved the report-recommendation and entered judgment dismissing Knapp’s petition. The district court also denied Knapp’s subsequent motion for reconsideration. This appeal followed. Discussion We note at the outset that under 28 U.S.C. § 2254(d), in the absence of exceptional circumstances that are not presented in this case, the factual findings of trial and appellate state courts are presumed to be correct in federal habeas proceedings unless they are not “fairly supported by the record.” 28 U.S.C. § 2254(d)(8); see also Demosthenes v. Baal, 495 U.S. 731, 735, 110 S.Ct. 2223, 2225, 109 L.Ed.2d 762 (1990) (per curiam). Further, a petitioner must establish by “convincing evidence” that the state court’s factual findings are erroneous. § 2254(d); see also Senna v. Patrissi, 5 F.3d 18, 20 (2d Cir.1993) (per curiam); Ventura v. Meachum, 957 F.2d 1048, 1054 (2d Cir.1992). Questions of law, by contrast," }, { "docid": "10529873", "title": "", "text": "federal habeas court. If none of those seven conditions were found to exist, or unless the habeas court concludes that the relevant state-court determination is not “fairly supported by the record,” [under § 2254(d)(8)] “the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.” (Emphasis supplied.) Id. at 550-51, 101 S.Ct. at 770-71. In turn, Sumner states that § 2254(d) provides no specific procedural requirements for there to be a “hearing on the merits of a factual issue,” other than that the petitioner and respondent be parties to the state proceeding and that the state-court decision be “evidenced by a written finding, written opinion, or other reliable and adequate written indicia.” Id. at 546-47, 101 S.Ct. at 768-69 (citing § 2254(d)). Recent cases concerning a habeas petitioner’s entitlement to an evidentiary hearing have held to the Sumner standard. See, e.g., Lesko v. Lehman, 925 F.2d 1527, 1538 (3d Cir.1991) (stating that 28 U.S.C. § 2254(d) “provides that a habeas court shall accord a presumption of correctness to ‘a determination after a hearing on the merits of a factual issue’ made in the course of the petitioner’s state court proceedings;” this presumption may be rebutted, however, “by a showing that the state court determination was deficient for one of the reasons specified” under the statute); Casper v. Ryan, 822 F.2d 1283, 1291 (3d Cir.1987) (“We must give the Superior Court’s findings of fact a presumption of correctness unless we determine that they are not fairly supported by the record.”) (citing 28 U.S.C. § 2254(d)(8)), cert. denied, 484 U.S. 1012, 108 S.Ct. 714, 98 L.Ed.2d 664 (1988). Moreover, we have made such determinations based upon references to § 2254(d) in general, without a specific discussion of any of the eight numbered factors. See, e.g., Riddick v. Edmiston, 894 F.2d 586, 592 (3d Cir.1990) (denying a hearing under § 2254(d) because the prosecutor did not improperly exclude black jurors). As we will show, both the magistrate judge and the district court examined Reese’s claims at length to support the presumption of" }, { "docid": "14423676", "title": "", "text": "(6th Cir.), cert. denied — U.S. -, 112 S.Ct. 70, 116 L.Ed.2d 44 (1991) (federal courts must defer to state courts’ determination of petitioner’s awareness of sentencing possibilities). II. Whether There was a Superior Court Finding. In the present case, the district court ruled that the Superior Court had not made a finding on the effect of the Yamin letter. Without such a finding, there could . be no deference or presumption of correctness and so the district court evaluated the issue under a “mere preponderance of the evidence” standard, not the “convincing evidence” standard required under § 2254(d). Our first step is to ascertain whether Judge Kline did indeed make a finding on this issue. It is clear to us that he did. In accordance with Parker and Goode, supra, we give deference to the Appellate Court of Connecticut’s determination that the Superior Court made an implied finding as to the effect of the Yamin letter. We must, therefore, presume this determination to be correct unless it lacks “fair support” in the record. Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983). Upon review of the record, we conclude that not only is there “fair support” for the Appellate Court’s express finding of Judge Kline’s implied finding, but that it is fairly compelled. Ventura’s alleged reliance on the letter formed the crux of his habeas petition as amended. For Judge Kline to have denied Ventura’s habeas petition, he must have necessarily found that the Ya-min letter did not induce Ventura’s plea. Judge Kline’s statement that the plea allo-cution “belies the petitioner’s position today” further supports this reading, since at the plea allocution Ventura confirmed that the terms stated by Judge DeMayo were the “sole condition” of his plea agreement. Like the Supreme Court in LaVallee v. Delle Rose, 410 U.S. 690, 692, 93 S.Ct. 1203, 1204, 35 L.Ed.2d 637 (1973), we are of the view that: “[although it is true that the state trial court did not specifically articulate its ... findings, it can scarcely be doubted from its written opinion that respondent’s" } ]

[ { "docid": "11167685", "title": "", "text": "Co., 3 Cir., 1954, 216 F.2d 331, where the court said: “It is to be borne in mind that our function on an appeal is not the same as that of the trial judge. In his discretion he may order a new trial if he thinks a verdict excessive. Fed.R.Civ.P. 59(a), 28 U.S.C.A. In this case the trial judge thought that the verdict was more than he would have given but was not sufficiently excessive to shock his conscience. As this Court has stated in Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 1951, 190 F.2d 825, 830, we will not substitute our judgment for that of the trial court as to whether the verdict is excessive. Our function is to determino whether the verdict is so grossly excessive as to justify reversal on the ground that the denial of the motion for a new trial constituted an abuse of discretion. Ibid. We find no abuse of discretion in what the trial court did here.” Chicago, Rock Island & Pacific Ry. Co. v. Kifer, 10 Cir., 1954, 216 F.2d 753, certiorari denied 348 U.S. 917, 75 S. Ct. 299, where the court said: “A Circuit Court of Appeals may not review the action of a District Court in granting a motion for a new trial on the ground the damages awarded by the jury were excessive, because that is an error of fact. [Citing Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 53 S. Ct. 252, 77 L.Ed. 439.] Our province is limited to determining whether the trial court, in denying the motion, abused its discretion. Ordinarily, it will not be held that the trial court abused its disere tion in denying a motion for new trial on the ground that the verdict was excessive, unless it affirmatively appears that it resulted from bias, prejudice, or passion.” 216 F.2d at pages 756-757. . Neese v. Southern Railway Co., 76 S.Ct. 131. Cf. also Snyder v. United States, 76 S.Ct. 191, where the appellate court (United States v. Guyer, 4 Cir., 1954, 218 F.2d 266) had reduced non-jury" } ]

[ { "docid": "21189622", "title": "", "text": "79 U.S.App.D.C. 102, 143 F.2d 142 (1944). . Each appellant had filed cross claims seeking indemnity or contribution from the other two co-defendants. Such issues, by stipulation, were to be decided by the judge. He concluded that each was equally answerable with the others for the damages awarded to the appellee. See our opinion in No. 17736 — Sinclair Refining Company v. Toomey, et al., 117 U.S.App.D.C. •-, 329 F.2d 881 (decided February 6, 1964). . Restatement, Torts § 367 (1934) which reads: “A possessor of land who so maintains a part thereof that he knows or should know that others will reasonably believe it to be a public highway, is subject to liability for bodily harm caused to them while using such part as a highway, by his failure to exercise reasonable care to maintain it in a reasonably safe condition for travel.” And see Daly v. Toomey, supra, note 1; cf. Daisey v. Colonial Parking, Inc., 118 U.S.App.D.C. -, 331 F.2d 777 (1963). . And see Dimick v. Schiedt, 293 U.S. 474, 486, 487, 55 S.Ct. 296, 79 L.Ed. 603 (1935). . We applied the principle of the Neese case in Hulett v. Brinson, 97 U.S.App.D.C. 139, 143, 229 F.2d 22, 26 (1955), cert. denied, 350 U.S. 1014, 76 S.Ct. 659, 100 L.Ed. 874 (1956). See generally, James, Remedies for Excessiveness or Inadequacy of Verdicts, 1 Duquesne L.Rev. 143 (1963). . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); Lias v. United States, 51 F.2d 215, 218 (4 Cir.), aff’d, 284 U.S. 584, 52 S.Ct. 128, 76 L.Ed. 505 (1931). . Hoagland v. Chestnut Farms Dairy, 63 App.D.C. 357, 72 F.2d 729 (1934); Capital Transit Co. v. Howard, 90 U.S.App.D.C. 359, 196 F.2d 593 (1952); and see Orthopedic Equipment Co. v. Eutsler, 276 F.2d 455, 462, 463, 79 A.L.R.2d 390 (4 Cir. 1960) ; John Fabick Tractor Company v. Lizza & Sons, Inc., 298 F.2d 63 (2 Cir. 1962). . Defined variously in many eases, the term is meaningful, and well put by Mr. Justice Sutherland in Langnes v. Green, 282 U.S." }, { "docid": "22090736", "title": "", "text": "judgment affirming the judgment of the District Court. It is so ordered. Petitioner’s complaint sought damages of $250,000. This was amended with leave of the trial judge to $305,000 after the jury-returned its verdict in that amount. The Court of Appeals rejected the railroad’s grounds of appeal addressed to liability and to the dismissal of a third-party claim of the railroad against the contracting company which furnished a boom truck used by the track gang. None of those questions was brought here. All 11 courts of appeals have held that nothing in the Seventh Amendment precludes appellate review of the trial judge’s denial of a motion to set aside an award as excessive. Boyle v. Bond, 88 U. S. App. D. C. 178, 187 F. 2d 362 (1951); Compania Trasatlantica Espanola, S. A. v. Melendez Torres, 358 F. 2d 209 (C. A. 1st Cir. 1966); Dagnello v. Long Island R. Co., 289 F. 2d 797 (C. A. 2d Cir. 1961); Russell v. Monongahela R. Co., 262 F. 2d 349, 352 (C. A. 3d Cir. 1958); Virginian R. Co. v. Armentrout, 166 F. 2d 400 (C. A. 4th Cir. 1948); Glazer v. Glazer, 374 F. 2d 390 (C. A. 5th Cir. 1967); Gault v. Poor Sisters of St. Frances, 375 F. 2d 539, 547-548 (C. A. 6th Cir. 1967); Bucher v. Krause, 200 F. 2d 576, 586-587 (C. A. 7th Cir.1952); Bankers Life & Cas. Co. v. Kirtley, 307 F. 2d 418 (C. A. 8th Cir. 1962); Covey Gas & Oil Co. v. Checketts, 187 F. 2d 561 (C. A. 9th Cir. 1951); Barnes v. Smith, 305 F. 2d 226, 228 (C. A. 10th Cir. 1962). The standard has been variously phrased: “Common phrases are such as: ‘grossly excessive,’ ‘inordinate,’ ‘shocking to the judicial conscience,’ ‘outrageously excessive,’ ‘so large as to shock the conscience of the court,’ ‘monstrous,’ and many others.” Dagnello v. Long Island R. Co., supra, at 802. Mr. Justice Harlan, dissenting. I think it clear that the only issue which might conceivably justify the presence of this case in this Court is whether a United States Court of" }, { "docid": "22057168", "title": "", "text": "be had as may be just under the circumstances.” . First Circuit: Ballard v. Forbes, 1954, 208 F.2d 883. Third Circuit: Wooley v. Great Atlantic & Pacific Tea Co., 1960, 281 F.2d 78; Trowbridge v. Abrasive Co. of Philadelphia, 1951, 190 F.2d 825. Fourth Circuit: Virginia Ry. Co. v. Armentrout, 1948, 166 F.2d 400, 4 A.L.R. 2d 1064. Sixth Circuit: Sebring Trucking Co. v. White, 1951, 187 F.2d 486. Seventh Circuit: Bucher v. Krause, 1952, 200 F.2d 576, certiorari denied Krause v. Bucher, 1953, 345 U.S. 997, 73 S.Ct. 1141, 97 L.Ed. 1404. Ninth Circuit: Siebrand v. Gossnell, 1956, 234 F.2d 81; Southern Pac. Co. v. Guthrie, 1951, 186 F.2d 926; Department of Water and Power of City of Los Angeles v. Anderson, 1938, 95 F.2d 577; Cobb v. Lepisto, 1925, 6 F.2d 128. Tenth Circuit: Smith v. Welch, 1951, 189 F.2d 832. D. C. Circuit: Boyle v. Bond, 1951, 88 U.S.App.D.C. 178, 187 F.2d 362; cf. Hulett v. Brinson, 1956, 97 U.S.App.D.C. 139, 229 F.2d 22. . See Southern Pac. Co. v. Zehnle, 9 Cir., 1947, 163 F.2d 453; Snowden v. Matthews, 10 Cir., 1947, 160 F.2d 130; Earl W. Baker & Co. v. Lagaly, 10 Cir., 1944, 144 F.2d 344, 154 A.L.R. 1098. . Dimick v. Schiedt, 1935, 293 U.S. 474, 488, 55 S.Ct. 296, 79 L.Ed. 603. . Dimick v. Schiedt, supra, 293 U.S. at pages 491-492, and note 2, 55 S.Ct. at page 303; Moore’s Federal Practice, Vol. 6, p. 3828; Riddell, New Trial at the Common Law, 26 Yale L.J. 49 (1916); Blume, Review of Facts in Jury Cases— The Seventh Amendment, 20 J.Am.Jud. Soc’y 130, 131 (1936); Comment, Federal Appellate Review of Excessive or Inadequate Damage Awards, 28 Fordham L.Rev. 500, 503 (1959); Comment, Federal Review of Excessive Verdicts, 30 Texas L.Rev. 242, 245 n. 27 (1951); Comment, 32 Mich.L.Rev. 387, 391 (1934); 65 Harv.L.Rev. 1064, 1065 (1952). . While the Court in Dimick v. Sehiedt concluded that there was some English precedent for remittur, it did not state whether in England the trial judge had the power to grant the remittitur. Since the" }, { "docid": "22057167", "title": "", "text": "590, 95 N.W.2d 269. Wyoming: Borzea v. Anselmi, 1952, 71 Wyo. 348, 258 P.2d 796; Northwest States Utilities Co. v. Ashton, 1937, 51 Wyo. 168, 65 P.2d 235. . See Miller v. Maryland Casualty Co., 2 Cir., 1930, 40 F.2d 463, 464-465; Moore’s Federal Practice, Vol. 6, p. 3825. . See Southern Pac. Co. v. Guthrie, 9 Cir., 1951, 186 F.2d 926. . Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 1951, 190 F.2d 825; Southern Pac. Co. v. Guthrie, supra; Richter and Forer, Federal Employers’ Liability Act, 1952, 12 F.R.D. 13, 67; cf., Bainbrich v. Hammond Iron Works, supra; Wetherbee v. Elgin, Joliet & Eastern Ry., 7 Cir., 1951, 191 F.2d 302, 310. . 28 U.S.C. Section 2106. It provides: “The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.” . First Circuit: Ballard v. Forbes, 1954, 208 F.2d 883. Third Circuit: Wooley v. Great Atlantic & Pacific Tea Co., 1960, 281 F.2d 78; Trowbridge v. Abrasive Co. of Philadelphia, 1951, 190 F.2d 825. Fourth Circuit: Virginia Ry. Co. v. Armentrout, 1948, 166 F.2d 400, 4 A.L.R. 2d 1064. Sixth Circuit: Sebring Trucking Co. v. White, 1951, 187 F.2d 486. Seventh Circuit: Bucher v. Krause, 1952, 200 F.2d 576, certiorari denied Krause v. Bucher, 1953, 345 U.S. 997, 73 S.Ct. 1141, 97 L.Ed. 1404. Ninth Circuit: Siebrand v. Gossnell, 1956, 234 F.2d 81; Southern Pac. Co. v. Guthrie, 1951, 186 F.2d 926; Department of Water and Power of City of Los Angeles v. Anderson, 1938, 95 F.2d 577; Cobb v. Lepisto, 1925, 6 F.2d 128. Tenth Circuit: Smith v. Welch, 1951, 189 F.2d 832. D. C. Circuit: Boyle v. Bond, 1951, 88 U.S.App.D.C. 178, 187 F.2d 362; cf. Hulett v. Brinson, 1956, 97 U.S.App.D.C. 139, 229 F.2d 22. . See Southern Pac. Co. v. Zehnle, 9" }, { "docid": "23489086", "title": "", "text": "not subsist now without a power, somewhere, to grant new trial_ It is absolutely necessary to justice, that there should, upon many occasions, be opportunities of reconsidering the cause by a new trial.” Bright v. Eynon, 1 Burr. 390, 393 (K.B. 1757) (Lord Mansfield) (quoted by Judge John J. Parker in Aetna Cas. & Sur. Company v. Yeatts, 122 F.2d 350, 353-54 (4th Cir.1941)). Therefore, when a court finds that a jury’s award of damages is excessive, it may grant the defendant a new trial. Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 433, 116 5.Ct. 2211, 135 L.Ed.2d 659 (1996). A federal court’s power to “order” a remittitur grew out of this authority to grant a new trial. A court which believes the jury’s verdict is excessive may order a new trial unless the plaintiff agrees to remit a portion of the jury’s award. Dimick v. Schiedt, 293 U.S. 474, 486-87, 55 S.Ct. 296, 79 L.Ed. 603 (1935). This practice dates from Justice Story’s opinion in Blunt v. Little, 3 F.Cas. 760, 761-62 (No. 1578) (C.C.D.Mass.1822) (Story, J.), in which he announced that, because the verdict was not supported by the evidence, unless the plaintiff was willing to remit $500 of his damages, the cause would be submitted to another jury. Although Justice Story cited no authority whatever, the Supreme Court has \"never expressed doubt with respect to this rule.\" Dimick, 293 U.S. at 486, 55 S.Ct. 296. See e.g., Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966); Arkansas Valley Land & Cattle Co. v. Mann, 130 U.s. 69, 9 S.Ct. 458, 32 L.Ed. 854 (1889); Northern. Pac. R. Co. v. Herbert, 116 U.S. 642, 646-47, 6 S.Ct. 590, 29 L.Ed. 755 (1886). The Seventh Amendment requires, however, that the plaintiff be given the option of a new trial in lieu of remitting a portion of the jury's award. Hetzel v. Prince William County, Va., 523 U.S. 208, 118 S.Ct. 1210, 1211, 140 L.Ed.2d 336 (1998). In Hetzel the Supreme Court reversed the Fourth Circuit's mandamus" }, { "docid": "649802", "title": "", "text": "U.S. 642, 646, 6 S.Ct. 590, 29 L.Ed. 755; Arkansas Valley Land & Cattle Co. v. Mann, 1889, 130 U.S. 69, 9 S.Ct. 458, 32 L.Ed. 854; Dimmick v. Schiedt, 1935, 293 U.S. 274, 281-283, 55 S.Ct. 296, 79 L.Ed. 603, 95 A.L.R. 1150. Except under extraordinary circumstances, which do not obtain in this case, appellate courts will not review judgments for ex-cessiveness or reduce them. See Smith v. Socony-Vacuum Oil Co., 2 Cir., 1938, 96 F.2d 98, 102; Herring v. Luckenbach S. S. Co., 2 Cir., 1943, 137 F.2d 598, 599; Southern Railway-Carolina Division v. Bennett, 1914, 233 U.S. 80, 87, 34 S.Ct. 566, 58 L.Ed. 860; Scott v. Baltimore & Ohio R. Co., 3 Cir., 1945, 151 F.2d 61, 65. The deceased was 49 years old at the time of the accident, was in good health and had a life expectancy of 23.36 years. He was in business for himself, being the owner of the P. F. Casing Company, a concern engaged in the treatment and sale of casings for meats. It was stipulated that the net earnings from his business were: 1943 — $7,552.55; 1944 — $12,262.56; 1945— $15,195.92; 1946 — $18,316.08, and that the widow had “no property or income separate and apart from her community interest”. The widow was not able to carry on the business successfully after his death, and testified that she “lost it.” An award of damages to a widow and two small children for the loss of the head of the family with such expectancy, engaged in a successful business, with good earning capacity, is not so “outrageously excessive” as to call for interference by this court. See Arkansas Valley Land & Cattle Co. v. Mann, 1889, 130 U.S. 69, 74, 9 S.Ct. 458, 32 L.Ed. 854; Zarek v. Fredericks, 3 Cir., 1943, 138 F.2d 689, 691; Southern Pacific Co. v. Zehnle, 9 Cir., 1947, 163 F.2d 453; Hicks v. Ocean Shore Railroad, Inc., 1941, 18 Cal.2d 773, 783-785, 117 P.2d 850; Roedder v. Lindsley, 1946, 28 Cal.2d 820, 822-824, 172 P.2d 353. One other matter should be adverted to briefly." }, { "docid": "23441784", "title": "", "text": "14 N.Y.2d 281, 288, 251 N.Y.S.2d 433, 200 N.E.2d 427 (1964). . See Southern Pac. Co. v. Bogert, 250 U.S. 483, 491-92, 39 S.Ct. 533, 63 L.Ed. 1099 (1919); Gratz v. Claughton, 187 F.2d 46, 49-50 (2d Cir.), cert. denied, 341 U.S. 920, 71 S.Ct. 741, 95 L.Ed. 1353 (1950). Cf. Blau v. Mission Corp., 212 F.2d 77, 80 (2d Cir.), cert. denied, 347 U.S. 1016, 74 S.Ct. 872, 98 L.Ed. 1138 (1954). . Austrian v. Williams, 103 F.Supp. 64, 73 (S.D.N.Y.), rev’d on other grounds, 198 F.2d 697 (2d Cir.), cert. denied, 344 U.S. 909, 73 S.Ct. 328, 97 L.Ed. 701 (1952). . Southern Pac. Co. v. Bogert, 250 U.S. 483, 492, 39 S.Ct. 533, 63 L.Ed. 1099 (1919). . Jackson v. Smith, 254 U.S. 586, 589, 41 S.Ct. 200, 65 L.Ed. 418 (1921); Bankers Life & Cas. Co. v. Kirtley, 338 F.2d 1006, 1013 (8th Cir. 1964); Sexton v. Sword S.S. Line, Inc., 118 F.2d 708, 711 (2d Cir. 1941); Irving Trust Co. v. Deutsch, 73 F.2d 121, 125 (2d Cir. 1934), cert. denied, 294 U.S. 708-709, 55 S.Ct. 405, 79 L.Ed. 1243 (1935); Industrial Waxes, Inc. v. International Ry., 193 F.Supp. 783, 786 (S.D.N.Y.1961); Austrian v. Williams, 103 F.Supp. 64, 76 (S.D.N.Y.), rev’d on other grounds, 198 F.2d 697 (2d Cir.), cert. denied, 344 U.S. 909, 73 S. Ct. 328, 97 L.Ed. 701 (1952); Broadcast Music, Inc. v. Taylor, 10 Misc.2d 9, 55 N.Y.S.2d 94, 103 (Sup.Ct.1945). Cf. Wendt v. Fischer, 243 N.Y. 439, 154 N.E. 303 (1926). . See Vaughan v. Empresas Hondurenas, 171 F.2d 46, 47-48 (5th Cir. 1948); Smithson v. Roneo, Ltd., 231 F. 349, 351 (E.D.N.Y.1916). See also, Niccum v. Northern Assur. Co., 17 F.2d 160, 164 (D.Ind.1927); Sandusky Foundry & Mach. Co. v. De Lavaud, 251 F. 631, 632 (N.D. Ohio 1918); H. G. Baker & Bro. v. Pinkham, 211 F. 728, 730 (E.D.S.C. 1914). . The Supreme Court has not always accepted the Reviser’s comment that a particular statutory provision reflected a codification of existing law. For example, although the Reviser’s Note states that 28 U.S.C. § 1404(a) “was drafted in" }, { "docid": "17930880", "title": "", "text": "The question usually arises in tort actions, although it is not so restricted. Gasoline Products Co. v. Champlin Refining Co., supra, 283 U.S. 494, 500, 51 S.Ct. 513, 75 L.Ed. 1188. The present action is a tort action. See also: W. T. Grant Co. v. Tanner, 170 Tenn. 451, 95 S.W.2d 926; Simmons v. Fish, 210 Mass. 563, 97 N.E. 102; Leipert v. Honold, 39 Cal.2d 462, 247 P.2d 324, 29 A.L.R.2d 1185; Johnson v. Sgourakis, 20 N.J. Super. 77, 89 A.2d 273; Parker v. Allen, 171 Kan. 360, 233 P.2d 514; Flaugh v. Egan Chevrolet, Inc., 202 Minn. 615, 279 N.W. 582; Reay v. Beasley, 49 Ariz. 362, 66 P.2d 1043; Murray v. Krenz, 94 Conn. 503, 109 A. 859, 861. I do not believe the ruling in Southern Railway Company v. Neese, 4 Cir., 216 F.2d 772, cited in the majority opinion, should be relied upon. As noted in the majority opinion this ruling of the Court of Appeals was subsequently reversed by the Supreme Court, 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60. Also, the same Court of Appeals later held that where it is clear that an inadequate verdict is a compromise verdict, the new trial should not be limited to the question of damages alone. Southern Railway Company v. Madden, supra, 4 Cir., 235 F.2d 198, 204. I think the statement of the Supreme Court in Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603, is directly applicable to this case and states the rule which we should follow. The Court said: “Where the verdict returned by a jury is palpably and grossly inadequate or excessive, it should not be permitted to stand; but, in that event, both parties remain entitled, as they were entitled in the first instance, to have a jury properly determine the question of liability and the extent of the injury by an assessment of damages.” (Emphasis added.) As pointed out in the majority opinion, this court has in two cases held that a new trial should have been granted by reason of inadequacy of" }, { "docid": "22576690", "title": "", "text": "some comparatively recent decisions denying the right to review; the exercise of the trial court’s discretion. Scott v. Baltimore & O. R. Co., 3 Cir., 151 F.2d 61; McCoy v. Cate, 1 Cir., 117 F.2d 194. Some of these cases appear to reach the rather astounding conclusion that there is no power to- review an alleged abuse of the lower court’s discretion. Recognizing the emasculatory effect of such a doctrine on their reviewing function, some courts have resorted to “accepted” bases of review. Thus, in Earl W. Baker & Co. v. Lagaly, 10 Cir., 144 F.2d 344, 154 A.L.R. 1098 and Snowden v. Matthews, 10 Cir., 160 F.2d 130, the court indicated that passion and-prejudice on the part of the jury could, in the case of an excessive verdict, be inferred from the enormity of the sum awarded. This court has rejected such a rationale. See Wetherbee v. Elgin, Joliet and Eastern Ry. Co., supra and cases there cited. Another inventive process offered to justify review is found in Sinclair Refining Co. v. Tompkins, 5 Cir., 117 F.2d 596, wherein it was held that any large verdict’ will always impel a careful search of the record for prejudicial error. Such an approach we think is misleading, for the existence or non-existence of procedural error in the trial of a cause should seldom be decisive of the propriety of the size of the verdict. There are, however, many decisions of relatively recent date, with which we find ourselves in accord, which meet head on the problem at hand and conclude that a court of review may, with propriety, ascertain whether the trial court abused its discretion in failing to grant a new trial because of an excessive verdict. Cobb v. Lepisto, 9 Cir., 6 F.2d 128; Southern Pac. Co. v. Guthrie, 9 Cir., 180 F.2d 295, on rehearing, 9 Cir., 186 F.2d 926, certiorari denied 341 U.S. 904, 71 S.Ct. 614, 95 L.Ed. 1343; Covey Gas & Oil Co. v. Checketts, 9 Cir., 187 F.2d 561; Virginian Ry. Co. v. Armentrout, 4 Cir., 166 F.2d 400, 4 A.L.R. 2d 1064; see" }, { "docid": "2466234", "title": "", "text": "in favor of Philip Comiskey was dismissed at the beginning of trial and is not before us. The case of Katherine Co-miskey was submitted to the jury, which returned a verdict in her favor for $40,-000. Defendant made motions to set aside the verdict and for a new trial, and raised the issue of excessive damages, The evidence adduced by Katherine-Comiskey in support of her allegations presented a sufficient question for submission to the jury. The testimony showed that the defendant did not stop the plaintiff from working on the job of sorting parcel post, where she had to handle packages weighing up to approximately 70 pounds, after she had complained that the work was too heavy for her. Whether or not she was forced to work beyond her strength and without adequate assistance was properly left to the jury to determine. The verdict of the jury was large, but we do not think in the present posture of the case we should attempt to decide if in the light of all the evidence it was so excessive as to require a new trial. For we think that under the circumstances this issue should be returned to the trial judge for his consideration. Judge Noonan stated at the trial: “ * * * I would be inclined to reduce the verdict to $35,000 if I had the power and I am not sure that I have that.” Although he could not reduce the verdict, he could have conditioned his denial of motion for a new trial upon remittitur of the excess amount by plaintiff. Dimick v. Schiedt, 293 U.S. 474, 482, 55 S.Ct. 296, 79 L.Ed. 603. The matter of excessive damages is primarily within the discretion of the trial judge, see Kennair v. Mississippi Shipping Co., 2 Cir., 197 F.2d 605; Nagle v. Isbrandtsen Co., 2 Cir., 177 F.2d 163, though we may review his decision for abuse of discretion. See Bucher v. Krause, 7 Cir., 200 F.2d 576, certiorari denied Krause v. Bucher, 345 U.S. 997, 73 S.Ct. 1141, 97 L.Ed. 1404. Thus it appears from the record" }, { "docid": "6294848", "title": "", "text": "in the exercise of his undoubted power and his equally undoubted duty to relieve against such excessiveness, if, in his judgment, it was excessive in fact, that is, was larger in amount than he thought it justly ought to be. . Virginia Railway Co. v. Armentrout, 4 Cir., 166 F.2d 400, 4 A.L.R.2d 1064; Affolder v. N.Y., 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed. 683; Barry v. Edmunds, 116 U.S. 550, 6 S.Ct. 501, 29 L.Ed. 729; So. Pac. v. Guthrie, 9 Cir., 180 F.2d 295; on rehearing, 9 Cir., 186 F.2d 926; But see, contra, St. Louis, S. W. Ry. Co. v. Ferguson, 8 Cir., 182 F.2d 949. . Crowell-Collier v. Caldwell, 5 Cir., 170 F.2d 941. . Law and Fact in Insurance Oases, Texas Law Review, Dec., 1944, at pp. 4, 5, and 6; Reid v. Maryland Cas. Co., 5 Cir., 63 F.2d 10; Quanah A. & P. R. Co. v. Gray, 5 Cir., 63 F.2d 410; Howard v. Louisiana 6 R. Co., 5 Cir., 49 F.2d 571; Chamberlayne, “The Modern Law of Evidence,” Secs. 120(a), 122, 145, 148 and 149. . Cobb v. Lepisto, 9 Cir., 6 F.2d 128; Virginia Ry. Co. v. Armentrout, 4 Cir., 166 F.2d 408, 4 A.L.R.2d 1064; Southern Pacific v. Guthrie, 9 Cir., 186 F.2d 926, at page 933 and note 11; Reid v. Maryland Gas. Co., 5 Cir., 63 F.2d 10, at p. 12. HOLMES, Circuit Judge (dissenting). The majority opinion did not discuss the constitutional question in this case, or the factual issue as to the amount of the verdict being manifestly excessive; but often what a court does is more important than what it says. Sometimes what the courts do speak so loudly that we cannot hear what they say, but that is not what happened here. Obviously, this court determined either that the moderated verdict was not manifestly excessive or that it had no constitutional power to examine the question. Either holding was prejudicially erroneous, the latter for reasons already fully discussed in the dissent, the former for reasons presently to be stated. The court expressly held" }, { "docid": "22057169", "title": "", "text": "Cir., 1947, 163 F.2d 453; Snowden v. Matthews, 10 Cir., 1947, 160 F.2d 130; Earl W. Baker & Co. v. Lagaly, 10 Cir., 1944, 144 F.2d 344, 154 A.L.R. 1098. . Dimick v. Schiedt, 1935, 293 U.S. 474, 488, 55 S.Ct. 296, 79 L.Ed. 603. . Dimick v. Schiedt, supra, 293 U.S. at pages 491-492, and note 2, 55 S.Ct. at page 303; Moore’s Federal Practice, Vol. 6, p. 3828; Riddell, New Trial at the Common Law, 26 Yale L.J. 49 (1916); Blume, Review of Facts in Jury Cases— The Seventh Amendment, 20 J.Am.Jud. Soc’y 130, 131 (1936); Comment, Federal Appellate Review of Excessive or Inadequate Damage Awards, 28 Fordham L.Rev. 500, 503 (1959); Comment, Federal Review of Excessive Verdicts, 30 Texas L.Rev. 242, 245 n. 27 (1951); Comment, 32 Mich.L.Rev. 387, 391 (1934); 65 Harv.L.Rev. 1064, 1065 (1952). . While the Court in Dimick v. Sehiedt concluded that there was some English precedent for remittur, it did not state whether in England the trial judge had the power to grant the remittitur. Since the English trial judge had no power to grant a new trial, it is to be assumed that he could not grant a remittitur. . The English practice prior to the adoption of the Seventh Amendment and the light it throws on the problem at hand are also discussed in Dimick v. Schiedt, supra, 293 U.S. at pages 491-492, 55 S.Ct. at page 303; Moore’s Federal Practice, Vol. 6, pp. 3827-3828; Hinton, Power of Federal Appellate Court to Review Ruling on Motion for New Trial, 1 U.Chi.L.Rev. 111 (1933); Riddell, New Trial at the Common Law, 26 Yale L.J. 49 (1916); Blume, Review of Facts in Jury Cases — The Seventh Amendment, 20 J.Am.Jud.Soc’y 130 (1936); Note, Appealability of Rulings for New Trial in the Federal Courts, 98 U.Pa.L.Rev. 575 (1950) ; Comment, Federal Appellate Review of Excessive or Inadequate Damage Awards, 28 Fordham L.Rev. 500 (1959); Comment, Federal Review of Excessive Verdicts, 30 Texas L.Rev. 242 (1951) ; Comment, 32 Mich.L.Rev. 387 (1934); 65 Harv.L.Rev. 1064 (1952). . See the following comments of Mr. Justice" }, { "docid": "22057166", "title": "", "text": "85 R.I. 259, 129 A.2d 545; Keough v. Duggan, 1938, 59 R.I. 496, 196 A. 398. South Carolina: Newman v. Brown, 1955, 228 S.C. 472, 90 S.E.2d 649, 55 A.L.R.2d 929. South Dakota: Ross v. Foss, 1958, 77 S. D. 358, 92 N.W.2d 147. Tennessee: Graham v. Smith, Tenn. App.1959, 330 S.W.2d 573. Texas: Green v. Rudsenske, Tex.Civ. App.1959, 320 S.W.2d 228; Gulf, C. & S. F. Ry. Co. v. Shamburger, Tex.Civ. App.1950, 231 S.W.2d 784. Utah: Pauly v. McCarthy, 1947, 109 Utah 431, 184 P.2d 123. Vermont: Jackson v. Rogers, 1957, 120 Vt. 138, 134 A.2d 620; Gray v. Janicki, 1953, 118 Vt. 49, 99 A.2d 707. Virginia: Danville Community Hospital, Inc. v. Thompson, 1947, 186 Va. 746, 43 S.E.2d 882, 173 A.L.R. 525. Washington: Kellerher v. Porter, 1948, 29 Wash.2d 650, 189 P.2d 223; Northern Pacific Ry. Co. v. Everett, 9 Cir., 1956, 232 F.2d 488. West Virginia: Flanagan v. Mott, W. Va.1960, 114 S.E.2d 331. Wisconsin: Makowski v. Ehlenbach, 1960, 11 Wis.2d 38, 103 N.W.2d 907; Sennott v. Seeber, 1959, 6 Wis.2d 590, 95 N.W.2d 269. Wyoming: Borzea v. Anselmi, 1952, 71 Wyo. 348, 258 P.2d 796; Northwest States Utilities Co. v. Ashton, 1937, 51 Wyo. 168, 65 P.2d 235. . See Miller v. Maryland Casualty Co., 2 Cir., 1930, 40 F.2d 463, 464-465; Moore’s Federal Practice, Vol. 6, p. 3825. . See Southern Pac. Co. v. Guthrie, 9 Cir., 1951, 186 F.2d 926. . Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 1951, 190 F.2d 825; Southern Pac. Co. v. Guthrie, supra; Richter and Forer, Federal Employers’ Liability Act, 1952, 12 F.R.D. 13, 67; cf., Bainbrich v. Hammond Iron Works, supra; Wetherbee v. Elgin, Joliet & Eastern Ry., 7 Cir., 1951, 191 F.2d 302, 310. . 28 U.S.C. Section 2106. It provides: “The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to" }, { "docid": "23446506", "title": "", "text": "where emotional distress, standing alone, was held not an element of damage. The rule of that case has no application to this, for there no injury to reputation was alleged or proved. . Barnes v. South Carolina Public Service Authority, 120 F.2d 439 (4th Cir. 1941); Aetna Ins. Co. v. Norris Bros., 109 F.2d 172 (4th Cir. 1940). . See the discussions by Judge Medina in Dagnello v. Long Island R. Co., 289 F.2d 797 (2d Cir. 1961), and by Professor Moore in 6 Moore, Federal Practice, par. 59.08 [6]. . See Affolder v. N. Y., C. & St. L. R. Co., 339 U.S. 96, 101, 70 S.Ct. 509, 94 L.Ed. 683 (1950); Hayes v. N. Y. Central R. Co., 311 F.2d 198, 201 (2d Cir. 1962); Taylor v. Canadian Nat’l Ry. Co., 301 F.2d 1, 3 (2d Cir.), cert. denied, 370 U.S. 938, 82 S.Ct. 1585, 8 L.Ed.2d 807 (1962). . See Bankers Life and Casualty Co. v. Kirtley, 307 F.2d 418, 425 (8th Cir. 1962) ($650,000 punitive damages award deemed “monstrous”). For cases where the court has held the damages not to be monstrous or grossly excessive, see, e.g., Travelers Ins. Co. v. Gulf Nat’l Bank, 307 F.2d 295 (5th Cir. 1962); Phoenix Indemnity Co. v. Givens, 263 F.2d 858 (5th Cir. 1959); Bucher v. Krause, 200 F.2d 576 (7th Cir. 1952); Trowbridge v. Abrasive Co. of Philadelphia, 190 F.2d 825 (3d Cir. 1951); Southern Pac. Co. v. Guthrie, 186 F.2d 926 (9th Cir. 1951). See also the discussion in 3 Barron & Holtzoff, Federal Practice and Procedure (Wright ed.), § 1302.1 and cases cited at n. 17.20. Attention should also be drawn to Whiteman v. Pitrie, 220 F.2d 914, 921 (5th Cir. 1955), where the court recognized “that a judgment refusing a new trial may not be reversed in this court merely because the verdict is excessive in fact.” The court nevertheless set the verdict aside, stating that the award was based only on sympathy for the plaintiff and that the evidence furnished “no sound basis” for the verdict. See also Complete Auto Transit, Inc. v. Floyd," }, { "docid": "22057170", "title": "", "text": "English trial judge had no power to grant a new trial, it is to be assumed that he could not grant a remittitur. . The English practice prior to the adoption of the Seventh Amendment and the light it throws on the problem at hand are also discussed in Dimick v. Schiedt, supra, 293 U.S. at pages 491-492, 55 S.Ct. at page 303; Moore’s Federal Practice, Vol. 6, pp. 3827-3828; Hinton, Power of Federal Appellate Court to Review Ruling on Motion for New Trial, 1 U.Chi.L.Rev. 111 (1933); Riddell, New Trial at the Common Law, 26 Yale L.J. 49 (1916); Blume, Review of Facts in Jury Cases — The Seventh Amendment, 20 J.Am.Jud.Soc’y 130 (1936); Note, Appealability of Rulings for New Trial in the Federal Courts, 98 U.Pa.L.Rev. 575 (1950) ; Comment, Federal Appellate Review of Excessive or Inadequate Damage Awards, 28 Fordham L.Rev. 500 (1959); Comment, Federal Review of Excessive Verdicts, 30 Texas L.Rev. 242 (1951) ; Comment, 32 Mich.L.Rev. 387 (1934); 65 Harv.L.Rev. 1064 (1952). . See the following comments of Mr. Justice Gray in Capital Traction Co. v. Hof, 1899, 174 U.S. 1, 13-14, 19 S.Ct. 580, 585, 43 L.Ed. 873: “ ‘Trial by jury,’ in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and empanelled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and * * * to set aside their verdict if, in his opinion, it is against the law or the evidence. This proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion.” . Blackstone’s Commentaries, Vol. 3, p. 388. . Delaney v. New" }, { "docid": "2466235", "title": "", "text": "was so excessive as to require a new trial. For we think that under the circumstances this issue should be returned to the trial judge for his consideration. Judge Noonan stated at the trial: “ * * * I would be inclined to reduce the verdict to $35,000 if I had the power and I am not sure that I have that.” Although he could not reduce the verdict, he could have conditioned his denial of motion for a new trial upon remittitur of the excess amount by plaintiff. Dimick v. Schiedt, 293 U.S. 474, 482, 55 S.Ct. 296, 79 L.Ed. 603. The matter of excessive damages is primarily within the discretion of the trial judge, see Kennair v. Mississippi Shipping Co., 2 Cir., 197 F.2d 605; Nagle v. Isbrandtsen Co., 2 Cir., 177 F.2d 163, though we may review his decision for abuse of discretion. See Bucher v. Krause, 7 Cir., 200 F.2d 576, certiorari denied Krause v. Bucher, 345 U.S. 997, 73 S.Ct. 1141, 97 L.Ed. 1404. Thus it appears from the record that Judge Noonan, through error as to the extent of his authority, failed to exercise his discretion to condition denial of a motion for a new trial upon remission of part of the verdict. While we do not decide how such discretion should be exercised, we find that its exercise is an important right, of which defendant may not be deprived. Felton v. Spiro, 6 Cir., 78 F. 576. See also Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 483, 53 S.Ct. 252, 77 L.Ed. 439. Remanded for exercise of discretion in accordance with this opinion." }, { "docid": "22449397", "title": "", "text": "this opinion is sufficient to show that there was ample evidence to establish the defendant’s liability, and that certainly to that extent there was no abuse of discretion in denying the motion for new trial. We shall consider the denial of the motion as based on the ground that the damages were excessive in connection with the next specification of error. Specification of Error V: “The amount of the award, is grossly excessive and the Court below erred in not granting a re-mittitur.” V. If the district court considered the verdict excessive, it had the power, on motion, either to order a new trial, or to grant the plaintiff an election either to remit a stated portion of the amount or submit to a new trial. Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 79 L.Ed. 603; 6 Moore’s Federal Practice, Para. 59.05(3), pp. 3737, et seq. A simple restatement of the position of this Court is as follows: In reviewing a motion for new trial based on the ground of the inadequacy or ex-cessiveness of the verdict, as well as one based on the ground that the verdict is against the weight of the evidence, the rule applies that “ * * * an abuse of discretion is an exception to the rule that the granting or refusing of a new trial is not assignable as error.” Commercial Credit Corporation v. Pepper, supra; Houston Coca-Cola Bottling Co. v. Kelley, 5 Cir., 131 F.2d 627, 628; Fort Worth & Denver Ry. Co. v. Roach, 5 Cir., 219 F.2d 351. What are the tests for such abuse of discretion? Expressions have been employed such as “monstrous”, Affolder v. New York, Chicago & St. L. R. Co., 339 U.S. 96, 101, 70 S.Ct. 509, 94 L.Ed. 683, and “so gross or inordinate in amount as to be contrary to right reason.” (Chief Judge Hutcheson concurring in Sunray Oil Corporation v. Allbritton, 5 Cir., 188 F.2d 751. Compare the interesting discussion by Judge Lindley for the Seventh Circuit in Bucher v. Krause, 200 F.2d 576, 587. When all is said and" }, { "docid": "22057153", "title": "", "text": "Galloway v. United States, 1943, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458. Thus we conclude that the Seventh Amendment is no bar, and this is in accord with the view expressed by Judge Learned Hand, writing for this Circuit in 1930, in Miller v. Maryland Casualty Co., 40 F.2d 463, 465. The Second Circuit As for the precedents, it will suffice to say that for many years we held there was no power to review the question at issue. E. g., Press Pub. Co. v. Gillette, 1915, 229 F. 108; Ford Motor Co. v. Hotel Woodward Co., 1921, 271 F. 625; Miller v. Maryland Casualty Co., 1930, 40 F.2d 463; Jacque v. Locke Insulator Corp., 1934, 70 F.2d 680; Searfoss v. Lehigh Valley R. Co., 1935, 76 F.2d 762; Powers v. Wilson, 1940, 110 F.2d 960; Nagle v. Isbrandtsen Co., 1949, 177 F.2d 163; Kennair v. Mississippi Shipping Co., 1952, 197 F.2d 605; Stevenson v. Hearst Consol. Publications, 1954, 214 F.2d 902; Maher v. Isthmian Steamship Co., 1958, 253 F.2d 414. The first indication of a change of view came in Comiskey v. Pennsylvania R. R., 1956, 228 F.2d 687, 688, followed by Dellaripa v. New York, N. H. & Hartford. R. R., 1958, 257 F.2d 738. It is strange that the rule of nonreviewability should have hung on so long, despite the practically unanimous protests of text writers and commentators. See Moore’s Federal Practice, Vol. 6, Para. 59.08 [6]; Hinton, Power of Federal Appellate Court to Review Ruling on Motion for New Trial, 1 U.Chi.L. Rev. 111 (1933); Blume, Review of Facts in Jury Cases — The Seventh Amendment, 20 J.Am.Jud. Soc’y 130 (1936); Note, Appealability of Rulings on Motions for New Trial in the Federal Courts, 98 U.Pa.L.Rev. 575 (1950); Comment, Federal Appellate Review of Excessive or Inadequate Damage Awards, 28 Fordham L.Rev. 500 (1959); Comment, Federal Review of Excessive Verdicts, 30 Texas L.Rev. 242 (1951); 65 Harv.L.Rev. 1064 (1952). The claim that such review was too difficult has been conclusively disproved by the fact that appellate courts throughout the nation perform this function daily and" }, { "docid": "14031883", "title": "", "text": "alleged to have been applied by Judge Dimock had been “closely adhered to by this circuit right down to and including the case of Poignant v. United States, 1955, 225 F.2d 595,” and the dictum of Judge Byers in Pierce v. Erie R. Co. et al., 2 Cir., 1959, 264 F.2d 136, at page 139; and that this rule had been overturned and repudiated as bad law by the Supreme Court in its recent decision in Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941, decided on May 16, 1960, just twelve days after the rendition of the verdict in this case. If these assertions were correct we might well have given serious consideration to appellant's contention that the trial judge had committed “fundamental error.” In such a case we clearly have power to decide on the whole trial record whether the likelihood of a miscarriage of justice is such as to warrant a review of the “error,” even in the absence of objection or exception at the trial. See Hormel v. Helvering, 1941, 312 U.S. 552, 557, 61 S.Ct. 719, 85 L.Ed. 1037; Troupe v. Chicago, Duluth & Georgian Bay Transit Co., 2 Cir., 1956, 234 F.2d 253; Thorp v. American Aviation and General Ins. Co., 3 Cir., 1954, 212 F.2d 821, 824-825; Massachusetts Bonding & Ins. Co. v. Ray Dilschneider, Inc., 8 Cir., 1953, 203 F.2d 556, 560; Smith v. Welch, 10 Cir., 1951, 189 F.2d 832, 836-837; Dowell, Inc. v. Jowers, 5 Cir., 1948, 166 F.2d 214, 2 A.L.R.2d 442; Shokuwan Shimabukuro v. Higeyoshi Nagayama, 1944, 78 U.S.App.D.C. 271, 140 F.2d 13; 5 Moore, Federal Practice, Para. 5104, at 2503-04. We find, however, that Judge Dimock’s instructions to the jury were wholly unexceptionable, that they are in strict conformity with the teaching of Mitchell and that appellant has misunderstood the course of decision in this Circuit concerning the doctrine of seaworthiness as applied to temporary conditions arising after the commencement of the voyage. We shall, accordingly, briefly comment on the point decided in Mitchell, on the effect of this decision on rulings" }, { "docid": "22576691", "title": "", "text": "Cir., 117 F.2d 596, wherein it was held that any large verdict’ will always impel a careful search of the record for prejudicial error. Such an approach we think is misleading, for the existence or non-existence of procedural error in the trial of a cause should seldom be decisive of the propriety of the size of the verdict. There are, however, many decisions of relatively recent date, with which we find ourselves in accord, which meet head on the problem at hand and conclude that a court of review may, with propriety, ascertain whether the trial court abused its discretion in failing to grant a new trial because of an excessive verdict. Cobb v. Lepisto, 9 Cir., 6 F.2d 128; Southern Pac. Co. v. Guthrie, 9 Cir., 180 F.2d 295, on rehearing, 9 Cir., 186 F.2d 926, certiorari denied 341 U.S. 904, 71 S.Ct. 614, 95 L.Ed. 1343; Covey Gas & Oil Co. v. Checketts, 9 Cir., 187 F.2d 561; Virginian Ry. Co. v. Armentrout, 4 Cir., 166 F.2d 400, 4 A.L.R. 2d 1064; see also, Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 190 F.2d 825, 830; Consumers Power Co. v. Nash, 6 Cir., 164 F.2d 657, 660; dissenting opinions of Judge Holmes ill Sunray Oil Corp. v. All-britton, 5 Cir., 187 F.2d 475, on rehearing 188 F.2d 751. These decisions, we believe, are representative of the correct view with respect to appellate authority to review the trial court’s discretion. If that discretion be abused, this court will not be powerless to act. The question still remains, however, as to whether the power should be exercised in the present case. In undertaking this determination we are, in many respects, on an uncharted course, for damages assessed by a jury are largely discretionary with it. Thus, to reverse the judgment we must conclude that the trial court has abused its discretion in failing to conclude that the jury abused its discretion in returning a verdict of the magnitude of the one here involved. Judge Learned Hand considered this problem in Miller v. Maryland Casualty Co., 2 Cir., 40 F.2d 463," } ]

[ { "docid": "14234705", "title": "", "text": "is no ‘applicable commitment period.’ ” Id. at 876, 877. The Sixth and Eleventh Circuits have disagreed and have held that § 1325(b) contains no such exception for debtors with no projected disposable income. See Baud, 634 F.3d at 351 (“[Tjhe temporal requirement of the applicable commitment period applies to debtors facing a confirmation objection even if they have zero or negative projected disposable income.”); Tennyson, 611 F.3d at 880 (“[Tjhe ‘applicable commitment period’ is a temporal term that prescribes the minimum [plan] duration.... The only exception to this minimum period, if unsecured claims are fully repaid, is provided in § 1325(b)(4)(B).”). We now agree with the other circuits’ interpretation. Our analysis begins with the statute’s text. Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir.), cert. denied, — U.S. -, 133 S.Ct. 256, 184 L.Ed.2d 137 (2012). Although § 1325(b) is somewhat ambiguous, see Baud, 634 F.3d at 351 (noting that “the plain-language arguments” for and against an exception to § 1325(b)’s temporal requirement “are nearly in equipoise”), that subsection is best read to impose its temporal requirement regardless of the debtor’s projected disposable income. Most significantly, the statute makes neither § 1325(b)(4)’s calculation of the applicable commitment period nor § 1325(b)(l)(B)’s requirement that a plan provide for payments over that period explicitly contingent on a particular level of projected disposable income. Thus, even though a debtor’s payments to unsecured creditors will, at least initially, amount to $0 if the ‘debtor has no projected disposable income, the statute requires the debtor to commit- to the plan for the duration of the applicable commitment period. Furthermore, “the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Gale v. First Franklin Loan Servs., 701 F.3d 1240, 1244 (9th Cir.2012) (internal quotation marks omitted). The structure of Chapter 13 confirms that § 1325(b)(1)(B) establishes a minimum plan duration even if the debtor has no projected disposable income. A debtor’s applicable commitment period is not, as the panel reasoned in Kagenveama, “exclusively linked to § 1325(b)(1)(B) and the ‘projected disposable" } ]

[ { "docid": "20498050", "title": "", "text": "is a question of law whose answer begins with an examination of the plain meaning of the statute. United States v. Gomez-Osorio, 957 F.2d 636, 639 (9th Cir.1992). Words in a statute take on their “ordinary, contemporary, common meaning,” unless the statute otherwise defines them. Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir.2012) (citation omitted). The court must read the words of a statute “in their context and with a view to their place in the overall statutory scheme.” FDA v. Brotun & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000); see also United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984) (“[W]e do not ... construe statutory phrases in isolation; we read statutes as a whole.”). If the statutory language is unambiguous, and the statutory scheme is coherent and consistent, that is the end of the court’s interpretative inquiry. Miranda, 684 F.3d 844, 849 (9th Cir.2012). The parties debate to what extent the court must defer to the BIA’s interpretation of § 1226(c) in Rojas. But it is settled that a court owes no deference to any agency’s statutory interpretation unless the statute fails to clearly express the intent of Congress. Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); INS v. Cardoza-Fonseca, 480 U.S. 421, 447-48, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (“The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.”). There are two potential ambiguities in § 1226(c). One is the meaning of the phrase “when the alien is released” in § 1226(c)(1). That phrase might mean something akin to “at the moment of release.” It might also mean “at any time after release.” The other potential ambiguity arises from the interrelationship of paragraphs (1) and (2) of § 1226(c). Paragraph (2), which is the sole authority for mandatory detention, applies only to “an alien described in paragraph (1).” If an alien “described in paragraph (1)” is merely" }, { "docid": "10761542", "title": "", "text": "“legal guardian” in section 101(14A)(B) do not include a guardian ad litem. But the majority rule after the enactment of the BAPCPA continues to be that fees awarded in a child custody case and owed by a former spouse to a guardian ad litem of a child of the debtor constitute a domestic support obligation within the meaning of section 101(14A). See, e.g., In re Kassicieh, 482 B.R. 190, 191 (6th Cir. BAP 2012); Levin v. Greco, 415 B.R. 663 (N.D.Ill.2009); In re Rubenstein, 2012 WL 837339, at *2-3 (Bankr.D.Conn.2012); In re Espinosa, 2012 WL 1951107, at *1-2 (Bankr.N.D.Ga.2012); O’Brine v. Gove (In re Gove), 2011 WL 111155 (Bankr.D.Mass.2011); In re Stevens, 436 B.R. 107, 109 (Bankr.W.D.Wis.2010); Kelly v. Bumes (In re Burnes), 405 B.R. 654 (Bankr.W.D.Mo.2009). c. Statutory Interpretation. “The starting point in statutory interpretation is the language of the statute itself.” Ardestani v. INS, 502 U.S. 129, 135, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991) (internal quotation marks and alterations omitted). If the “language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case,” and “the statutory scheme is coherent and consistent,” the inquiry is over. Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (internal quotation marks omitted). In determining whether a statute is plain or ambiguous, we consider “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. 843. Warshauer v. Solis, 577 F.3d 1330, 1335 (11th Cir.2009). The term “legal guardian” is not a defined term in the Bankruptcy Code, in Black’s Law Dictionary (8th Ed. 2004) or in Merriam Webster’s Collegiate Dictionary (10th Ed. 1995). The word “legal” means “of or relating to law ... established, required or permitted by law.” Black’s Law Dictionary 912 (8th Ed. 2004). The word “guardian” means “[o]ne who has the legal authority and duty to care for another’s person or property, esp. because of the other’s infancy, incapacity or disability.” Id. at 725. “A guardian may be" }, { "docid": "17372643", "title": "", "text": "of an exception to a trustee’s power to avoid a preference found in § 547(c)(9), which provides: The trustee may not avoid ... a transfer if, in a case filed by a debtor whose debts are not primarily consumer debts, the aggregate value of all property that constitutes or is affected by such transfer is less than $5,475. Western reads § 547(c)(9) to except from avoidance as a preference every transfer from a debtor to a creditor in nonconsumer cases to the extent of $5,475. The bankruptcy court disagreed with Western’s construction of this statute, and so do we. Interpretation of the Bankruptcy Code begins with an examination of its language. Ransom v. FIA Card Servs., N.A., — U.S. -, 131 S.Ct. 716, 723-24, 178 L.Ed.2d 603 (2011) (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)). If that language, interpreted according to its plain meaning, is unambiguous, no further interpretation of the Code by the court is needed. Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004); Bonner Mall P’ship v. U.S. Bancorp Mortg. Co. (In re Bonner Mall P’ship), 2 F.3d 899, 908 (9th Cir.1993). In other words, an interpretation of the Code’s plain language, if not absurd, is sufficient, and courts may not rewrite the statute or insert additional words. Lamie, 540 U.S. at 538, 124 S.Ct. 1023. Read plainly, the language of § 547(c)(9) provides a monetary threshold for determining which transfers are avoidable in nonconsumer bankruptcy cases. Put another way, as applied, § 547(c)(9) protects transfers of less than $5,475 in amount from recovery by a trustee, even though they may otherwise meet the statutory requirements for a preference. By the same token, the statute provides that transfers of $5,475 or more are entirely avoidable. When Congress intends to limit avoidance to only a portion of a particular transfer, it knows how to do so. Several § 547(c) avoidance exceptions include “to the extent” language limiting what portion of a particular transfer may be avoided. See § 547(c)(l)-(5), (c)(7)." }, { "docid": "17621659", "title": "", "text": "determine whether the meaning we have derived from the text of the statute is part of a coherent and consistent statutory scheme. See Schindler Elevator Corp., -U.S. at-, 131 S.Ct. at 1893 (2011); see also Gale v. First Franklin Loan Servs., 701 F.3d 1240, 1244 (9th Cir.2012) (holding that the court must consider the statutory text in context and with a view to the entire statutory scheme). Nothing in the context or scheme of § 362 requires us to interpret “property of the debtor” differently. The two articulated purposes of the automatic stay are broad. See Burkart v. Coleman (In re Tippett), 542 F.3d 684, 689-90 (9th Cir.2008). First, the stay gives the debtor respite from any creditor efforts to enforce rights against the debtor and its property. Id. And second, it also protects the creditors from each other, as it prevents the creditors from racing to be the first to claim the debtor’s limited assets. Id. In turn, these two purposes facilitate and promote the tandem bankruptcy goals of a fresh start for the debtor and equitable distribution for creditors. See id. In light of § 362’s purposes, the scope of the stay granted in § 362(a) is interpreted very broadly, and the exceptions set forth in § 362(b) are interpreted narrowly. See Snavely v. Miller (In re Miller), 397 F.3d 726, 730-31 (9th Cir.2005) (citing Stringer v. Huet (In re Stringer), 847 F.2d 549, 552 n. 4 (9th Cir.1988)). Thus, the context and statutory scheme in which Congress used the phrase “property of the debtor” in § 362(a)(5) supports our refusal to read into the text any limiting or qualifying language that Congress chose not to include. Relying on In re D'Annies, 15 B.R. at 831, the bankruptcy court held that, after abandonment of estate property, § 362(a)(5) only protects a debtor from foreclosure of that property if that debtor is an individual. We decline to follow In re D’Annies. In re D'Annies invoked certain policy concerns in an attempt to justify a narrow interpretation of § 362(a)(5), an interpretation that would exclude corporate and partnership debtors from" }, { "docid": "17543941", "title": "", "text": "(In re Reynolds), 479 B.R. 67, 71 (9th Cir. BAP 2012). The bankruptcy court’s decision that a claim is dischargeable also is subject to de novo review. See Miller v. United States, 363 F.3d 999, 1004 (9th Cir.2004). So is the bankruptcy court’s interpretation of the Bankruptcy Code. See Danielson v. Flores (In re Flores), 735 F.3d 855, 856 n. 4 (9th Cir.2013) (en banc). DISCUSSION This appeal hinges on a single question of law regarding the meaning and effect of the phrase “spouse, former spouse or child of the debtor” as applicable to both § 523(a)(5) and § 523(a)(15). Given the plain meaning of the language and the context in which it is used, the phrase appears to limit the scope of debt nondis-chargeable under both provisions. Generally speaking, § 523(a)(5) covers claims in the nature of alimony, maintenance, or support, while § 523(a)(15) covers other, non-support obligations arising from domestic relations proceedings. As to each provision, the phrase “spouse, former spouse or child of the debtor” on its face appears to specify to whom the debt must be owed for nondischargeability to apply. Prior to enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8, 119 Stat. 23 (“BAPCPA”), the above-referenced phrase appeared directly in § 523(a)(5), which at the time read in relevant part as follows: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement.... (Emphasis added.) BAPCPA restructured § 523(a)(5) by simply declaring nondischargeable a debt “for a domestic support obligation” and moving and refining the detail of what constitutes a domestic support obligation into a new definitional provision, § 101(14A), which specifies that: The term “domestic support obligation” means a" }, { "docid": "19148873", "title": "", "text": "261, 263-64, 49 S.Ct. 108, 109-10, 73 L.Ed. 318 (1929). As discussed above, § 101(14A)(A) limits the domestic support obligations nondis-chargeable under § 523(a)(5) of the Bankruptcy Code to obligations owed to or recoverable by specified parties — those whom the debtor is directly required to support and those who provide ongoing care to them. Child representatives are not among the parties specified by § 101(14A)(A), and so amounts payable to them are not nondischargeable domestic support obligations. State law cannot validly provide for a different result. See Hansel v. Hansel (In re Hansel), No. 92 C 1095, 1992 WL 280799, at *3 (N.D.Ill. Oct.2, 1992) (rejecting a state statute’s definition of “support” for purposes of § 523(a)(5)). Conclusion For the reasons stated above, Levin’s motion for default judgment will denied. Because it appears that Levin’s complaint fails to set out grounds on which relief can be granted, the court will consider dismissing the adversary proceeding after providing an opportunity to Levin to demonstrate that the complaint is viable. See Stewart Title Guar. Co. v. Cadle Co., 74 F.3d 835, 836-37 (7th Cir.1996) (prescribing the proper procedure for sua sponte dismissal on grounds of failure to state a claim). . This bankruptcy case is governed by the Bankruptcy Code as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), which applies to cases filed on or after October 17, 2005. For cases filed before that date, a pre-BAPC-PA version of § 525(a)(5) was applicable. It did not use the term \"domestic support obligation,” but did include language addressing the four elements of the domestic support obligation definition of the current law. Specifically, the pre-BAPCPA version of § 525(a)(5) excepted from discharge any debt \"[1] to a spouse, former spouse, or child of the debtor, [2] for alimony to, maintenance for, or support of such spouse or child, [3] in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, [4] but not to the" }, { "docid": "4583689", "title": "", "text": "Debtor (the “Adversary”) seeking a determination of nondischargeability of certain other debts arising under the Judgment, this Court ordered CER and Debtor to mediation of the issues in this main bankruptcy case as well as in the Adversary, [dkt item 36] These matters were not resolved through mediation. The hearing to consider confirmation of Debtor’s plan is now set for March 8, 2012. Legal Analysis Administrative priority status and non-dischargeable status of domestic support obligations in chapter 7 and chapter IS cases To determine whether the Claim is non-dischargeable and entitled to priority status, the Court must analyze §§ 101, 507(a), 523, 727, and 1328, and the changes to those sections made or impacted by the substantial amendments to the Bankruptcy Code enacted by Congress under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPC-PA”). BAPCPA introduced significant statutory changes regarding the status of debts and obligations arising from the marital relationship, and applied to cases commenced after October 17, 2005. These amendments included adding a definition of a DSO in § 101(14A) , granting a first priority administrative status to DSOs under § 507(a)(1) , and modifying § 523(a) to “significantly limit” a debtor’s ability to discharge debts related to a matrimonial action. In re Schenkein, 2010 WL 3219464, at *4 (Bankr.S.D.N.Y. Aug. 9, 2010). Section 523(a)(5) creates an exception from discharge for any debt “for a domestic support obligation,” and § 523(a)(15) creates an exception from discharge for any debt to a spouse, former spouse, or child of the debtor that is “incurred in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record” and which is in the nature of a DSO but does not fall within the definition of a DSO. Finally, § 1328(a)(2) provides that a chapter 13 discharge does not discharge (among other things) any debt under § 523(a)(5), which is a debt for a “domestic support obligation” as defined under § 101(14A). There is a tension between § 523(a) and § 1328(a) as to whether debts that" }, { "docid": "10761541", "title": "", "text": "in accordance with O.C.G.A. § 19-9-3(g), which makes O.C.G.A. § 19-6-15, entitled “Child support guidelines,” applicable. For these reasons, the award of $11,865.00 was in the nature of support for the child. b. Case Law Pre-and Post-BAPCPA. In bankruptcy cases filed prior to the effective date of the BAPCPA, section 528(a)(5) made nondischargeable any debt “to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child.” Prior to the effective date of the BAPCPA, almost all, if not all, courts that considered the question held that a debt for fees of a guardian ad litem for a child of a debtor was nondischargeable. See, e.g., In re Chang, 163 F.3d 1138 (9th Cir.1998); In re Miller, 55 F.3d 1487 (10th Cir.1995); Matter of Dvorak, 986 F.2d 940 (5th Cir.1993); accord, In re Carlucci, 2007 WL 7132275, at *2 (Bankr.N.D.Ga.2007) (Bonapfel, J); see also In re Kline, 65 F.3d 749 (8th Cir.1995); In re Spong, 661 F.2d 6 (2nd Cir.1981). Defendant contends that the words “legal guardian” in section 101(14A)(B) do not include a guardian ad litem. But the majority rule after the enactment of the BAPCPA continues to be that fees awarded in a child custody case and owed by a former spouse to a guardian ad litem of a child of the debtor constitute a domestic support obligation within the meaning of section 101(14A). See, e.g., In re Kassicieh, 482 B.R. 190, 191 (6th Cir. BAP 2012); Levin v. Greco, 415 B.R. 663 (N.D.Ill.2009); In re Rubenstein, 2012 WL 837339, at *2-3 (Bankr.D.Conn.2012); In re Espinosa, 2012 WL 1951107, at *1-2 (Bankr.N.D.Ga.2012); O’Brine v. Gove (In re Gove), 2011 WL 111155 (Bankr.D.Mass.2011); In re Stevens, 436 B.R. 107, 109 (Bankr.W.D.Wis.2010); Kelly v. Bumes (In re Burnes), 405 B.R. 654 (Bankr.W.D.Mo.2009). c. Statutory Interpretation. “The starting point in statutory interpretation is the language of the statute itself.” Ardestani v. INS, 502 U.S. 129, 135, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991) (internal quotation marks and alterations omitted). If the “language at issue has a plain and unambiguous meaning with" }, { "docid": "2190630", "title": "", "text": "qualify as a domestic support obligation because it does not meet the requirement of § 101(14A)(B) that the debt must be “in the nature of alimony, maintenance, or support (including assistance provided by a governmental unit) of such spouse, former spouse, or child of the debtor.” Ratliff argues § 101(14A) is designed to limit the application of a domestic support obligation “to situations where the government steps in and provides support for a spouse, former spouse, or child of a debtor.” (Appellee’s Br. 5.) Ratliff maintains that the Department did not provide food stamps because she is a spouse, former spouse, or because she has children. (Id.) Ratliff also asserts that the language of 11 U.S.C. § 507(a)(1)(A) does not allow priority status to the Department’s claim and that, with respect to 11 U.S.C. § 507(a)(1)(B), even if the Department’s claim is deemed a domestic support obligation, Congress limited priority status to those governmental claims where the government is acting on behalf of an obligated party and providing support to a spouse, former spouse, or child of the debtor. Ratliff maintains that the Department’s interpretation is overreaching and incorrect. Questions of dischargeability and the interpretation of the bankruptcy code are to be determined under the federal bankruptcy laws, not state law. In re Reines, 142 F.3d 970, 972 (7th Cir.1998); Matter of Seibert, 914 F.2d 102, 106 (7th Cir.1990) (citing In re Williams, 703 F.2d 1055, 1057 (8th Cir.1983); S.Rep. No. 989, 95th Cong., 2d Sess. 79, reprinted in 1978 U.S.C.C.A.N. 5787, 5865; H.R.Rep. No. 595, 95th Cong., 1st Sess. 364, reprinted in U.S.C.C.A.N. 5963, 6320). This appeal involves the construction of the term “domestic support obligation” and its application to the facts of this case. Statutory construction begins with the wording of the statute. Colon v. Option One Mortgage Corp., 319 F.3d 912, 916-17 (7th Cir.2003). If the wording of the statute is clear, that is the end of the matter. Id. For the overpayment debt to be considered a “domestic support obligation,” the debt must be: (1) owed to or recoverable by a governmental unit; (2) in the" }, { "docid": "20498049", "title": "", "text": "“pure issue of law” that their statutory interpretation dispute raises represents an agreement to leave Plaintiffs’ Due Process claim for another day. In any event, the parties have done so little to address that claim that the court will not address its merits. For the remainder of this order, the court will ignore Plaintiff’s Due Process claim and treat this case as if it raised only a challenge to the government’s interpretation of § 1226(c). This order will conclude with instructions to Plaintiffs to indicate whether they still wish to pursue their Due Process claim. The procedural route to relief thus cleared of obstacles, the court now turns to the issue at the heart of this case: does § 1226(c) permit the government to subject to mandatory detention aliens who it arrested months, years, or (in Mr. Carr-era’s case) more than a decade after their release from state custody? III. ANALYSIS A. Section 1226(c)(2) Unambiguously Conditions Mandatory Detention on DHS Custody That Commences Immediately Upon the End of Non-DHS Custody. The interpretation of a statute is a question of law whose answer begins with an examination of the plain meaning of the statute. United States v. Gomez-Osorio, 957 F.2d 636, 639 (9th Cir.1992). Words in a statute take on their “ordinary, contemporary, common meaning,” unless the statute otherwise defines them. Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir.2012) (citation omitted). The court must read the words of a statute “in their context and with a view to their place in the overall statutory scheme.” FDA v. Brotun & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000); see also United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984) (“[W]e do not ... construe statutory phrases in isolation; we read statutes as a whole.”). If the statutory language is unambiguous, and the statutory scheme is coherent and consistent, that is the end of the court’s interpretative inquiry. Miranda, 684 F.3d 844, 849 (9th Cir.2012). The parties debate to what extent the court must defer to the BIA’s interpretation of" }, { "docid": "19148857", "title": "", "text": "under Illinois law gave rise to a domestic support obligation as a matter of law and gave Levin the opportunity to brief the issue. Legal Analysis Although Greco has not responded to the adversary complaint, a default judgment against him is not automatic. Rather, the granting of a default judgment is discretionary, and the court may take into consideration, among other factors, the merits of the complaint. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir.1986); Pepsi-Co, Inc. v. California Security Cans, 238 F.Supp.2d 1172, 1174 (C.D.Cal.2002); In re Franklin, 210 B.R. 560, 562 (Bankr.N.D.Ill.1997) (“The granting of an uncontested motion is not an empty exercise but requires that the court find merit to the motion.”). The merits of Levin’s complaint depend on § 523(a)(5) of the Code, which excepts from discharge any debt for a “domestic support obligation.” “Domestic support obligation,” in turn, is defined in § 101(14A) of the Code: The term “domestic support obligation” means a debt ... that is— (A) owed to or recoverable by— (i) a spouse, former spouse, or child of the debtor or such child’s parent, legal guardian, or responsible relative; or (ii) a governmental unit; (B) in the nature of alimony, maintenance, or support (including assistance provided by a governmental unit) of such spouse, former spouse, or child of the debtor or such child’s parent, without regard to whether such debt is expressly so designated; (C) established or subject to establishment before, on, or after the date of the order for relief in a case under this title, by reason of applicable provisions of— (i) a separation agreement, divorce decree, or property settlement agreement; (ii) an order of a court of record; or (iii) a determination made in accordance with applicable nonbankruptcy law by a governmental unit; and (D)not assigned to a nongovernmental entity, unless that obligation is assigned voluntarily by the spouse, former spouse, child of the debtor, or such child’s parent, legal guardian, or responsible relative for the purpose of collecting the debt. This definition sets out four elements that must be satisfied for a domestic support obligation to arise:" }, { "docid": "4583699", "title": "", "text": "to sue or defend a matrimonial action and thus a necessary under the law.” Id. at 9. Therefore, the court held that “it would be exalting form over substance to fail to treat appellee’s agreement to pay his wife’s counsel fee” as nondischargeable. Id. at 11; see also In re Klein, 197 B.R. 760 (Bankr.E.D.N.Y.1996) (“It is well settled in this Circuit that obligations in the nature of alimony, maintenance and support may include attorney’s fees incurred by a former spouse in connection with a divorce proceeding, custody dispute, or obtaining and enforcement of alimony and support awards.”). Thus, the Second Circuit rejected the name of the payee as determinative, focusing instead on the substance of the award. The Ninth Circuit followed Spong in In re Chang, 163 F.3d 1138 (9th Cir.1998), as did the Eighth Circuit in Holliday v. Kline (In re Kline), 65 F.3d 749 (8th Cir.1995). Current statutory formulation of the named payee As noted above, the current definition of a DSO under § 101(14A) includes a debt “in the nature of alimony, maintenance, or support,” which is “owed to or recoverable by” a “spouse, former spouse, or child of the debtor.” The same language regarding the payee — “spouse, former spouse, or child of the debtor” — appeared in the pre-BAPCPA version of § 523(a)(5). It is a fundamental principal of statutory construction that the same words used in different sections of the same statute are to be given the same meaning and effect. United Sav. Assoc. v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988); Sorenson v. Sec. of Treasury, 475 U.S. 851, 860, 106 S.Ct. 1600, 89 L.Ed.2d 855 (1986); but see Dewsnup v. Timm, 502 U.S. 410, 415-17, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992). While Congress did substantially restructure portions of the Bankruptcy Code in the 2005 BAPCPA amendments related to domestic relations debts, it did not narrow the wording from prior § 523(a)(5) “for alimony to, maintenance for, or support” in establishing a definition of “domestic support obligation” in § 101(14A); in fact," }, { "docid": "10578775", "title": "", "text": "A court may also take judicial notice of a prior judicial opinion. McTeman v. City of York, 577 F.3d 521, 526 (3d Cir.2009); Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir.2006). II. Standard for Nondischargeability of Matrimonial Obligations Under 11 U.S.C. § 523(a)(5) and (a)(15) a. The General Standard The United States Supreme Court has held that the primary purpose of the Bankruptcy Code is to provide a “fresh start” to the “honest but unfortunate debtor.” Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). As a result, in a trial on the merits, the creditor bears the burden of proving that a debt is nondischargeable under § 523(a) under a preponderance of the evidence standard, and “exceptions to discharge are strictly construed against creditors and liberally construed in favor of debtors.” Ins. Co. of Am. v. Cohn (In re Cohn), 54 F.3d 1108, 1113 (3d Cir.1995); see also Grogan, 498 U.S. at 287-88, 111 S.Ct. 654. 1. Section 523(a)(5) Section 523(a)(5) of the Bankruptcy Code provides an exception from discharge for any debt for a “domestic support obligation.” 11 U.S.C. § 523(a)(5). “Domestic support obligation” is defined in § 101(14A) as a debt that is (A) owed to or recoverable by— (i) a spouse, former spouse, or child of the debtor or such child’s parent, legal guardian, or responsible relative; or (ii)a governmental unit; (B) in the nature of alimony, maintenance, or support (including assistance provided by a governmental unit) of such spouse, former spouse, or child of the debtor or such child’s parent, without regard to whether such debt is expressly so designated; (C) established or subject to establishment before, on, or after the date of the order for relief in a case under this title, by reason of applicable provisions of— (i) a separation agreement, divorce decree, or property settlement agreement; (ii) an order of a court of record; or (iii) a determination made in accordance with applicable nonbankruptcy law by a governmental unit; and (D) not assigned to a nongovernmental entity, unless that obligation is assigned voluntarily" }, { "docid": "17372642", "title": "", "text": "creditor’s claim will not be allowed if the creditor has received an avoidable transfer. § 502(d); see generally Comm. of Unsecured Creditors v. Commodity Credit Corp. (In re KF Dairies, Inc.), 143 B.R. 734, 735-37 (9th Cir. BAP 1992). Section 547 of the Code governs preferences. In particular, a trustee may avoid as a preference any prepetition transfer of a debtor’s interest in property that meets the requirements of § 547(b). For preference purposes, a “transfer” includes both “voluntary and involuntary” transfers of an interest in the debtor’s property via “the creation of a lien.” § 101(54)(A), (D). See Batlan v. Bledsoe (In re Bledsoe), 569 F.3d 1106, 1113 (9th Cir.2009) (explaining definition of “transfer” is extremely broad); Hopkins v. SunTrust Mortg., Inc. (In re Ellis), 441 B.R. 656, 662 (Bankr.D.Idaho 2010) (explaining that BAPCPA amended the definition of “transfer” to include “the creation of a lien”). Western does not dispute that, under these facts, its acquisition of the lien satisfied the requirements of § 547(b) and constituted a preference. Instead, Western claims the benefit of an exception to a trustee’s power to avoid a preference found in § 547(c)(9), which provides: The trustee may not avoid ... a transfer if, in a case filed by a debtor whose debts are not primarily consumer debts, the aggregate value of all property that constitutes or is affected by such transfer is less than $5,475. Western reads § 547(c)(9) to except from avoidance as a preference every transfer from a debtor to a creditor in nonconsumer cases to the extent of $5,475. The bankruptcy court disagreed with Western’s construction of this statute, and so do we. Interpretation of the Bankruptcy Code begins with an examination of its language. Ransom v. FIA Card Servs., N.A., — U.S. -, 131 S.Ct. 716, 723-24, 178 L.Ed.2d 603 (2011) (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)). If that language, interpreted according to its plain meaning, is unambiguous, no further interpretation of the Code by the court is needed. Lamie v. U.S. Trustee, 540 U.S." }, { "docid": "10761555", "title": "", "text": "if the claimant had been the attorney for the debtor’s spouse, the claimant would not be in the class of persons covered under section 101(14A). This conclusion was dictum based on a hypothetical. It is as unpersuasive as it was unnecessary. Decisions based on bankruptcy law prior to the effective date of the BAPCPA uniformly held that a debt for attorney’s fees assessed for the benefit of a former spouse or child of the debtor in litigation dealing with child support or child custody is nondischargeable if it is in the nature of support. See, e.g., In re Strickland, 90 F.3d 444, 447 (11th Cir.1996). Nothing in the legislative history of the BAPCPA gives any hint that Congress intended to make dischargeable an award of attorney’s fees even if the award is in the nature of support of a former spouse or child of the debtor. Case law under the BAPCPA has uniformly applied pre-BAPCPA law concerning support. See, e.g., In re Phegley, 443 B.R. 154, 157 (8th Cir. BAP 2011) (“The BAPCPA amendments that added § 101(14A) and altered §§ 523(a)(5) and (15) did not change the standard for whether an obligation is in the nature of support.”). In In re Marshall, 489 B.R. 630, 634 (Bankr.S.D.Ga.2013), the court opined: [T]he statutory changes have not invalidated prior case law. See In re Papi, 427 B.R. 457, 462, n. 5 (Bankr. N.D.Ill.2010) (“Although the Bankruptcy Abuse Prevention and Consumer Protection Act, which applies to all cases filed on or after October 17, 2005, added the term ‘DSO’ to the Code, that term was developed from the definition of a nondischargeable debt for alimony, maintenance, and support in former Section 523(a)(5). Accordingly, case law interpreting the former version of Section 523(a)(5) remains relevant and persuasive here.”) (citations omitted); In re Poole, 383 B.R. 308, 313 (Bankr.D.S.C.2007) (observing that the similarity of language in pre-BAPCPA § 523(a)(5) and post-BAPCPA § 101 (14A) makes case law applicable to pre-BAPCPA § 523(a)(5) helpful in interpreting § 101(14A)). Therefore, the Court concludes that pre-BAPCPA precedent remains relevant. 6. Claims under § 523(a)(6). Section 523(a)(6) makes" }, { "docid": "16140418", "title": "", "text": "and owed directly to a third party not listed among the entities identified in § 101(14A) (or former § 523(a)(5)) is excepted from discharge. These three lines are: (1) the “plain-meaning” approach, holding that the dis-chargeability of the debt turns on whether it is owed to a person/entity described in § 523(a)(5) (pre-BAPCPA) or payable to or recoverable by a person/entity described in § 101(14A) (post-BAPCPA); (2) the view that, if a debt is in the nature of support, it is nondis-chargeable even if payable directly to a third party and even if the debtor’s spouse, former spouse or parent of his/ her child would not be financially harmed if the debtor discharged the obligation; and (3) a more limited approach that requires some ongoing liability of the debtor’s spouse, former spouse, or parent of the debtor’s child on the support obligation owing to a third party (so that its non-payment might have a financial impact on those parties) before it may be excepted from discharge. Ibid, at 472. A discussion of the three lines of authority is stated in In Re Kassicieh, 425 B.R. 467, 472-481. This court is included within the group of courts which strictly adheres to the plain meaning of the Bankruptcy Code, and thus follows the directives of the United States Supreme Court, as stated in In Re Kassicieh, supra, footnote 3 at 472: The Supreme Court has directed lower courts to apply the plain meaning when interpreting the Bankruptcy Code. See, e.g., Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000) (“[W]hen the statute’s language is plain, the sole function of the courts — at least where the disposition required by the text is not absurd — is to enforce it according to its terms.” (internal quotation marks omitted)); Connecticut Natl Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (“[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that" }, { "docid": "10578779", "title": "", "text": "should examine the function served by the obligation at the time of the divorce or settlement. An obligation that serves to maintain daily necessities such as food, housing and transportation is indicative of a debt intended to be in the nature of support. Gianakas v. Gianakas (In re Gianakas), 917 F.2d 759, 762-63 (3d Cir.1990). 2. Section 523(a)(15) Section 523(a)(15) applies to non-support obligations arising out of a divorce or separation, excepting from discharge any debt to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit[.] 11 U.S.C. § 523(a)(15). This provision has been read to encompass a range of matrimonial debts, including obligations arising out of property settlement agreements and equitable distribution judgments. In re Clouse, 446 B.R. 690, 707 n. 58 (Bankr.E.D.Pa.2010) (Fehling, J.) (holding that nondischargeability claims for equitable distribution debts must be brought under § 523(a)(15), not (a)(5), as equitable distribution is not included in the definition of “domestic support obligation” under § 101(14A)); accord Lawrence v. Lawrence (In re Lawrence), 237 B.R. 61, 83, 86-87 (Bankr.D.N.J.1999) (Stripp, J.). b. Changes Brought About by BAPC-PA, as Interpreted in this District The current statutory language of § 101Q4A), § 523(a)(5) and § 523(a)(15) is the result of amendments enacted as part of the BAPCPA amendments. Courts have found that BAPCPA produced two significant changes in the law governing the nondischargeability of matrimonial debts. 1. Expanded Applicability of § 523(a) (15) First, BAPCPA eliminated two balancing tests that had formerly provided debtors with defenses to nondischargeability for non-support debts based on (1) whether the debtor would be able to pay the debt and (2) whether discharging the debt would result in a benefit to the debtor that would outweigh the detrimental consequences to the former spouse or child. Gilman v. Golio (In re" }, { "docid": "17543943", "title": "", "text": "debt that accrues before, on, or after the date of the order for relief in a case under this title, including interest that accrues on that debt as provided under applicable nonbankruptcy law notwithstanding any other provision of this title, that is— (A) owed to or recoverable by— (i) a spouse, former spouse, or child of the debtor or' such child’s parent, legal guardian, or responsible relative; or (ii) a governmental unit; (B) in the nature of alimony, maintenance, or support (including assistance provided by a governmental unit) of such spouse, former spouse, or child of the debtor or such child’s parent, without regard to whether such debt is expressly so designated; (C) established or subject to establishment before, on, or after the date of the order for relief in a case under this title, by reason of applicable provisions of— (i) a separation agreement, divorce decree, or property settlement agreement; (ii) an order of a court of record; or (iii) a determination made in accordance with applicable nonbankruptcy law by a governmental unit; and (D) not assigned to a nongovernmental entity, unless that obligation is assigned voluntarily by the spouse, former spouse, child of the debtor, or such child’s parent, legal guardian, or responsible relative for the purpose of collecting the debt.... (Emphasis added.) This restructuring enabled Congress to utilize a uniform and detailed definition of the term “domestic support obligation” in several different sections of the bankruptcy code. Regardless, both before and after BAPCPA, the phrase “spouse, former spouse or child of the debtor” was and is part and parcel of § 523(a)(5), either directly in the text of the statute or indireetly by application of § 101(14A)’s definition of the term “domestic support obligation.” BAPCPA also significantly altered § 523(a)(15). Before BAPCPA, a debt otherwise covered by § 523(a)(15) nonetheless was dischargeable if the debtor was financially unable to repay the debt or the benefit to the debtor associated with discharge outweighed the detriment therefrom to the spouse, former spouse or child of the debtor. See Ashton v. Dollaga (In re Dollaga), 260 B.R. 493, 495 (9th" }, { "docid": "17543940", "title": "", "text": "the bankruptcy court focused on the fact that there was no familial relationship between Patricia and Jeanette. According to the court, the purpose, intent, and plain meaning of § 523(a)(5) and § 523(a)(15) all required the specified type of familial relationship as a prerequisite to nondischargeability. Without the requisite familial relationship, the court reasoned, the provisions simply did not apply. On February 15, 2013, the bankruptcy court entered both an order granting summary judgment and a separate judgment in Patricia’s favor disposing of the adversary proceeding. Jeanette and Karton timely filed their notice of appeal on February 27, 2013. JURISDICTION The bankruptcy court had jurisdiction pursuant to 28 U.S.C. §§ 1334 and 157(b)(2)(I). We have jurisdiction under 28 U.S.C. § 158. ISSUE In the process of granting summary judgment, did the bankruptcy court incor rectly hold that § 523(a)(5) and § 523(a)(15) did not apply because the subject debt was not connected to a spouse, former spouse or child of the debtor? STANDARDS OF REVIEW We review summary judgment rulings de novo. Bendon v. Reynolds (In re Reynolds), 479 B.R. 67, 71 (9th Cir. BAP 2012). The bankruptcy court’s decision that a claim is dischargeable also is subject to de novo review. See Miller v. United States, 363 F.3d 999, 1004 (9th Cir.2004). So is the bankruptcy court’s interpretation of the Bankruptcy Code. See Danielson v. Flores (In re Flores), 735 F.3d 855, 856 n. 4 (9th Cir.2013) (en banc). DISCUSSION This appeal hinges on a single question of law regarding the meaning and effect of the phrase “spouse, former spouse or child of the debtor” as applicable to both § 523(a)(5) and § 523(a)(15). Given the plain meaning of the language and the context in which it is used, the phrase appears to limit the scope of debt nondis-chargeable under both provisions. Generally speaking, § 523(a)(5) covers claims in the nature of alimony, maintenance, or support, while § 523(a)(15) covers other, non-support obligations arising from domestic relations proceedings. As to each provision, the phrase “spouse, former spouse or child of the debtor” on its face appears to specify to" }, { "docid": "4789164", "title": "", "text": "has been assigned to the Federal Government or to a State or any political subdivision of such State).... The legislative history to § 523(a)(5) provides: Paragraph (5) excepts from discharge debts to a spouse, former spouse, or child of the debtor for alimony to, maintenance for, or support of, the spouse or child. This language ... will apply to make non-disehargeable only alimony, maintenance, or support owed directly to a spouse or dependent. H.R. No. 95-595, 95th Cong., 1st Sess. 364 (1978), citing Hearings, pt. 2, at 942 (emphasis added). The County argues that the identity of the payee/recipient of the obligation should not control whether the debt is dischargeable or not. The County premises its argument on its view that the underlying policy expressed by Congress in § 523(a)(5) is to except from discharge familial support obligations. However, § 523(a)(5) plainly states that it applies to debts owed “to a spouse, former spouse, or child.” The legislative history cited above supports the position that only debts owed directly to a family member are excepted from discharge under § 523(a)(5). Furthermore, in response to a split of decisional authority regarding whether such debts assigned by a debtor’s family member to a government entity were dischargeable, Congress amended § 523(a)(5) in 1984 to provide explicitly that such debts were nondischargeable. The 1984 amendment was not broad enough to encompass any debt owed a governmental entity for support of a “spouse, former spouse, or child;” it encompassed only those debts determined by a court of record to be owed to a spouse or child, including such debts that the creditor had assigned to a governmental entity. See Pub.L. 98-353 § 454(b)(2), 98 Stat. 375; see also, In re Visness, 57 F.3d 775, 780 (9th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 828, 133 L.Ed.2d 770 (1996). Congress amended § 523(a)(5) again in 1986 by Pub.L. 99-554 § 281, 100 Stat. 3116, to clarify further what types of court orders regarding support are nondischargeable, but the 1986 amendment offers no new help for the County’s position. B. Applicable case law We addressed" } ]

[ { "docid": "22671358", "title": "", "text": "entitlement to withholding of removal under the INA. IV. CONCLUSION Under our highly deferential standard of review, we hold the IJ’s decision denying asylum and withholding of removal is supported by substantial evidence; the evidence does not compel an opposite conclusion. PETITION DENIED. . The INS is now part of the Department of Homeland Security. For convenience, we refer to the Department as the INS. . Sepulveda does not raise any challenge in her brief to the denial of relief under the Convention Against Torture (CAT). When an appellant fails to offer argument on an issue, that issue is abandoned. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir.1998); see also Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir.1989) (stating that passing references to issues are insufficient to raise a claim for appeal, and such issues are deemed abandoned). .The National Liberation Army, or ELN, is one of Colombia’s two major guerilla groups. . The State Department’s 1999 Country Report on Human Rights Practices for Colombia described this kidnaping as the abduction of 170 people from La Maria church by the ELN. . Sepulveda testified that in Colombia such threats extend to family members. . After rendering his oral decision, the IJ spoke to Sepulveda on the record, \"I have no doubt that you subjectively fear returning to your country at this time. That said, your fears are not subjectively reasonable based on the evidence that I have in front of me.” Although the IJ said Sepulveda's fears were not subjectively reasonable, the context suggests what he meant was that her fears were not objectively reasonable. . To the extent the IJ based his decision on a finding that Sepulveda could viably relocate to an area where the ELN presence was nonexistent or minimal, the evidence does not support such a finding. The 1999 and 2000 Country Reports, on which the IJ ostensibly relied, make clear that guerillas exercise influence throughout Colombia, and that small and large municipalities are already overwhelmed by the huge populations of displaced persons, who are consequently without" } ]

[ { "docid": "22746299", "title": "", "text": "the basis of their adverse credibility findings, the IJ and BIA correctly determined that Guan also failed to meet her burden under the more stringent test for withholding of removal, and that she did not demonstrate that “it is more likely than not that he would be tortured if removed to the proposed country of removal.” 8 U.S.C. § 208.16(c)(2); see also Wang v. Ashcroft, 320 F.3d 130, 133 (2d Cir.2003). Conclusion In sum, we hold that (1) where the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we will review both the BIA’s and the IJ’s opinions, and rely on portions of the IJ’s decision not explicitly discussed by the BIA; and (2) in the circumstances presented, the adverse credibility findings of the BIA and IJ were based on substantial evidence inasmuch as they relied on inconsistencies between petitioner’s account of persecution in an airport interview and her subsequent testimony before the IJ. * * * * * We have reviewed Guan’s remaining arguments and find them to be without merit. Accordingly, we DENY Guan’s petition, as well as Guan’s pending motion for a stay of removal. . United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Apr. 18, 1988, S. Tresty Doc. No. 100-20, 1465 U.N.T.S. 85. . Petitioner alter natively stated that she wrote the letter on June 2, 1999 and on June 9, 1999. . Petitioner alternatively testified that she closed her store \"in the end of June” and on June 10, 2005—one day after police allegedly \"destroyed” the store in retaliation for petitioner's letter to the city government. . When asked in her airport interview, “Do you have any questions or is there anything else you would like to add?,” petitioner replied \"No.” . During her airport interview, Guan clearly stated that she understood what the INS officer had explained to her about the nature of the proceeding, and she later confirmed that her responses to the questions posed were" }, { "docid": "22626188", "title": "", "text": "Hong Yang at 522 (citing Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 133-34 (2d Cir.2003)). Upon our review of the record, we find no error in either the IJ’s or BIA’s analysis in this regard. Conclusion In sum, we hold that (1)where the BIA adopts the conclusions of the IJ’s and upholds its adverse credibility finding, but does so for reasons other than those cited in the IJ’s most recent decision, we will review the decision of the IJ as supplemented by the BIA; (2) the IJ’s adverse credibility finding was supported by substantial evidence because Ye’s written asylum application and subsequent testimony contained material inconsistencies that “reach[] to the heart of the claim” of persecution; (3) inconsistencies between Ye’s written asylum application and subsequent testimony were “self-evident,” and therefore the IJ and BIA were not required to give Ye an opportunity to respond before basing an adverse credibility determination on these inconsistencies; (4) the BIA did not engage in improper fact-finding because it upheld the IJ’s adverse credibility finding based on facts already in the record; (5) the BIA did not err in declining to make any administrative findings regarding the “corrected” abortion certificate which Ye submitted for the first time on appeal, nor did it abuse its discretion in finding the evidence insufficiently material to warrant a remand; and (6) the BIA did not err in denying Ye’s request for withholding of removal or relief under the CAT. :¡< íjí í¡í % iji We have reviewed Ye’s remaining arguments and find them to be without merit. Ye’s stay of removal, granted by order of this Court on August 15, 2005, is hereby Vacated, and his petition for review is Denied. . Immigration Judge Sandy Horn presided over Ye’s case in 1995 and again in 2003. . United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Apr. 18, 1988, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, G.A. Res. 39/46, 39th Sess., U.N. GAOR Supp. No. 51, at 197, U.N. Dec. A/39/51 (1984). .Initially, Ye presented his religious and family planning persecution claims" }, { "docid": "22343763", "title": "", "text": "filed a brief as Amicus Curiae for Mulanga urging the Court to invalidate the summary affirmance procedure used by the BIA in this case. Because we remand for other reasons, we do not address the arguments concerning the summary affirmance procedure. . The DRC became independent from Belgian rule in 1960. Mobutu Sese Seiko ruled the country from 1965 to 1997, when Laurent-Desire Kabila came to power. .In his closing statement, Mulanga’s counsel offered to introduce the birth certificates into evidence, see id. at 203, after the IJ expressed great skepticism as to whether petitioner had children. See id. at 189 (\"Ma’am, do you have these children? Are they a figment of your imagination? Do they really exist?”). It appears that, ultimately, the birth certificates were not included as part of the record. See id. at 210. . At oral argument, Mulanga's counsel told the Court that Mrs. Mulanga was paroled from detention due to a medical condition some time after the removal proceedings before the IJ. . Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. .See 8 C.F.R. § 208.13(a) (\"The burden of proof is on the applicant for asylum to establish that he or she is a refugee as defined in section 101(a)(42) of the Act.’’); 8 C.F.R. § 208.16(b) (\"The burden of proof is on the applicant for withholding of removal under section 241(b)(3) of the Act to establish that his or her life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion.”); 8 C.F.R. § 208.16(c)(2) (\"The burden of proof is on the applicant for withholding of removal under this paragraph to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.”). . We note that an applicant can establish eligibility for asylum or withholding of removal based on persecution on account of either a political opinion s/he actually holds" }, { "docid": "22223514", "title": "", "text": "that Ms. Fiadjoe’s testimony was not credible, and the BIA found that Ms. Fiadjoe failed to establish that the government of Ghana was either unwilling or unable to control her father’s sexual abuse. We conclude that these findings are not supported by reasonable, substantial and probative evidence on the record considered as a whole. We will grant the petition and remand the case for a new hearing and development of the record before a different IJ. I. Procedural Background On March 11, 2000, using a passport bearing the name of another person, petitioner, Lorraine Fiadjoe, entered the United States. She is a member of the Ewe tribe and a native and citizen of Ghana. She was detained as an arriving alien and interviewed. Upon her refusal to be sent back to Ghana, the immigration authorities transferred her to the York County [Pennsylvania] Prison. On March 30 Asylum Officer James L. Reaves conducted an Asylum Pre-Screen-ing Interview of Ms. Fiadjoe, after which he found that she had established a significant possibility of a claim for asylum based on her membership in a particular social group (unmarried women over 25 in Ghana). He also found that Ms. Fiadjoe had established a credible fear of persecution or torture. On the same day the Immigration and Naturalization Service (“INS”) charged Ms. Fiadjoe with removability under §§ 212(a)(6)(C)(i) and 212(a)(7)(A)(i)(I) of the INA, 8 U.S.C. §§ 1182(a)(6)(C)(i), (a)(7)(A)(i)(I) (2003) and issued a notice to appear. At a June 1, 2000 hearing before an IJ Ms. Fiadjoe conceded that she was removable under § 212(a)(7)(A)(i)(I) of the INA for being an intending immigrant not in possession of a valid visa or other entry document. Ms. Fiadjoe filed applications for asylum, withholding of removal, and protection under the Convention Against Torture, Article 3 of the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, Annex 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984) (“CAT”). The IJ, Donald Vincent Ferlise, held an evidentiary hearing on April 30, 2002, after which he denied Ms. Fiadjoe’s application for" }, { "docid": "22537477", "title": "", "text": "Process Clause, we hold that we possess jurisdiction to review under Section 106, but conclude that the record does not support her claim. Finally, we conclude that the IJ’s decision denying petitioner’s application for withholding of removal is supported by substantial evidence and it is clear that the same decision would be made were we to remand. . On April 27, 1999, approximately eleven months after her arrival in the United States, petitioner was detained for approximately 5-6 hours by INS officials and was ordered to appear at a removal hearing in August 1999. According to petitioner, while the hearing was pending, \"she was no longer able to submit an asylum application to an asylum office\" because 8 C.F.R. § 208.2(b) confers \"exclusive jurisdiction over asylum applications filed by an alien who has been served a ... Form 1-862, Notice to Appear” to the immigration court and that \"under the operating procedures adopted by the immigration courts, [she] was barred from mailing an asylum application to the immigration court before the date of hearing.” Pet'r’s Br. at 20-21 (internal quotation marks omitted). Before the IJ and the BIA, petitioner maintained that she had orally indicated her intent to apply for asylum when she was detained by INS officers, but she never claimed that she was barred — either by regulation or the agency’s operating procedures, see id. — from submitting an asylum application before her removal hearing. Because the latter argument was not raised, we cannot consider it, as petitioner has failed to exhaust her administrative remedies. See 8 U.S.C. § 1252(d)(1); Cervantes-Ascencio v. U.S. INS, 326 F.3d 83, 87 (2d Cir.2003) (recognizing that § 1252(d)(1)’s \"exhaustion requirements [require a petitioner] to raise issues to the BIA in order to preserve them for judicial review\"); see also 8 U.S.C. § 1252(b)(4)(A) (providing that “the court of appeals shall decide the petition [for review] only on the administrative record on which the order of removal is based\"). . United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988)," }, { "docid": "22881321", "title": "", "text": "not unreasonable for the IJ and the BIA to conclude that petitioner — having failed to establish the veracity of the claims on which she based her application for relief — had not demonstrated her eligibility for asylum, withholding of removal, or relief under the Convention Against Torture. III. Conclusion In sum, we hold that credible fear interviews, like airport interviews, merit careful examination to ensure their reliability. Where, as here, however, the record of a credible fear interview bears sufficient indicia of reliability, it may be relied on as a source of an alien’s statements. Moreover, where examination of the credible fear interview reveals inconsistencies that go to the heart of an alien’s claims, as it does in this case, an adverse credibility determination based on those inconsistencies can withstand substantial evidence review. For the reasons set forth above, the petition for review is DENIED. . Ming Zhang’s claims are based on her alleged resistance to family planning policies in China. Ja Yun Zhang’s application is based on the application filed by his mother. See 8 U.S.C. § 1158(b)(3)(A) (\"A spouse or child ... of an alien who is granted asylum under this subsection may, if not otherwise eligible for asylum under this section, be granted the same status as the alien if accompanying ... such alien.”). . An individual is interviewed several times when applying for asylum. For some types of interviews, we have previously held that the BIA and IJ may consider statements made at the interview. An airport interview occurs shortly after an arriving alien has been deemed inadmissible to the United States. See 8 C.F.R. § 235.3. Our Court has already determined that, under certain circumstances, the BIA and IJ may consider statements made during an airport interview. See Guan v. Gonzales, 432 F.3d 391, 396 (2d Cir.2005); Ramsameachire v. Ashcroft, 357 F.3d 169, 175 (2d Cir.2004). A credible fear interview occurs after an airport interview if, at the airport interview, \"an alien ... indicates an intention to apply for asylum, or expresses a fear of persecution or torture, or a fear of return to" }, { "docid": "22425574", "title": "", "text": "in El Salvador. . The government does not dispute that the BIA failed to mention the Country Report in its decision. The government, however, argues that \"the Board is not required to cite and refute explicitly every piece of evidence offered on appeal.” The one case cited by the government to support this proposition, Wang v. BIA, 437 F.3d 270 (2d Cir.2006), is inapposite. In Wang, the Second Circuit held that the BIA did not abuse its discretion when it denied petitioner's motion to reopen asylum proceedings without explicitly mentioning an immigration expert's affidavit. 437 F.3d at 275. But this case involves a CAT claim. The regulations implementing CAT explicitly require the IJ to consider \"all evidence relevant to the possibility of future torture.” 8 C.F.R. § 208.16(c)(3). Wang is also distinguishable because the IJ and BIA in this case failed to consider a country report, rather than an affidavit. Country reports are accorded special weight in removal proceedings. See, e.g., Kazlauskas v. INS, 46 F.3d 902, 906 (9th Cir.1995). Accordingly, the BIA erred in not considering the Country Report on El Salvador. . We note that the IJ did not err by failing to consider the expert witness testimony of Alfonso Gonzales. The IJ permitted Gonzales to testify and admitted his testimony into the record. The IJ listened to the testimony and stated reasons in the record why the testimony was insufficient to establish the probability of torture necessary to grant CAT relief. An expert is permitted to base his opinion on hearsay evidence and need not have personal knowledge of the facts underlying his opinion. See Gu v. Gonzales, 454 F.3d 1014, 1021 (9th Cir.2006) (\"[H]earsay [evidence] is admissible if it is probative and its admission is fundamentally fair ....”). See also 8 C.F.R. § 1240.7(a) (\"The immigration judge may receive in evidence any oral or written statement that is material and relevant to any issue in the case previously made by the respondent or any other person during an investigation, examination, hearing, or trial.”) (emphasis added). Nevertheless, the IJ was not required to adopt as true all" }, { "docid": "22246166", "title": "", "text": "a preponderance of the evidence that Diallo had been persecuted, had a well-founded fear of future persecution, was likely to be persecuted in the future, or was likely to be tortured. Id. at 10. In context, it is clear that the IJ did not deny Diallo’s claim “for want of sufficient corroboration,” Jin Shui Qiu, 329 F.3d at 153, but concluded instead that because Diallo’s testimony was incredible she had failed to prove her eligibility for relief. Diallo does not, nor could she seriously, contest that if her testimony was properly discredited, she is ineligible for relief. In light of our conclusion that the IJ’s adverse credibility determination was supported by substantial evidence, we conclude that Diallo was appropriately denied asylum, withholding of removal, and CAT relief. CONCLUSION For the foregoing reasons, the petition for review is denied. . United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. See also 8 C.F.R. § 208.16(c) (implementing regulations). . It seems that by \"removal hearings” the BIA intended to refer to Diallo’s asylum hearing before the IJ, at which Diallo actually offered explanations for the discrepancies, rather than to her removal hearing, at which she conceded removability. Diallo's removal hearing contained no substantive discussion of her asylum claim and predated the IJ's finding of inconsistencies in the record. . This conclusion is supported by Ramsameachire. There, addressing the more difficult question of the reliability of airport interviews, we did not suggest that a paraphrased record of an asylum applicant’s statements will always be unreliable. Rather, we identified three other factors that should also be considered in determining an interview’s reliability: whether the questions were \"designed to elicit the details of an asylum claim,” whether the applicant seemed \"reluctant to reveal information” to her interviewer, and whether \"the alien’s answers to the questions posed suggest that the alien did not understand English or the translations provided by the interpreter.” Ramsameachire, 357 F.3d at 180 (internal quotation marks omitted); but see Yun-Zui Guan, 432 F.3d at 396" }, { "docid": "22246165", "title": "", "text": "petitioner’s] failure to produce the identified corroboration were excused, what would remain would be (1) the IJ’s finding that [the petitioner’s] “inconsistent testimony ... seriously undermines the applicant’s truthfulness and credibility before the Court,” and (2) the BIA’s finding that “important discrepancies” in the evidence “are indicative of an overall lack of veracity on the part of the applicant.” Such adverse credibility findings, by themselves, constitute substantial evidence to support the conclusion that [the petitioner] failed to carry his burden of proof on his persecution claim. Zhou Yun Zhang, 386 F.3d at 78-79 (citations and emphasis omitted); cf. Cao He Lin, 428 F.3d at 404 (addressing corroboration in light of the IJ’s flawed adverse credibility determination). Here, the IJ found Diallo’s testimony to contain “far too many inconsistencies and contradictions” to be credited, and stated that as a result she did not “believe much of what [Diallo] told the Court.” Oral Decision at 8-9. Having disregarded Dial-lo’s testimony as not credible, the IJ then concluded that the remaining evidence did not suffice to establish by a preponderance of the evidence that Diallo had been persecuted, had a well-founded fear of future persecution, was likely to be persecuted in the future, or was likely to be tortured. Id. at 10. In context, it is clear that the IJ did not deny Diallo’s claim “for want of sufficient corroboration,” Jin Shui Qiu, 329 F.3d at 153, but concluded instead that because Diallo’s testimony was incredible she had failed to prove her eligibility for relief. Diallo does not, nor could she seriously, contest that if her testimony was properly discredited, she is ineligible for relief. In light of our conclusion that the IJ’s adverse credibility determination was supported by substantial evidence, we conclude that Diallo was appropriately denied asylum, withholding of removal, and CAT relief. CONCLUSION For the foregoing reasons, the petition for review is denied. . United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. See also 8 C.F.R. § 208.16(c) (implementing regulations). . It" }, { "docid": "22844764", "title": "", "text": "or bond under this section shall be separate and apart from, and shall form no part of, any deportation or removal hearing or proceedings.” 8 C.F.R. § 1003.19 (emphasis added). In response, the government cites 8 C.F.R. § 1240.7(a), pertaining to removal hearings, which states that the IJ “may receive in evidence any oral or written statement that is material and relevant to any issue in the case previously made by the respondent or any other person during any investigation, examination, hearing, or trial.” The government argues that this regulation renders the IJ’s bond hearing notes admissible. We hold that 8 C.F.R. § 1240.7(a) does not apply in this case. 1. 8 C.F.R. § 1240.7(a) Does Not Apply Here At first blush, 8 C.F.R. § 1003.19(d) and 8 C.F.R. § 1240.7(a) seem to be in conflict. We need not, however, resolve that conflict here or attempt to harmonize the regulations because § 1240.7(a) does not apply to Joseph’s case. Section 1240.7(a) allows the receipt in evidence of an “oral or written statement” made by the asylum seeker, or another person, during “any investigation, examination, hearing, or trial.” Here, the evidence was not of such a “statement”; rather, the evidence in question was the IJ’s own notes, not part of the record, taken by the IJ during Joseph’s unrecorded, uncounseled bond hearing. No transcript exists for Joseph’s bond hearing. No effort was made to introduce specific evidence of the precise content of Joseph’s oral statements made at his unrecorded bond hearing. Because 8 C.F.R. § 1240.7(a) does not apply, we need not reconcile this regulation with 8 C.F.R. § 1003.19(d) or determine which regulation, if any, would govern in the event of a conflict. Moreover, as we discuss below, § 1003.19(d) does not, as a rule, permit an IJ sitting in removal proceedings to rely on her notes from a bond hearing. 2. Bond and Removal Hearings are Distinct and Evidence from a Bond Hearing Should Not be Considered in a Removal Hearing The case law, although sparse, supports Joseph’s argument that § 1003.19(d) precludes the IJ from considering evidence from" }, { "docid": "22193994", "title": "", "text": "noted that “a table knife is still a deadly weapon.” At the conclusion of the proceeding, the IJ asked if either party had anything else to add. Lapaix chose not to offer any additional testimony, evidence or argument. The IJ took the matter under consideration and issued a written decision in February 2008. The IJ denied Lapaix’s application for asylum, withholding of removal and CAT relief. The IJ found Lapaix ineligible for asylum and withholding of removal because she had been convicted by a final judgment of a particularly serious crime. The IJ reasoned that, “due to the nature and the circumstances of the respondent’s offense and to the lengthy term of probation imposed and restitution ordered that the respondent was convicted of a particularly serious crime.” With regard to CAT relief, the IJ noted that Haiti’s political conditions had changed since Lapaix left. The IJ stated that, although Lapaix was tortured in the past, “[she] has not demonstrated that she will be singled out and tortured upon her removal to Haiti. There is nothing in the record to indicate that the current government in Haiti would have any inclination to harm [her].” Therefore, the IJ found that the evidence did not support Lapaix’s claim for CAT relief. Lapaix filed a timely notice of appeal with the BIA. The BIA dismissed Lapaix’s appeal, finding that her offense constituted a particularly serious crime given its violent nature against a person. The BIA held that there was no reason to remand because the IJ’s decision was supported by the record. Additionally, the BIA found that Lapaix did not dispute the IJ’s denial of CAT relief and as such, waived any appeal as to that finding. Lapaix now petitions this court for review of the BIA’s decision. Lapaix presents two issues on appeal. First, Lapaix claims that the IJ violated her due process rights by refusing to permit her to testify at her evidentiary hearing regarding the circumstances of the crime in question. Second, Lapaix asserts that the BIA erred in refusing to consider her CAT claim, which she alleges was sufficiently raised" }, { "docid": "22325420", "title": "", "text": "2001, when her sister was granted asylum and it appeared to Almuhtaseb that the violence in the West Bank heightened considerably, she filed her asylum application. Almuhtaseb states that she fears that returning to the West Bank would expose her to shootings; shellings; bombings; settlers’ attacks; lack of infrastructure, education, jobs, and medicine; and the lack of access to medical care during periodic curfews. When asked why Almuhtaseb might be a particular target of persecution by the Israelis, she and her sister responded that she would be targeted based on her own and her family’s involvement in die resistance to the occupation and because her family had “been persecuted and attacked by the Israelis.” Administrative Record (“A.R.”) at 124 (Hearing Transcript (“Hr’g Tr.”) at 53). B. Procedural History On September 27, 2001, the Immigration and Naturalization Service (“INS”) sent Almuhtaseb a Notice to Appear for remaining in the United States beyond the time permitted by her visa. In her hearing before the Immigration Judge (“IJ”), .Almuhtaseb conceded removability but denied Jordanian citizenship and requested asylum, or, in the alternative, withholding of removal, and protection under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”) art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. The IJ accepted the INS’s concession that Almuhtaseb was credible. A.R. at 62 (IJ Opinion (“Op.”) at 4). However, the IJ denied her application for asylum because she did not comply with the Immigration and Naturalization Act’s (“INA”) requirement that asylum applications be filed within one year of entering the United States. See 8 U.S.C. § 1158(a)(2)(B). He concluded that she did not show sufficient changed circumstances to justify the delay. He reasoned that any worsened conditions in the West Bank would not support her asylum claim because they are due to “general carnage” rather than the targeting of Almuhtaseb. A.R. at 64 (IJ Op. at 6). He also found that, in any event, Almuhtaseb was a Jordanian citizen who could escape the West Bank violence by going to Jordan. The BIA affirmed the IJ’s decision regarding asylum" }, { "docid": "22179397", "title": "", "text": "receipt. These items do not provide persuasive documentation of Huang’s story. Because the IJ’s well-supported demeanor findings are entitled to special deference, Singh-Kaur, 183 F.3d at 1151, and the IJ appropriately considered the record as a whole and “the totality of the circumstances,” 8 U.S.C. § 1158(b)(l)(B)(iii), we are not compelled to conclude that Huang was credible. We therefore defer to the IJ’s adverse credibility determination, and must give no weight to Huang’s testimony. The remaining evidence in the record does not compel us to overturn the IJ’s determination that Huang failed to carry her burden of proving eligibility for asylum. Because Huang failed to carry her burden for asylum, we also hold that the record does not compel the conclusion that she meets the more stringent standard for withholding of removal. Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Nor does the record compel the conclusion that Huang is eligible for protection under the Convention Against Torture. “[S]he has not demonstrated that, more likely than not, she will be tortured at the instigation of, or with the acquiescence of’ the Chinese government. Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir.2008). Accordingly, we deny her petition for review. PETITION DENIED. . Section 1158(b)(l)(B)(iii) states in relevant part: Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant's or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstance under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor. 8 U.S.C. § 1158(b)( 1 )(B)(iii)." }, { "docid": "22647387", "title": "", "text": "IIRIRA govern his petition for review. The IJ also denied Chen's application for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (\"CAT”), 8 C.F.R. § 208.16(c). On appeal, Chen does not raise any challenge to the denial of relief under the CAT. Consequently, he has abandoned that claim. See Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir.2005). . Chen offered his Notice to Appear, his asylum application, the 2004 U.S. Department of State Country Report for China, notes from his credible fear interview, and identification documents as exhibits. . Because Chen’s application for asylum and withholding of removal was filed on July 12, 2005, the amendment effected by the REAL ID Act of 2005 applies in this case. . In his brief, Chen argues the merits of his claims for asylum and withholding of removal. The IJ, however, did not reach the merits of Chen's application, instead limiting his discussion to Chen’s credibility. As a result, we are confined to reviewing the IJ's adverse credibility determination. See Gonzales v. Thomas,-U.S.-, 126 S.Ct. 1613, 1615, 164 L.Ed.2d 358 (2006) (holding federal courts are not entitled to pass judgment on issues the agency did not address)." }, { "docid": "22312551", "title": "", "text": "she informed the IJ that she would be seeking asylum under § 208(a) of the INA, 8 U.S.C. § 1158(a), withholding of removal under § 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), and withholding of removal under the Convention Against Torture, as implemented in 8 C.F.R. § 208.16(c). On June 20, 2001, after a hearing on the merits, the IJ issued an oral opinion denying Ms. Balogun’s requested relief. Beginning with the asylum claim, the IJ explained that “[t]he central issue in this case ... I think is not the background information but rather the credibility of this particular applicant.” A.R. 43. The IJ principally relied upon three factors that, in his opinion, affected adversely Ms. Balogun’s credibility. First was the timing of the claim. The IJ explained that, on her previous trips, Ms. Balogun had not sought asylum or otherwise expressed a fear of returning to Nigeria. Ms. Balogun claimed that she told her cousins in Ohio of her fear, the IJ noted, but she produced no evidence to corroborate that claim nor did she explain why such evidence would be difficult to obtain. The IJ further relied on the fact that, when asked by immigration officials at the airport whether she feared returning to Nigeria, Ms. Balogun responded: “I don’t know. Maybe.” Id. at 44. The IJ did not credit her claim that this statement was made out of nervousness. The second reason that caused the IJ to doubt Ms. Balogun’s fear was credible was Ms. Balogun’s family situation. Specifically, the IJ noted that Ms. Balogun did not know if her mother or sister had undergone FGM. Lastly, the IJ doubted Ms. Balogun’s credibility because of the misrepresentations she made during her airport interview. The IJ recognized that these misrepresentations did not involve “a material aspect of the respondent’s claim,” but he found they did show a “propensity to dissemble and to distort the truth when the need arises. It is I think relevant in a case where the respondent is essentially asking the Court to accept her account at face value.” Id. at 46. For these" }, { "docid": "22429311", "title": "", "text": "children born in the United States would be treated the same as Chinese nationals with children born in China. Pet’r Br. at 22-23. On January 25, 2007, the BIA dismissed Huang’s appeal and denied Huang’s motions to remand. Huang timely filed a petition for review of the BIA’s decision with this court. On March 11, 2008, Huang filed with us a motion to remand her case to the BIA and to supplement the record, and on March 18, 2008, Huang filed a motion with the BIA to reopen and remand her case to the IJ. B. The Hearing Before the Immigration Judge At the start of the May 2005 hearing, the IJ observed that Huang’s application for asylum and withholding of removal under the INA and the CAT lacked information and documentation in several crucial areas. In particular, the IJ noted that, although the birth of a child in November 2004 was a predicate for her changed-circumstances claim, Huang had failed to file a birth certificate for the child, nor was the child present at the hearing. Joint Appendix (“J.A.”). at 401 (Hr’g Tr. at 26); see also J.A. at 319 (Oral Decision at 39). After discussion of Huang’s application, the government presented evidence that Huang’s marriage to Higgins was fraudulent. Ledda, the adjudications officer who interviewed Huang and Higgins in November 2000, was the government’s first witness. Ledda testified about his recollections of that interview, during which he became suspicious about the nature of Huang and Higgins’s marriage because “they submitted minimal evidence in support of their petition [to remove the conditions on her residence] and there was no[t] what I consider real convincing evidence to place her in Michigan or to establish she had a life in Michigan.” J.A. at 426 (Led-da, Hr’g Tr. at 51). Huang had described a trip to New York to visit her sister, and when Ledda asked for the address of Huang’s sister in New York, Higgins produced what appeared to be a business card and began reading information from it. Ledda asked to see the card and found that the card contained" }, { "docid": "22844763", "title": "", "text": "we review both the IJ and the BIA’s decision. Hosseini, 471 F.3d at 957. Credibility determinations are reviewed under the substantial evidence standard. Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir.2009). Under the substantial evidence standard, credibility findings are upheld unless the evidence compels a contrary result. Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007). III. DISCUSSION A. The IJ Erred by Considering Her Bond Hearing Notes During the Removal Hearing We must decide whether the IJ erred in considering her unrecorded notes from Joseph’s bond hearing during his later removal hearing. The BIA found that the IJ had not erred in “noting the inconsistencies between the claim presented by [Joseph] during his bond hearing, and that presented subsequently during his merits hearing.” Joseph argues that the IJ’s consideration of her notes from Joseph’s unrecorded bond hearing was an error. In support of his claim, Joseph cites 8 C.F.R. § 1003.19(d). This regulation, which pertains to bond hearings, states that “[consideration by the[IJ] of an application or request of a respondent regarding custody or bond under this section shall be separate and apart from, and shall form no part of, any deportation or removal hearing or proceedings.” 8 C.F.R. § 1003.19 (emphasis added). In response, the government cites 8 C.F.R. § 1240.7(a), pertaining to removal hearings, which states that the IJ “may receive in evidence any oral or written statement that is material and relevant to any issue in the case previously made by the respondent or any other person during any investigation, examination, hearing, or trial.” The government argues that this regulation renders the IJ’s bond hearing notes admissible. We hold that 8 C.F.R. § 1240.7(a) does not apply in this case. 1. 8 C.F.R. § 1240.7(a) Does Not Apply Here At first blush, 8 C.F.R. § 1003.19(d) and 8 C.F.R. § 1240.7(a) seem to be in conflict. We need not, however, resolve that conflict here or attempt to harmonize the regulations because § 1240.7(a) does not apply to Joseph’s case. Section 1240.7(a) allows the receipt in evidence of an “oral or written statement” made by the" }, { "docid": "22647386", "title": "", "text": "record would compel a reasonable fact finder to reverse the IJ’s finding. First, to the extent Chen argues the inconsistencies and discrepancies are “trivial” and “irrelevant to the dispositive issues,” he ignores the amendment to 8 U.S.C. § 1158(b)(l)(B)(iii), applicable in this case, which provides that in considering the totality of the circumstances, the “trier of fact may base a credibility determination on ... any inaccuracies or falsehoods in [the applicant’s] statements, without regard to ivhether an inconsistency, inaccwracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor” (emphasis added). Second, while Chen’s explanations of the implausible aspects of his claim are tenable, we cannot say, especially given the relative lack of corroborating evidence, that these explanations would compel a reasonable fact finder to reverse the IJ’s credibility determination. On this record, therefore, substantial evidence supports the IJ’s conclusion that Chen was not credible. Accordingly, we deny Chen’s petition for review. PETITION DENIED. . Because Chen's removal and asylum proceedings commenced after April 1, 1997, the permanent provisions of IIRIRA govern his petition for review. The IJ also denied Chen's application for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (\"CAT”), 8 C.F.R. § 208.16(c). On appeal, Chen does not raise any challenge to the denial of relief under the CAT. Consequently, he has abandoned that claim. See Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir.2005). . Chen offered his Notice to Appear, his asylum application, the 2004 U.S. Department of State Country Report for China, notes from his credible fear interview, and identification documents as exhibits. . Because Chen’s application for asylum and withholding of removal was filed on July 12, 2005, the amendment effected by the REAL ID Act of 2005 applies in this case. . In his brief, Chen argues the merits of his claims for asylum and withholding of removal. The IJ, however, did not reach the merits of Chen's application, instead limiting his discussion to Chen’s credibility. As a result, we are confined to reviewing" }, { "docid": "22746300", "title": "", "text": "* * * * We have reviewed Guan’s remaining arguments and find them to be without merit. Accordingly, we DENY Guan’s petition, as well as Guan’s pending motion for a stay of removal. . United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Apr. 18, 1988, S. Tresty Doc. No. 100-20, 1465 U.N.T.S. 85. . Petitioner alter natively stated that she wrote the letter on June 2, 1999 and on June 9, 1999. . Petitioner alternatively testified that she closed her store \"in the end of June” and on June 10, 2005—one day after police allegedly \"destroyed” the store in retaliation for petitioner's letter to the city government. . When asked in her airport interview, “Do you have any questions or is there anything else you would like to add?,” petitioner replied \"No.” . During her airport interview, Guan clearly stated that she understood what the INS officer had explained to her about the nature of the proceeding, and she later confirmed that her responses to the questions posed were \"a full, true and correct record of [her] interrogation” by the INS officer. . Even had Guan suggested that she felt coerced in the course of her airport interview, we noted in Ramsameachire that a petitioner’s \"attempts to reconcile the differences between his airport statements and his later testimony by asserting that he was nervous about speaking to INS officials at the airport” do not preclude the BIA from relying on such statements when making an adverse credibility finding, provided that there is also evidence that the alien \"understood the purpose of the interview.” Ramsameachire, 357 F.3d at 181-82. Thus, while the IJ and BIA should not overlook complaints of coercion altogether, see Latifi v. Gonzales, 430 F.3d 103, 2005 WL 3074137 (2d Cir. Nov. 17, 2005), 2005 U.S.App. LEXIS 24669, at *3, an alien's mere recitation that he was nervous or felt pressured during an airport interview will not automatically prevent the IJ or BIA from relying an statements in such interviews when making adverse credibility determinations. . Although Guan suggested, in her hearing" }, { "docid": "22626189", "title": "", "text": "the record; (5) the BIA did not err in declining to make any administrative findings regarding the “corrected” abortion certificate which Ye submitted for the first time on appeal, nor did it abuse its discretion in finding the evidence insufficiently material to warrant a remand; and (6) the BIA did not err in denying Ye’s request for withholding of removal or relief under the CAT. :¡< íjí í¡í % iji We have reviewed Ye’s remaining arguments and find them to be without merit. Ye’s stay of removal, granted by order of this Court on August 15, 2005, is hereby Vacated, and his petition for review is Denied. . Immigration Judge Sandy Horn presided over Ye’s case in 1995 and again in 2003. . United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Apr. 18, 1988, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, G.A. Res. 39/46, 39th Sess., U.N. GAOR Supp. No. 51, at 197, U.N. Dec. A/39/51 (1984). .Initially, Ye presented his religious and family planning persecution claims as intertwined, and the IJ identified several major inconsistencies in his testimony that were fatal to the claim as a whole. . The IJ held that Ye's religious persecution claim was foreclosed because he already had a \"full and fair opportunity” to litigate it before the IJ and BIA in 1995. The BIA later affirmed this finding. Because Ye does not petition for review of the IJ's denial of his religious persecution claim, we provide no further analysis of the IJ's holding in this regard. See Pet'r's Br. at 21 n. 1, 23 n. 2. . The BIA also declined to consider the \"corrected” abortion certificate that Ye attempted to submit for the first time on appeal, noting that the function of the BIA is \"to review, not create, a record.” . Because we conclude that the BIA’s adverse credibility determination was supported by its analysis of inconsistencies between Ye’s written application and subsequent testimony concerning the nature of his punishment for disobeying Chinese family planning officials, we need not discuss additional inconsistencies between Ye’s" } ]

[ { "docid": "15061404", "title": "", "text": "375, 393-94, 90 S.Ct. 1772, 1783-84, 26 L.Ed.2d 339, 351-53 (1970). Section 1 of DOHSA provides: Whenever the death of a person shall be caused by a wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any state, ... the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if the death had not ensued. 46 U.S.C. § 761. After 1920, DOHSA supplied a uniform remedy for deaths occurring over a marine league from shore; within territorial waters, after some initial confusion, state statutes continued to hold sway. The evolution of maritime wrongful death remedies continued in 1970 with Moragne v. States Marine Lines, in which the Supreme Court overruled THE HARRISBURG and established a remedy for wrongful death grounded in the general maritime law of the United States. Six years later, this circuit held in In re S/S HELENA, 529 F.2d 744, 753 (5th Cir.1976), that after Moragne there was no longer any reason for admiralty courts to apply state wrongful death acts in territorial waters. A further critical development occurred in 1978 with Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978), in which the Supreme Court held that damages recoverable under DOHSA may not be supplemented by the Moragne death remedy. Generally, in post-Higginbotham actions by survivors of non-seamen, this circuit was left with the Moragne remedy supreme in territorial waters, DOHSA supreme on the high seas, and state statutes, it was strongly hinted, out of the picture altogether. The problem we have before us now arises because DOHSA permits recovery of only pecuniary damages — lost wages, loss of services, and the like. Many state wrongful death acts, including Article 2315 of the Louisiana Civil Code, allow recovery for non-pecuniary losses such as loss of love and affection. In an effort to recover these" } ]

[ { "docid": "11280407", "title": "", "text": "deaths occurring, as here, in territorial waters and limits recovery to pecuniary damages, 46 U.S.C. § 762 (1982). The Jones Act, 46 U.S.C. § 688 (1982), is not available, because parents can recover only when the seaman is not survived by a spouse or children, 45 U.S.C. § 51 (1982). Finally, the Louisiana wrongful death statute, La.Civ.Code Ann. art. 2315 (West Supp.1985), is supplanted in maritime wrongful deaths by the general maritime cause of action for wrongful death created in Moragne. Matter of S/S Helena, 529 F.2d 744, 753 (5th Cir.1976). Because the parents’ remedy is exclusively under Moragne, we begin with a discussion of that case. In The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1866), the Supreme Court held that general maritime law did not provide a cause of action for wrongful death. As a result, there was no remedy for death on the high seas caused by the breach of a maritime duty. If the death occurred in territorial waters, federal law allowed the survivors to recover under the adjacent state’s wrongful death statute. Moragne, 398 U.S. at 393, 90 S.Ct. at 1784, 26 L.Ed.2d at 352. In an effort to provide seamen with a greater range of remedies, Congress in 1920 enacted DOHSA, ch. 111, §§ 1-8, 41 Stat. 537 (codified as amended at 46 U.S.C. §§ 761-768 (1982)), and the Jones Act, ch. 250, § 33, 41 Stat. 1007 (codified as amended at 46 U.S.C. § 688 (1982)). DOHSA, 46 U.S.C. § 761 (1982), creates a maritime cause of action for wrongful death on the high seas, and the Jones Act, 46 U.S.C. § 688 (1982), provides a remedy at law against seamen’s employers for seamen injured or killed through the negligence of the employer. In 1964, the Supreme Court held that survivors of seamen killed in territorial waters could sue the deceased seamen’s employers only under the Jones Act, to the exclusion of state wrongful death statutes and claims based on unseaworthiness. Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964). By 1970, under" }, { "docid": "2194087", "title": "", "text": "two rulings of the district court with respect to her right to recover under state and general maritime law claims. First, Daniel assigns as error the district court’s failure to apply the Louisiana wrongful death statute, La.Civ.Code art. 2315 (1986), which allows recovery of nonpecuniary losses. The district court held that the Death on the High Seas Act, (hereinafter “DOHSA”), 46 U.S.C. § 761, et seq., which allows recovery of pecuniary losses only, provided Daniel with her sole claim for wrongful death. Daniel contends that DOHSA was not intended as the exclusive remedy for deaths at sea but that state law remedies should apply to supplement those remedies available under DOHSA. Specifically, Daniel relies on this court’s recent opinion in Tallentire v. Offshore Logistics, Inc., 754 F.2d 1274 (5th Cir.1985) which held that DOHSA does not provide the exclusive remedy for death on the high seas. However, this court’s opinion in Tal-lentire has been reversed sub nom. Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986) directly holding that DOHSA does provide the exclusive remedy for wrongful death occurring on the high seas. The Supreme Court analyzed the legislative history of § 7 of DOHSA, 46 U.S.C. § 767, which reads: The provisions of any State Statute giving or regulating rights of action or remedies for death shall not be affected by this chapter. Nor shall this chapter apply to the Great Lakes or to any waters within the territorial limits of any State, or to any navigable waters in the Panama Canal Zone. The plaintiffs in Tallentire based their argument for the preservation of state wrongful death actions on this section of DOHSA. The Supreme Court found that Congress’ intent with respect to this section was merely to preserve the concurrent jurisdiction of state and federal courts to entertain wrongful death actions arising from accidents on territorial waters. Offshore Logistics, 106 S.Ct. at 2495. The Court discussed the goal of Congress to establish uniformity in maritime law and found: In sum, we believe that our reading of § 7, while not free from" }, { "docid": "16790768", "title": "", "text": "La.Civ.Code art. 2315 (1986), which allows recovery of nonpecuniary losses. The district court held that the Death on the High Seas Act, (hereinafter “DOHSA”), 46 U.S.C. § 761, et seq., which allows recovery of pecuniary losses only, provided Daniel with her sole claim for wrongful death. Daniel contends that DOHSA was not intended as the exclusive remedy for deaths at sea but that state law remedies should apply to supplement those remedies available under DOHSA. Specifically, Daniel relies on this court’s recent opinion in Tallentire v. Offshore Logistics, Inc., 754 F.2d 1274 (5th Cir.1985) which held that DOHSA does not provide the exclusive remedy for death on the high seas. However, this court’s opinion in Tallentire has been reversed sub nom. Offshore Logistics, Inc. v. Tallentire, — U.S. —, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986) directly holding that DOHSA does provide the exclusive remedy for wrongful death occurring on the high seas. The Supreme Court analyzed the legislative history of § 7 of DOHSA, 46 U.S.C. § 767, which reads: The provisions of any State Statute giving or regulating rights of action or remedies for death shall not be affected by this chapter. Nor shall this chapter apply to the Great Lakes or to any waters within the territorial limits of any State, or to any navigable waters in the Panama Canal Zone. The plaintiffs in Tallentire based their argument for the preservation of state wrongful death actions on this section of DOHSA. The Supreme Court found that Congress’ intent with respect to this section was merely to preserve the concurrent jurisdiction of state and federal courts to entertain wrongful death actions arising from accidents on territorial waters. Offshore Logistics, 106 S.Ct. at 2495. The Court discussed the goal of Congress to establish uniformity in maritime law and found: In sum, we believe that our reading of § 7, while not free from doubt, gives the proper meaning to the language of that section is supported by its legislative history, and is consistent with the law governing at the time of its passage. It is also in accord with" }, { "docid": "11280421", "title": "", "text": "then District Court Judge Rubin held that parents not dependent on their son could recover for loss of his society even though he was survived by a child. Hamilton, 395 F.Supp. at 984, was properly based in large part on uniformity and special solicitude, the twin aims of admiralty. However, three years after Hamilton the Supreme Court decided in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625, 98 S.Ct. 2010, 2015, 56 L.Ed.2d 581 (1978), that DOHSA provided the sole wrongful death cause of action for deaths occurring on the high seas to the exclusion of actions under Moragne. As discussed infra, any uniformity, and to a large extent the special solicitude, created by the holding in Hamilton was upset. . State wrongful death actions are considered only for guidance in shaping the general maritime cause of action for wrongful death under Moragne. This court held in Matter of S/S Helena, 529 F.2d 744, 753 (5th Cir.1976), that the general maritime action for wrongful death preempted state wrongful death statutes. Furthermore, in Moragne, 398 U.S. at 396-03, 90 S.Ct. at 1785-89, 26 L.Ed.2d at 354-58, the Court held that DOHSA, 46 U.S.C. § 767 (1982) (\"provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this chapter\"), did not prevent the federal courts, exercising maritime jurisdiction, from creating a new cause of ac tion for deaths occurring in territorial waters independent from state wrongful death statutes. Accordingly, this court is not required to follow the Louisiana wrongful death statute in giving substance to the cause of action created in Moragne. . That the Court used the word “dependents” in discussing the right to recover for loss of society, while lending support to our holding, is not dispositive. Chief Justice Marshall said: It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a" }, { "docid": "15061414", "title": "", "text": "law applied through OCSLA, and reversed the circuit court decision applying DOHSA to the exclusion of state statutes. We therefore do not consider the Dore opinion to control the issue of DOHSA’s exclusivity when DOHSA does apply, ii. Mobil Oil Corporation v. Higginbotham A second argument put forward by Air Logistics is that the Supreme Court decision in Mobil Oil Corp v. Higginbotham forecloses supplementation of DOHSA by state statutes. We disagree. Higginbotham dealt solely with whether damages available under DOHSA could be supplemented by the general maritime wrongful death remedy recognized in Moragne v. States Marine Lines. Whether DOHSA preempts state wrongful death remedies was not addressed in the decision. Particularly in light of the interpretation of section 7 of DOHSA set forth above, Higginbotham cannot be extended to answer this question. iii. In Re S/S HELENA Air Logistics also points out that under this court’s decision in In Re S/S HELENA, 529 F.2d 744, 753 (5th Cir.1976), state statutes are preempted by the Moragne death remedy when death occurs within territorial waters. We agree that the anomaly of allowing state statutes to oper ate on the high seas but not in territorial waters is apparent. Air Logistics’ argument has logic on its side, but again it does not take into account section 7. The general maritime law preempts state law, but DOHSA preempts the general maritime law, and, as explained, section 7 of DOHSA specifically saves state remedies, iv. Moragne v. States Marine Lines Air Logistics also asserts that section 7 was interpreted by the United States Supreme Court in Moragne and THE TUNGUS v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959) as preserving the effect of state statutes only within territorial waters. In the passages relied on by Air Logistics, however, the Court is simply quoting from the House and Senate reports on DOHSA. With regard to the Moragne opinion in particular, this argument reflects a basic misunderstanding of the context in which the court used this language. The respondent in Moragne argued that since DOHSA applied only to deaths occurring more than" }, { "docid": "10450691", "title": "", "text": "2015; and the law now adopted by this circuit. Bergen v. F/V St. Patrick, 816 F.2d 1345, 1347-49 (9th Cir.1987). Accordingly, plaintiffs must strike their claims for punitive damages for wrongful death. II. The Survival of Pain and Suffering Actions. While DOHSA preemption of wrongful death actions is complete, other questions remain: whether an action for pre-death pain and suffering is preempted; if not, whether the action survives; and whether it is an action under state law or general maritime law. It is clear that the Supreme Court did not intend to reach the preemption issue in Offshore Logistics. In footnote 1 the court stated: DOHSA does not include a survival provision authorizing recovery for pain and suffering before death. We do not address the issue whether the DOHSA recovery for the beneficiaries’ pecuniary loss may be “supplemented” by a recovery for the decedent’s pain and suffering before death under the survival provision of some conceivably applicable state statute that is intended to apply on the high seas. 106 S.Ct. at 2491 n. 1 (citations omitted). Two recent Ninth Circuit cases shed some light on all three questions, but answer them only in part. Some background, however, is necessary to an understanding of these cases. DOHSA covers only wrongful death actions. It does not speak to pre-death pain and suffering resulting from the same accident that ultimately causes death, and it has been held that pain and suffering are not elements of damages in a DOHSA action. Barbe v. Drummond, 507 F.2d 794, 797 (1st Cir.1974) (and cases cited therein). Thus, courts have spoken of a “gap” in DOHSA’s coverage. Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890, 893 (5th Cir.1984) (cited in Evich v. Morris, 819 F.2d 256, 258 (9th Cir., cert. denied, — U.S. —, 108 S.Ct. 261, 98 L.Ed.2d 218 (1987)). Prior to Moragne v. States Marine Lines, 398 U.S. 375, 387, 90 S.Ct. 1772, 1780, 26 L.Ed.2d 339 (1970), which recognized a general maritime action for wrongful death in state territorial waters, courts relied on state survival statutes to fill the “gap.” See Azzopardi," }, { "docid": "3239136", "title": "", "text": "a death occurring in territorial waters could recover for loss of society — because DOHSA specifically limited recovery to pecuniary loss. Higginbotham, 436 U.S. at 622-26, 98 S.Ct. at 2013-15. Offshore Logistics holds that in cases where DOH-SA applies a plaintiff may not supplement the recovery provided by DOHSA by resort to state wrongful death statutes. Offshore Logistics, 477 U.S. at 232, 106 S.Ct. at 2500. In essence, these cases hold that DOHSA, when it applies, preempts inconsistent federal law (Higginbotham) and inconsistent state law (Offshore Logistics). Neither case, however, discussed the availability of jury trials in cases covered by DOHSA. Nevertheless KAL argues that these cases, when combined with the general rule that admiralty suits are tried without a jury, establish that Plaintiffs are not entitled to a jury trial notwithstanding the existence of any other cause of action that would otherwise support a jury demand. Because these cases do not have the preemptive force which they are asked to bear, the Court disagrees. Although Congress placed federal jurisdiction under DOHSA in admiralty, that is not enough to establish that it intended that jury trials would never be available for DOHSA claims. See Moragne v. States Marine Lines, Inc., 398 U.S. 375, 400 n. 14, 90 S.Ct. 1772, 1787 n. 14, 26 L.Ed.2d 339 (1970) (“If we found from the legislative history that Congress imposed exclusive jurisdiction because of a desire to avoid the presentation of wrongful-death claims to juries, that might support an inference that Congress meant to forbid nonstatutory maritime actions for wrongful death.... However, that is not the case.”) Since DOHSA was enacted to provide a remedy where none existed, Congress did not consider the availability of jury trials when an additional federal remedy existed; however, it assumed that jury trials would be available when admiralty practice allowed for jury trials. 59 Cong.Rec. 4485 (1920) (remarks of Rep. Volstead). Therefore, it cannot be said that jury trials are repugnant to the DOHSA scheme, at least where there are concurrent claims triable by the jury joined with the DOHSA claim. This is entirely consistent with the general" }, { "docid": "23230303", "title": "", "text": "are recoverable in a negligence action brought under general maritime law, this court must look for guidance to congressional enactments in the field of maritime law, Supreme Court decisions, and relevant state legislation. Miles v. Apex Marine Corp., 498 U.S. 19, 27-28, 111 S.Ct. 317, 323, 112 L.Ed.2d 275 (1990); Moragne v. States Marine Lines, Inc., 398 U.S. 375, 408, 90 S.Ct. 1772, 1791-92, 26 L.Ed.2d 339 (1970). We should also, where possible, be guided by the twin aims of maritime law: achieving uniformity in the exercise of admiralty jurisdiction and providing special solicitude to seamen. See Moragne, 398 U.S. at 386-88, 90 S.Ct. at 1780-81; Sea-Land Servs., Inc., v. Gaudet, 414 U.S. 573, 577, 94 S.Ct. 806, 811, 39 L.Ed.2d 9 (1973). Because this accident occurred on the high seas, we find instructive the remedial provisions of the Death on the High Seas Act (“DOHSA”). 46 U.S.C.App. § 761 et seq. DOHSA limits recoverable damages in wrongful death suits to “pecuniary loss sustained by the persons for whose benefit the suit is brought.” 46 U.S.C.App. § 762. This express limitation has been held to preclude recovery for nonpeeuniary losses, such as loss of society or consortium, for deaths that occur on the high seas. Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 624, 98 S.Ct. 2010, 2014, 56 L.Ed.2d 581 (1977); Offshore Logistics, Inc. v. Tallentire, 471 U.S. 207, 211, 106 S.Ct. 2485, 2488, 91 L.Ed.2d 174 (1986). Loss of society damages are also not recoverable under the Jones Act, or under the general maritime law, for the wrongful death of a seaman. Miles, 498 U.S. at 31, 111 S.Ct. at 325. They are likewise unavailable in connection with the injury of a Jones Act seaman. Smith v. Trinidad Corp., 992 F.2d 996 (9th Cir.1993). In cases involving longshoremen injured or killed on state territorial waters, however, beneficiaries can recover loss of society damages. Gaudet, 414 U.S. at 584, 94 S.Ct. at 814 (as limited by Miles, 498 U.S. at 31-32, 111 S.Ct. at 325); Randall v. Chevron U.S.A., Inc., 13 F.3d 888, 903 (5th Cir.1994). We have also" }, { "docid": "15061418", "title": "", "text": "maritime law which the Supreme Court has nurtured for many decades, and we may agree with our brothers of the Ninth Circuit that to have state law preempted in territorial waters yet operative on the high seas is “a result as damaging to uniformity in wrongful death actions as it is illogical.” 701 F.2d at 80. It is indeed profoundly unsettling that state law will have nothing to do- with a claim for wrongful death which occurs on the Mississippi River, yet might apply to the death of an offshore worker forty miles from land, but this is the legacy of eighty-odd years of haphazard evolution in maritime wrongful death remedies. The remedy for wrongful death on the high seas under DOHSA has not changed since 1920, but remedies for maritime wrongful death occurring in inland waters have been altered almost beyond recognition. Prior to Moragne and In Re S/S HELENA, a straightforward interpretation of section 7 resulted in no anomaly — state statutes could apply in territorial waters, state statutes could apply on the high seas. Section 7 is simply out of sync with a changing jurisprudence. Nonetheless, Higginbotham teaches us that DOHSA must take priority over jurisprudential formulations, and this principle holds as true when the result is one we dislike as when it is one we applaud. If section 7 is to be molded to form a symmetrical whole with other developments in maritime wrongful death law, the artisan must be Congress and not this court. We turn next to whether Louisiana has the authority to extend the coverage of its wrongful death remedy to the high seas and if so, whether it has elected to do so. D. LEGISLATIVE JURISDICTION Air Logistics argues that the states simply do not have the power to legislate with regard to occurrences outside their territorial boundaries. They contend that as a matter of federalism, “Louisiana can no more enact laws governing death on the high seas than it could enact laws governing deaths in Mississippi.” This leads us into the relatively unexplored territory of legislative jurisdiction. Many of the decisions" }, { "docid": "11659215", "title": "", "text": "352 U.S. 802, 77 S.Ct. 20, 1 L.Ed.2d 37 (1956), the Ninth Circuit decided that the statutory phrase, “may maintain a suit for damages in the district courts of the United States, in admiralty ...,” ruled out jury trial even if diversity of citizenship existed. In rejecting the contention that the “saving to suiters” clause preserved the right to sue under diversity jurisdiction and thereby obtain a jury trial, the court noted “that the High Seas Act deprived no state or federal court of a then existing right.” 230 F.2d at 782. The court relied also on a colloquy on the floor of the House in which it was said that “this proceeding will be in admiralty and that there will be no jury.” 230 F.2d at 784 (quoting 59 Cong.Rec. at 4482). Between 1920 and 1970, deaths on the high seas gave rise to suits under DOHSA, and those occurring in territorial waters were governed by the various states’ wrongful death statutes. This structure resulted in a captious lack of uniformity. Then the Supreme Court held in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), that a federal cause of action did exist under general maritime law for wrongful deaths occurring within territorial waters. Most of the reasoning in the opinion deals with anomalies resulting from the absence of a federal remedy within state territorial waters and has no necessary application to the question of existence of any general maritime remedy in international waters. Justice Harlan stated in passing that he found in DOHSA “no expression of policy bearing on” any “desire to avoid the presentation of wrongful death claims to juries ... . ” Id. at 400 n. 14, 90 S.Ct. at 1787-88 n. 14. The opinion concluded “that the Death on the High Seas Act was not intended to preclude the availability of a remedy for wrongful death under the general maritime law in situations not covered by the Act.” 398 U.S. at 402, 90 S.Ct. at 1788. (emphasis supplied) Moragne left open a number of subsidiary questions concerning" }, { "docid": "15061405", "title": "", "text": "Six years later, this circuit held in In re S/S HELENA, 529 F.2d 744, 753 (5th Cir.1976), that after Moragne there was no longer any reason for admiralty courts to apply state wrongful death acts in territorial waters. A further critical development occurred in 1978 with Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978), in which the Supreme Court held that damages recoverable under DOHSA may not be supplemented by the Moragne death remedy. Generally, in post-Higginbotham actions by survivors of non-seamen, this circuit was left with the Moragne remedy supreme in territorial waters, DOHSA supreme on the high seas, and state statutes, it was strongly hinted, out of the picture altogether. The problem we have before us now arises because DOHSA permits recovery of only pecuniary damages — lost wages, loss of services, and the like. Many state wrongful death acts, including Article 2315 of the Louisiana Civil Code, allow recovery for non-pecuniary losses such as loss of love and affection. In an effort to recover these non-pecuniary losses, Taylor and Tallentire offer two alternative theories under which the Louisiana statute could apply to their actions. The first is that Article 2315 applies through section 1333 of OCSLA. The second is that DOHSA does not preempt state wrongful death acts, and Article 2315 grants them rights of its own force as state law. We address each of these contentions in turn. B. APPLICATION OF LOUISIANA LAW THROUGH § 1333 OF OCSLA “The purpose of the Lands Act was to define a body of law applicable to the seabed, the subsoil, and the fixed struc tures such as those in question here on the outer Continental Shelf.” Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 355, 89 S.Ct. 1835, 1837, 23 L.Ed.2d 360, 364 (1969). Section 1333 of OCSLA adopts the law of the adjacent state, including tort law, as surrogate federal law for the area the act covers. This provision was included in OCSLA in recognition of the fact that offshore workers were likely to have significant ties with adjacent" }, { "docid": "11280406", "title": "", "text": "seeking nonpecuniary damages for the loss of their sons’ society. None of the parents were financially dependent on their sons at the time of the casualty. In denying Circle Bar’s motion for summary judgment, the district court held that the parents had a cause of action for loss of society under Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). Thereafter, all of the claims of the widows and children were settled. Judgment in favor of the parents was entered after Circle Bar and the parents stipulated that the vessel was unseaworthy and the quantum of damages. II. The sole cause of action under which the parents may recover is the general maritime law cause of action for wrongful death announced in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). Other possible causes of action do not provide a remedy for the parents. The Death on the High Seas Act (DOHSA), 46 U.S.C. §§ 761-768 (1982), does not apply to deaths occurring, as here, in territorial waters and limits recovery to pecuniary damages, 46 U.S.C. § 762 (1982). The Jones Act, 46 U.S.C. § 688 (1982), is not available, because parents can recover only when the seaman is not survived by a spouse or children, 45 U.S.C. § 51 (1982). Finally, the Louisiana wrongful death statute, La.Civ.Code Ann. art. 2315 (West Supp.1985), is supplanted in maritime wrongful deaths by the general maritime cause of action for wrongful death created in Moragne. Matter of S/S Helena, 529 F.2d 744, 753 (5th Cir.1976). Because the parents’ remedy is exclusively under Moragne, we begin with a discussion of that case. In The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1866), the Supreme Court held that general maritime law did not provide a cause of action for wrongful death. As a result, there was no remedy for death on the high seas caused by the breach of a maritime duty. If the death occurred in territorial waters, federal law allowed the survivors to recover under the" }, { "docid": "15061415", "title": "", "text": "agree that the anomaly of allowing state statutes to oper ate on the high seas but not in territorial waters is apparent. Air Logistics’ argument has logic on its side, but again it does not take into account section 7. The general maritime law preempts state law, but DOHSA preempts the general maritime law, and, as explained, section 7 of DOHSA specifically saves state remedies, iv. Moragne v. States Marine Lines Air Logistics also asserts that section 7 was interpreted by the United States Supreme Court in Moragne and THE TUNGUS v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959) as preserving the effect of state statutes only within territorial waters. In the passages relied on by Air Logistics, however, the Court is simply quoting from the House and Senate reports on DOHSA. With regard to the Moragne opinion in particular, this argument reflects a basic misunderstanding of the context in which the court used this language. The respondent in Moragne argued that since DOHSA applied only to deaths occurring more than a marine league from shore, it evidenced a congressional intent to withhold a federal wrongful death remedy within territorial waters. The Court quoted this legislative history in support of its conclusion that Congress did not extend DOHSA to territorial waters simply because state statutes already provided a remedy in that area. 398 U.S. at 395-97, 90 S.Ct. at 1784-85, 26 L.Ed.2d at 353-55. In THE TUNGUS, the respondent argued that a New Jersey death statute should be applied in admiralty without regard to any of the procedural or substantive limitations New Jersey had placed on the right to recover. The Court noted that to accept this argument would be to infringe on the sovereignty Congress intended the states to retain over deaths in a state’s territorial waters, and for this proposition quoted the congressional reports. THE TUNGUS does not consider the application of state statutes beyond territorial waters. From these sketchy references we cannot derive the conclusion that the Supreme Court has interpreted section 7 to preserve state remedies only within territorial waters. In addition," }, { "docid": "7340922", "title": "", "text": "enacted the Death on the High Seas Act (DOHSA), ch. Ill, §§ 1-8, 41 Stat. 537 (codified as amended at 46 U.S.C. §§ 761-768 (1982)), and the Jones Act, ch. 250, § 33, 41 Stat. 1007 (codified as amended at 46 U.S.C. § 688 (1982)). On the one hand, DOHSA repudiated The Harrisburg rule for wrongful maritime death outside state territorial waters by providing an exclusive statutory remedy of pecuniary damages for wrongful death more than three miles from shore. 46 U.S.C. §§ 761-762; Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, -, 106 S.Ct. 2485, 2491, 2500, 91 L.Ed.2d 174 (1986). On the other hand, the Jones Act repudiated the rule for wrongful death of a seaman by providing a remedy against his employer. 46 U.S.C. § 688; Gillespie v. United States Steel Corp., 379 U.S. 148, 154-55, 85 S.Ct. 308, 312-13, 13 L.Ed.2d 199 (1964) (holding that the Jones Act remedy against a deceased seaman’s employer precludes recovery under state wrongful death statutes). Unfortunately, this mixture of state and federal law amounted to statutory chaos. See G. Gilmore & C. Black, The Law of Admiralty § 6-29, at 359 (2d ed. 1975); see also Sistrunk v. Circle Bar Drilling Co., 770 F.2d 455, 457 (5th Cir.) (enumerating the incongruities and terming them an “unfair and irrational system”), rehearing en banc denied, 775 F.2d 301 (5th Cir.1985), cert. denied, 475 U.S. 1019, 106 S.Ct. 1205, 89 L.Ed.2d 318 (1986). Subsequently, in 1970, the Supreme Court overruled The Harrisburg, disposed of the need to look to state law for possible recovery and held that a federal remedy for wrongful death existed under general maritime law. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 409, 90 S.Ct. 1772, 1792, 26 L.Ed.2d 339 (1970) (reversing the dismissal of a widow’s wrongful death claim based on unseaworthiness, where the applicable state statute did not recognize the claim). The Court expressly recognized that the exact parameters of this new cause of action could be defined only after further litigation. Id. at 408, 90 S.Ct. at 1792. But the Court consistently referred to the" }, { "docid": "15061403", "title": "", "text": "a century ago when the Supreme Court held in THE HARRISBURG, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886) that the general maritime law of the United States afforded no remedy for wrongful death. The admiralty courts were not entirely stymied by this forced parsimony and state wrongful death acts, if available, were enforced in admiralty to allow recovery in wrongful death cases. This practice was approved by the Supreme Court in the case of a high seas death in THE HAMILTON, 207 U.S. 398, 52 L.Ed. 264, 28 S.Ct. 133 (1907). Though the admiralty courts were disposed to grant a remedy when one could be fashioned, in the case of high seas deaths the coverage supplied by state statutes was not uniform, and did not adequately fill the void left by THE HARRISBURG. This is one of the considerations which led to the passage in 1920 of DOHSA and its companion legislation, the Jones Act (currently codified at 46 U.S.C. § 688 et seq.) See Moragne v. States Marine Lines, 398 U.S. 375, 393-94, 90 S.Ct. 1772, 1783-84, 26 L.Ed.2d 339, 351-53 (1970). Section 1 of DOHSA provides: Whenever the death of a person shall be caused by a wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any state, ... the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if the death had not ensued. 46 U.S.C. § 761. After 1920, DOHSA supplied a uniform remedy for deaths occurring over a marine league from shore; within territorial waters, after some initial confusion, state statutes continued to hold sway. The evolution of maritime wrongful death remedies continued in 1970 with Moragne v. States Marine Lines, in which the Supreme Court overruled THE HARRISBURG and established a remedy for wrongful death grounded in the general maritime law of the United States." }, { "docid": "15061413", "title": "", "text": "S.Ct. 1835, 23 L.Ed.2d 360 (1969) controls this case. In Dore, the survivors of a worker killed when he fell from an offshore platform contended, as do the plaintiffs in this case, that in addition to DOHSA they were entitled to invoke the Louisiana death statute either of itself or through OCSLA. This court rejected both contentions, holding that DOHSA was the plaintiffs sole remedy. 391 F.2d at 674-76. The Supreme Court granted certiorari and reversed, holding that since under the terms of OCSLA offshore drilling platforms were to be treated as federal enclaves located in an upland state, the case was not within the admiralty jurisdiction. Even if there were admiralty jurisdiction, DOHSA did not apply because Congress did not intend that result when it adopted the Lands Act. 395 U.S. at 365-66, 89 S.Ct. at 1842, 23 L.Ed.2d at 370. State law became federal law federally enforced as to platform accidents. There is no indication that the Court considered the circuit court holding that DOHSA preempts state statutes. It determined, however, that Louisiana law applied through OCSLA, and reversed the circuit court decision applying DOHSA to the exclusion of state statutes. We therefore do not consider the Dore opinion to control the issue of DOHSA’s exclusivity when DOHSA does apply, ii. Mobil Oil Corporation v. Higginbotham A second argument put forward by Air Logistics is that the Supreme Court decision in Mobil Oil Corp v. Higginbotham forecloses supplementation of DOHSA by state statutes. We disagree. Higginbotham dealt solely with whether damages available under DOHSA could be supplemented by the general maritime wrongful death remedy recognized in Moragne v. States Marine Lines. Whether DOHSA preempts state wrongful death remedies was not addressed in the decision. Particularly in light of the interpretation of section 7 of DOHSA set forth above, Higginbotham cannot be extended to answer this question. iii. In Re S/S HELENA Air Logistics also points out that under this court’s decision in In Re S/S HELENA, 529 F.2d 744, 753 (5th Cir.1976), state statutes are preempted by the Moragne death remedy when death occurs within territorial waters. We" }, { "docid": "18395397", "title": "", "text": "years, under the doctrine of The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), general federal maritime law did not afford an effective right of action for wrongful death occurring on the high seas. For all practical purposes, from the time of The Harrisburg until the passage of DOHSA in 1920, “there was no remedy for death on the high seas caused by breach of one of the duties imposed by federal maritime law.” Moragne v. States Marine Lines, Inc., 398 U.S. 375, 393, 90 S.Ct. 1772, 1784, 26 L.Ed.2d 339 (1970). And state laws were of little help: “The general understanding was that the statutes of the coastal States, which provided remedies for deaths within territorial waters, did not apply beyond state boundaries.” Id. at 393 n. 10, 90 S.Ct. at 1784 n. 10. DOHSA was enacted in 1920 to fill this void; it provided — and continues to provide — a federal maritime remedy for wrongful deaths occurring beyond the territorial waters of the states, that is, more than three miles from shore. All of the parties to this litigation agree that the deaths of Jack and Thelma Heath, given the attendant circumstances, fall squarely within the ambit of DOHSA. Indeed, the uncontroverted facts admit of no other rational conclusion. The parties disagree, however, as to the exclusivity vel non of the DOHSA remedy and as to the extent that DOHSA forecloses the plaintiffs from recourse to other channels of remediation. These disagreements must be assessed piecemeal, that is, the effect of DOHSA must be assayed vis-a-vis each specie of claim which the plaintiffs labor to present. 1. Preemption: State Wrongful Death Claims. While these motions were pending, the Supreme Court resolved a conflict in the circuits and decided that, where DOH-SA applied, there was no room for the operation of state wrongful death laws. See Offshore Logistics, Inc. v. Tallentire, — U.S. -, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986). In Tallentire, the Court held flatly that, in the reflected light of DOH-SA’s legislative history and the congressional purposes underlying the Act, the language" }, { "docid": "561924", "title": "", "text": "the plaintiff, the defendant, and the victim were all residents of Massachusetts and since the boat was moored there, we look to Massachusetts law and apply its survival statute, Mass.Gen.Laws ch. 228, § 1(2) (a) (1958). The advantage of this theory — and the reason it was accepted in a recent ease, Dugas v. National Aircraft Corp., 438 F.2d 1386 (3d Cir. 1971) — is that it avoids the apparent conflict with DOHSA that results if pain and suffering is held to be an element of damages under the recently recognized federal maritime wrongful death action. See the discussion infra of Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). This reasoning holds that DOHSA did not preempt the separate and distinct remedy given by state survival statutes, and thus it is proper to award damages under the latter statutes. On the other hand, the disadvantages of this theory are twofold. It requires a federal court to divine whether the state survival statute was meant to apply to admiralty claims, which may be difficult enough for torts occurring in state territorial waters but is even more difficult in a case like this where the death occurs on the high seas. Cf. Moragne, supra, at 393 n. 10, 90 S.Ct. 1772. This theory also makes recovery by an admiralty plaintiff turn on whether the concerned state has enacted a survival statute. The second theory for sustaining the plaintiff’s recovery depends on Moragne, supra. In that case, the Supreme Court overruled The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), and held that general maritime law provides a cause of action for wrongful death caused by unseaworthiness. Part of the plaintiff’s claim in Moragne was an unseaworthiness claim based on the Florida wrongful death statute. Prior to the Court’s decision in Moragne, a state wrongful death statute could be used in admiralty, but the state claim had to be enforced “as an integrated whole, with whatever conditions and limitations the creating State has attached.” The Tungus v. Skovgaard, 358 U.S. 588, 592," }, { "docid": "16683318", "title": "", "text": "as “factual findings”, they had no bearing on the issues in this case, and could not have affected the district court’s findings. The district court, therefore, did not commit reversible error in admitting Exhibit 3 in its entirety. III. Another issue raised by this appeal is whether the district court properly awarded the plaintiff damages for loss of society. The district judge made express findings of negligence and unseaworthiness, but his opinion does not state whether the defendants were liable under the Jones Act, DOH-SA, or general maritime law. Since damages for nonpecuniary claims are not recoverable under the Jones Act or DOHSA, we must determine whether the district court’s finding of unseaworthiness supports recovery of damages for loss of society under general maritime law. Resolution of this question turns upon the application of several recent decisions to the peculiar facts of this case. The law applicable to admiralty wrongful death actions has undergone considerable judicial scrutiny in recent years. Our analysis of these cases begins with Moragne v. States Marine Lines, Inc., 1970, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339. In Mo-ragne, the Supreme Court recognized for the first time a federal remedy for wrongful death based on the general maritime law. Specifically, Moragne permitted recovery under the unseaworthiness doctrine for a death in territorial waters. Prior to Moragne, federal maritime death actions could be brought only under the Jones Act and DOHSA. The Jones Act established a cause of action for the death of a seaman based on the direct or vicarious negligence of his employer; it did not recognize unseaworthiness as a basis of recovery. 398 U.S. at 395, 90 S.Ct. 1772. DOHSA provided a remedy for the wrongful death of any person resulting from negligence or unseaworthiness on the high seas, but recognized no cause of action for a death caused by unseaworthiness in territorial waters. Before Moragne, when a nonseaman was killed in territorial waters, state statutes provided the only wrongful death remedies. If a seaman was killed in territorial waters by unseaworthiness, his beneficiaries could not sue the vessel owner because the" }, { "docid": "6450059", "title": "", "text": "a separate basis for our conclusion that an administrator is not barred from pursuing a survival action, as well as a wrongful death action, following a death on the high seas. (30) The starting point for our analysis is the decision of Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). Moragne establishes that a cause of action exists under general maritime law for death caused by violation of maritime duties. Moragne overruled The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886) which had held that general maritime law does not afford a cause of action for wrongful death, in the absence of a federal or state statute granting such relief. Consequently, during the post Harrisburg era, federal admiralty courts routinely applied state wrongful death statutes to provide relief. Moragne therefore discarded such an approach. The application of maritime law in general, as opposed to a particular state statute, is evidenced by the Supreme Court’s review of English common law, federal statutes, and all the relevant state statutes in Moragne. Id. 398 U.S. at 381-383 and 390, 90 S.Ct. at 1777-1779 and 1782. Additionally, the Court’s subsequent decision in Sealand Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), entailed a general discussion of wrongful death statutes as compared to specific state statutes. Id. at 575-583, n. 2 and 5-9, 94 S.Ct. at 810-814. Thus, at least one court and commentator have interpreted Moragne and Gaudet as precluding the application of the statute of a particular state, as opposed to applying general maritime law. See Matter of S/S Helena, 529 F.2d 744 (5th Cir.1976); Benedict on Admiralty, Volume 2, Supplement at page 69. Finally, neither Moragne nor Gaudet hold that a survival action does not exist under general maritime law. (31) Although Dugas was decided after Moragne, Dugas neither acknowledged nor addressed the rationale of Moragne; namely, that general maritime law provides the remedy rather than the specific state statute. Indeed, one commentator has viewed Dugas as a pre-Moragne decision, since it applied a specific" } ]

[ { "docid": "1050457", "title": "", "text": "Ad.News at 3497. Nothing could be clearer. The Secretary supposed, and the Committee agreed, that judicial relief would follow from extension of the Tort Claims Act, whereas only administrative relief would be afforded if the analogy of 10 U.S.C. § 2733, which contains preclusive language, were followed. He did not want to extend § 2733 because the bill, if enacted, would deal with torts by a different class of persons, not in federal service. Hence the placement of the amended bill, as passed, in the code as part of the National Guard statutes, 32 U.S.C. § 715, rather than in Title 10. That the Secretary correctly construed 10 U.S.C. § 2733 is held in Broadnax v. United States Army, 710 F.2d 865 (D.C. Cir.1983); Labash v. United States, 668 F.2d 1153 (10th Cir.), cert. denied, 456 U.S. 1008, 102 S.Ct. 2299, 73 L.Ed.2d 1303 (1982). Its provisions for preclusion are identical to those we must construe. Apparently § 2733 remains of importance as authority for settling tort claims against the Army not cognizable under the Tort Claims Act, e.g., those arising in a foreign country. We add that the plaintiffs’ claim is a money claim. As it sounds in tort, it is not within district court jurisdiction under the “Little Tucker Act,” 28 U.S.C. § 1346(a)(2). It was not within the Tort Claims Act because the person committing the tort was not a federal employee. Under the landmark case United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976), consent of the United States to be sued “cannot be implied but must be unequivocally expressed.” Id. at 399, 96 S.Ct. at 954. A money claim which can be assuaged only by expenditure from the Treasury of the United States cannot be entertained without a statutory grant of jurisdiction to a United States court, and dressing it up as a review under the APA does not help at all. Califano v. Sanders, supra; Hawaii v. Gordon, 373 U.S. 57, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963); Maier v. Orr, 754 F.2d 973 (Fed.Cir.1985). It therefore would be" } ]

[ { "docid": "10134341", "title": "", "text": "nor FAHA grant a private right of action, Plaintiffs bring their claims through the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706. On November 24, 2014, the parties moved for summary judgment. During its consideration of summary judgment, the Court determined that Plaintiffs were entitled to judgment as a matter of law on grounds they did not raise in their motion. Specifically, upon review of the Administrative Record and the applicable law, the Court concluded that the Flyover Project is not the type of project that may be categorically excluded under NEPA and FAHA. Accordingly, and. pursuant to Federal Rule of Civil Procedure 56(f), the Court notified Defendants of its intent to enter summary judgment in favor of Plaintiffs and invited Defendants to brief the Court as to why summary judgment on these grounds would be inappropriate. (Doc. 122). Defendants filed their supplemental briefs (Does. 123, 124) and Plaintiffs responded (Doc. 125). This matter is now ripe for review. II. STANDARD OF REVIEW District courts review agency action under the “arbitrary and capricious” standard. Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209, 1216 (11th Cir.2002). This standard does not require the agency to have taken the best or most reasonable action and does not permit the district court to review the agency’s action with the benefit of hindsight. Druid Hills Civic Ass’n, Inc. v. Fed. Highway Admin., 772 F.2d 700, 708-09 (11 th Cir.1985). Rather, the agency’s action need only be a rational one which it selected by following its established decision-making process. See id. A district court may therefore only set aside an agency’s action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with láw [or found to be] without observance of procedure required by law.” Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir.2008) (quoting 5 U.S.C. § 706(2)) (internal quotation marks omitted). Agency action is presumed valid until proven otherwise. Ohio Valley Envtl. Coal. v. Araco- ma Coal Co., 556 F.3d 177, 192 (4th Cir.2009), cert. denied, 561 U.S. 1051, 131 S.Ct. 51, 177 L.Ed.2d 1141 (2010)." }, { "docid": "23164713", "title": "", "text": "which calls for review to determine if the agency action was arbitrary and capricious, 5 U.S.C. §§ 702, 706 (1976), is inapplicable here. Instead, defendants claim that under the decision in Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958), the only basis for review is whether the Marine Corps has acted within its jurisdiction (scope of authority), consistent with the Constitution and applicable statutes and regulations. Essentially, defendants rely on the sovereign immunity doctrine to support their claim that review is precluded. Defendants, however, fail to meet this court’s opinion in Jaffee v. United States, 592 F.2d 712 (3d Cir.), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979) (Jaffee I). Yet it was that case on which the district court relied in holding that judicial review is available not only to determine if a military official has acted unconstitutionally, outside the scope of his or her powers, or in violation of regulations, but also to determine if an action was arbitrary, capricious or an unlawful exercise of discretion. In Jaffee I, suit was filed against the United States (including military departments and officials) seeking, inter alia, equitable relief on a claim arising out of actions by the Department of the Army. We held there that the APA, which provides in part that A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted ... in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States.... 5 U.S.C. § 702 (1976), waives sovereign immunity for equitable actions brought pursuant to 28 U.S.C. § 1331. Accord, Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980). We further held that the United States Army is an “agency” within" }, { "docid": "10549968", "title": "", "text": "NEPA, CWA, NHPA and NAGPRA. The court has jurisdiction under 28 U.S.C. § 1331 to hear these claims. 2. Standard of Review Courts traditionally afford the decisions of administrative agencies due deference in reviewing agency action. See, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). The Second Circuit has stated the appropriate standard of review when reviewing actions and decisions by the Corps to issue permits. “In reviewing the validity of a decision by the Corps to issue a permit under the [CWA], a court should, as provided by the [APA], uphold the decision unless it is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Sierra Club v. United States Army Corps of Eng., 701 F.2d 1011, 1032 (2d Cir.1983) (quoting 5 U.S.C. § 706(2)(A)). In defining arbitrary and capricious, the Second Circuit has stated that [A]n agency’s decision is held to be arbitrary and capricious when it relies on factors Congress did not want considered, or utterly fails to analyze an important aspect of the problem, or offers an explanation contrary to the evidence before it, or its explanation ... is so implausible that it cannot be ascribed to differing views or agency expertise. Sierra Club v. United States Army Corps of Eng., 772 F.2d 1043, 1051 (2d Cir.1985). Accordingly, any review of the decision by the Corps to authorize the Project under GP 38 is limited to the arbitrary and capricious standard as established by statute and defined by relevant case law. B. Plaintiffs’ Claims 1. Claim 1 — General Permit 38 is Invalid Plaintiffs assert that General Permit 38, first issued in 1982 and reissued in 1987, is invalid because it fails to comply with the requirements of the APA, NEPA and the Corps’ own regulations. a. APA Plaintiffs claim that GP 38 is a “rule” under the APA because it is an agency statement of general applicability designed to implement the CWA. As a “rule” the APA requires it to be published in the Federal Register. 5 U.S.C. §" }, { "docid": "1771005", "title": "", "text": "against her in the various Government reports. She argues that such agency actions were arbitrary, capricious, an abuse of discretion, and not in accordance with law, in violation of the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Under § 704 of the APA, review is available under the APA only for final agency action “for which there is no other adequate remedy.” 5 U.S.C. § 704. It is clear that “§ 704 ‘does not provide additional judicial remedies in situations where the Congress has provided special and adequate review procedures.’ ” Bowen v. Massachusetts, 487 U.S. 879, 903, 108 S.Ct. 2722, 2736, 101 L.Ed.2d 749 (1988) (citing Attorney General’s Manual on the Administrative Procedure Act 101 (1947)). A careful reading of the amended complaint reveals that plaintiff’s APA claim is, in part, simply a restatement of her Privacy Act claims. And, to the extent that it is not, it is a claim relating to a personnel action, for which Congress has provided the Civil Service Reform Act, Pub.L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.) (CSRA). In other words, Congress has provided plaintiff with statutory schemes and remedies through which she may seek relief. Thus, her APA claim is properly dismissed under § 704. 3. 42 U.S.C. § 1985(1), (3) Plaintiff alleges that defendants participated in a continuing conspiracy to harm her reputation and employment opportunities and to deprive her of equal protection of the laws, through gender bias, in violation of 42 U.S.C. § 1985(1), (3). Our Court of Appeals has held that the CSRA is the exclusive remedy for aggrieved federal employees and that, therefore, they are precluded from resorting to § 1985(1). Spagnola v. Mathis, 809 F.2d 16, 28-30 (D.C.Cir.1986), on reh’g en banc, 859 F.2d 223 (D.C.Cir.1988). Plaintiff might argue that because she is exempt from the remedial provisions of the CSRA, she has no remedy and therefore may bring suit under § 1985. However, the fact that Congress explicitly denied a remedy to Schedule A employees shows an intention to deny them a statutory or constitutional remedy for" }, { "docid": "17647984", "title": "", "text": "the district court’s geographical Court of Appeals, see 28 U.S.C. § 1295(a)(2) (1988). Finding that the complaint in this case “seeks disability retirement pay of more than $10,000,” the district court concluded that Kidwell’s suit fell into the category of cases within the sole jurisdiction of the Court of Federal Claims. Kidwell v. Dept. of the Army, No. 93cv2238 at 3 (D.D.C. May 16, 1994). Accordingly, the district court dismissed the complaint for lack of jurisdiction. Id. at 4. We review the district court’s resolution of this purely legal issue de novo. See Pershing Div. of Donaldson, Lufkin & Jenrette Sec. Corp. v. United States, 22 F.3d 741, 743 (7th Cir.1994); FDIC v. Hulsey, 22 F.3d 1472, 1479-80 (10th Cir.1994). Kidwell’s complaint did not seek any monetary relief. Instead, it asked that “the defendant be required to correct plaintiffs army records to reflect a military retirement in pay grade E-4 [Kidwell’s pay grade when discharged] on October 8, 1970 with a 100% disability rating,” as well as for “any other relief that he may be entitled to.” Complaint, Kidwell v. Dept. of the Army, No. 93cv2238 (D.D.C. Oct. 29, 1993), in J.A. at 48-49. Jurisdiction, he alleges, was founded on the Administrative Procedure Act, which provides for judicial review, 5 U.S.C. § 704 (1988), and waives sovereign immunity for actions “seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority.” 5 U.S.C. § 702 (1988). Since Kidwell’s complaint fulfills the requirements for district court jurisdiction under the APA and does not explicitly request monetary relief from the United States, jurisdiction under the APA would appear to lie. The plain language of a complaint, however, does not necessarily settle the question of Tucker Act jurisdiction. See, e.g., Megapulse, Inc. v. Lewis, 672 F.2d 959, 967-68 (D.C.Cir.1982); see also Bowen, 487 U.S. at 916, 108 S.Ct. at 2743 (Scalia, J., dissenting) (“[District court jurisdiction is not established merely because a suit fails to pray for a money judgment.”" }, { "docid": "2070099", "title": "", "text": "of EEO officer in failing to file timely charge remanded to district court to consider plaintiffs equitable argument, rejected by defendant’s EEO office, that late filing should be excused). Therefore, plaintiff’s Title VII claim should have been dismissed without prejudice. II Plaintiff also claims that she was denied due process of law by the selection of someone allegedly “less qualified,” and by the failure to follow Army regulations. The district court properly treated this as a claim pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. 701 et seq., and granted summary judgment for the defendants on that basis. Although plaintiff has never clearly set forth her APA claim, it appears that she seeks review under § 706(2)(A) and (D). Her unsupported contention that de novo review is warranted under § 706(2)(F) must be rejected, because the decision to hire someone else was neither “adjudicatory in nature” nor were the “agency fact finding procedures [] inadequate.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971); cf. Porter v. Califano, 592 F.2d 770, 782 (5th Cir.1979) (suspension without pay adjudicatory, and accused officials intimately involved with factfinding). Upon review of the administrative record, plaintiff’s claim under § 706(2)(A) amounts to nothing more than her belief that she, not the selectee, was the best qualified person for the job. She has presented no evidence that the decision to hire an eligible person who possessed the minimum qualifications was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” All that is required is that there be a rational connection between the evidence and the agency’s decision. Tackitt v. Prudential Insurance Company of America, Inc., 758 F.2d 1572, 1575 (11th Cir.1985). Here, the personnel officer gave rational reasons for the choice of the selectee, so we are not empowered to substitute our judgment for that of the Army Personnel Office as to which candidate was best qualified for the permanent position. Bowman Transportation, Inc. v. Arkansas-Best Freight Systems, Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 442, 42 L.Ed.2d" }, { "docid": "20653142", "title": "", "text": "was the Army’s final decision on Fulbright’s 2008 request, and it produced a change in legal rights as it required that the Army promote Fulbright to major. Thus, Fulbright’s claims here are not barred by the APA’s statute of limitations. Hi. Full and Adequate Remedy A plaintiff may not bring suit under the APA if he can achieve identical relief under a different statute because only “final agency action for which there is no other adequate remedy in a court [is] subject to judicial review” under the APA. 5 U.S.C. § 704; Bennett, 520 U.S. at 162, 117 S.Ct. 1154. Similarly, this Court lacks jurisdiction to hear claims that are in actuality Tucker Act claims in excess of $10,000 because Congress has vested exclusive jurisdiction for those claims in the CFC. E.g., Smalls, 471 F.3d at 189. Fulbright’s complaint requests injunc-tive and declaratory relief that he is entitled to a MEB and retroactive disability retirement from the Army; he does not seek monetary damages. Compl. ¶¶ 25-30. The Secretary contends that because Fulbright could have received the relief he seeks through a Tucker Act suit in the CFC, he cannot bring an APA claim here. Def.’s Mem. in Supp. of Mot. to Dismiss at 11-13. The Secretary advances two supporting arguments: that the actual relief Fulbright seeks is monetary — the record correction, it argues, is simply a means to an end — and that the CFC was capable of providing the injunctive relief Fulbright seeks. Id. As to the first argument, “ ‘as long as [a] complaint only requests non-monetary relief that has considerable value independent of any future potential for monetary relief [,]’” a plaintiff need not pursue a Tucker Act claim and may bring suit in this Court under the APA. Tootle v. Secretary of the Navy, 446 F.Sd 167, 176 (D.C.Cir.2006) (quoting Kidwell v. Dep’t of the Army, Bd. for Correction of Military Records, 56 F.3d 279, 284 (D.C.Cir.1995)). As the D.C. Circuit explained in Havens, a request for a record correction has independent value other than the monetary benefits a disability designation provides. See Havens," }, { "docid": "21335406", "title": "", "text": "accordance with the law”.... An agency’s factual findings are conclusive if supported by substantial evidence. ... 391 F.3d 704, 707 (6th Cir.2004) (citations omitted). See also Roanoke River Basin Ass’n v. Hudson, 940 F.2d 58, 61 (4th Cir.1991) (“Our review, like that of the district court, is limited to a determination of whether the Corps’ decision was arbitrary, capricious, otherwise not in accordance with law, or unsupported by substantial evidence.”); Hoosier Envtl. Council, Inc. v. United States Army Corps of Eng’rs, 105 F.Supp.2d 953, 965 (D.Ind.2000) (“In an action for review of the grant of a § 404 permit, courts must examine the administrative record to determine whether the COE made an arbitrary or capricious decision, abused its discretion, acted contrary to law or regulation, or lacked the support of substantial evidence.”). The vast majority of courts, however, focuses solely on the arbitrary and capricious standard as the proper one for review of agency action. Dubois, the most recent First Circuit case addressing the review of an agency action under NEPA and the CWA, states unequivocally: [T]he appropriate scope of review for both NEPA claims and CWA claims is the standard set forth in the APA. 5 U.S.C. § 706(2)(A)(1994) (citations omitted). Under the APA, “the reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law. 5 U.S.C. § 706(2)(A).” Dubois, 102 F.3d at 1284. Nowhere does Dubois mention the substantial evidence standard. See also Utahns v. United States Dep’t of Transp., 305 F.3d 1152, 1164 (10th Cir.2002); Preserve Endangered Areas of Cobb’s History v. United States Army Corps of Eng’rs, 87 F.3d 1242, 1246 (11th Cir.1996); Advocates for Trans. Alternatives, Inc. v. United States Army Corps of Eng’rs, 453 F.Supp.2d 289 (D.Mass.2006). The substantial evidence standard of § 706(2)(E) applies only if it involves a “case subject to sections 556 and 557 of [title 5] or otherwise reviewed on the record of an agency hearing provided by statute.” 5 U.S.C. § 706(2)(E). 5 U.S.C. § 556 applies to “hearings required" }, { "docid": "21335405", "title": "", "text": "The Plaintiffs have raised a confusing issue. “Arbitrary and capricious” and “substantial evidence” are not the same. Professors Wright and Koch have pointed out: “Courts have recognized that the substantial evidence standard requires greater judicial scrutiny of an agency decision than does the arbitrariness standard. Thus, on the continuum ..., this word formula communicates judicial scrutiny somewhere between de novo and arbitrariness review.” 33 Charles A. Wright & Charles H. Koch, Federal Practice and Procedure § 8333 (2006). As Justice Kennedy did in his concurrence, some courts have applied both standards to their review of an agency action. For example, in its decision in Carabell v. United States Army Corps of Engineers, the Sixth Circuit described the standard of review: Where, as here, the district court’s order is based on its review of an administrative agency’s final decision, our review is governed by the Administrative Proce dures Act (“APA”) The APA provides that a court shall set aside an agency’s decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law”.... An agency’s factual findings are conclusive if supported by substantial evidence. ... 391 F.3d 704, 707 (6th Cir.2004) (citations omitted). See also Roanoke River Basin Ass’n v. Hudson, 940 F.2d 58, 61 (4th Cir.1991) (“Our review, like that of the district court, is limited to a determination of whether the Corps’ decision was arbitrary, capricious, otherwise not in accordance with law, or unsupported by substantial evidence.”); Hoosier Envtl. Council, Inc. v. United States Army Corps of Eng’rs, 105 F.Supp.2d 953, 965 (D.Ind.2000) (“In an action for review of the grant of a § 404 permit, courts must examine the administrative record to determine whether the COE made an arbitrary or capricious decision, abused its discretion, acted contrary to law or regulation, or lacked the support of substantial evidence.”). The vast majority of courts, however, focuses solely on the arbitrary and capricious standard as the proper one for review of agency action. Dubois, the most recent First Circuit case addressing the review of an agency action under NEPA and the CWA, states" }, { "docid": "20653141", "title": "", "text": "(D.C.Cir.1997) (citing among others Interstate Commerce Comm’n v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 278, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1993)); see also, Houseal v. McHugh, 962 F.Supp.2d 286, 294-95 (D.D.C.2013) (ABCMR decision to deny request for reconsideration creates an independent claim under the APA where that decision is on the merits). Demonstrating that no good deed goes unpunished, the ABCMR here decided to waive its three-year statute of limitations in the interest of justice and issue a new final decision on Fulbright’s request for a record correction in January 2009 because it determined that he should have been promoted to major from the reserve group in 1990. AR 74-77. Based on the reasoning of both Havens and Sendra, then, this was a new final agency action that can be challenged under the APA, regardless of whether Fulbright’s 2008 petition is considered a request for reconsideration of the 1993 denial or a new request for a record correction. Moreover, the ABCMR’s 2009 decision passes both elements of the final agency action test: it was the Army’s final decision on Fulbright’s 2008 request, and it produced a change in legal rights as it required that the Army promote Fulbright to major. Thus, Fulbright’s claims here are not barred by the APA’s statute of limitations. Hi. Full and Adequate Remedy A plaintiff may not bring suit under the APA if he can achieve identical relief under a different statute because only “final agency action for which there is no other adequate remedy in a court [is] subject to judicial review” under the APA. 5 U.S.C. § 704; Bennett, 520 U.S. at 162, 117 S.Ct. 1154. Similarly, this Court lacks jurisdiction to hear claims that are in actuality Tucker Act claims in excess of $10,000 because Congress has vested exclusive jurisdiction for those claims in the CFC. E.g., Smalls, 471 F.3d at 189. Fulbright’s complaint requests injunc-tive and declaratory relief that he is entitled to a MEB and retroactive disability retirement from the Army; he does not seek monetary damages. Compl. ¶¶ 25-30. The Secretary contends that because Fulbright could have" }, { "docid": "5869388", "title": "", "text": "the records were maintained by the Civil Service Commission and disclosed by it, such actions could not be the basis for liability here since plaintiff did not bring his civil action against that agency. See § 552a(b) and (g)(1)(D). On the other hand, if the EEO files in question were maintained by the Department of the Army, as we feel they were, and were disclosed by it to the officers, such disclosure was permitted “to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties.” § 552a(b)(l). Both Lenko and Samaniego had need of plaintiff’s EEO files in performance of their duties. Their duties included advising the White Sands command group concerning personnel matters. The EEO files were reviewed and analyzed to determine- whether any adverse personnel action should be taken against plaintiff based on his statements and actions, and the materials were allegedly contained in plaintiff’s EEO files. Thus any such disclosure by the Army was not improper. See Beller v. Middendorf, 632 F.2d 788, 798-99 n.6 (9th Cir.), cert. denied, 452 U.S. 905, 101 S.Ct. 3030, 69 L.Ed.2d 405; cf., Parks v. United States Internal Revenue Service, 618 F.2d 677, 681 (10th Cir.). V Plaintiff argues further that he is entitled to actual damages which were denied by the trial court. More specifically he says that he stated a claim for damages under § 552a(g)(l)(C) and (g)(4) in that defendant and his agents intentionally and willfully failed to maintain the ROI and the other memoranda in the accurate, relevant, timely and complete manner required by the Privacy Act, that consequently determinations adverse to him were made, and that he was therefore erroneously denied damages. Plaintiff thus only makes a general allegation that § 552a(g)(l)(C) was violated. (Brief of Appellant at 9). Plaintiff was permitted to review the ROI in its sanitized form prior to the district court’s decision and the Army was subsequently ordered to allow the plaintiff to copy the report in the same form. (I R. 240, 275). Plaintiff thus had access" }, { "docid": "21335399", "title": "", "text": "Consistent with their determined opposition to the project, the Plaintiffs have waged a full scale assault in this Court against the Corps’s approval. IV. Standard of Review A. Preliminary Injunction Standard This Court analyzes a request for a preliminary injunction through application of the following four well-established factors: (1) the likelihood of success on the merits; (2) the potential for irreparable harm [to the movant] if the injunction is denied; (3) the balance of relevant impositions, i.e., the hardship to the nonmov-ant if enjoined as contrasted with the hardship to the movant if no injunction issues; and, (4) the effect (if any) of the court’s ruling on the public interest. Esso Std. Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir.2006) (quoting Bl(a)ck Tea Soc’y v. City of Boston, 378 F.3d 8, 11 (1st Cir.2004)); see also Puerto Rico Conservation Foundation v. Larson, 797 F.Supp. 1066, 1069 (D.P.R.1992). The party seeking relief bears the burden of demonstrating that these factors “weigh in its favor.” Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir.2003). This burden is a heavy one: “Because a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal.” Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir.2003) (reversing the denial of a preliminary injunction in a CWA permitting case); W. Ala. Quality of Life Coal. v. United States FHA, 302 F.Supp.2d 672, 679 (D.Tex.2004) (a grant of the preliminary injunctive remedy “must be supported by specific findings of the court.”). B. Arbitrary and Capricious Standard Because this is a review of an action by a federal agency — the Army Corps of Engineers — the standard of review is supplied by the Administrative Procedures Act (APA). See 5 U.S.C. § 702. Under the APA, a district court will uphold an agency’s decision unless it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law....” 5 U.S.C. § 706(2)(A); see also Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97-98, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (“The role of" }, { "docid": "13651613", "title": "", "text": "by the government cannot be said to be an incidental effect in this case. COUNT SEVEN At long last the Court has arrived at Count Seven, where Plaintiff seeks judicial review of the final agency decision sustaining his termination for cause from AAFES. Both parties filed motions for summary judgment on this Count and agree that the following three issues are to be decided by the Court: (1) whether the charges of misconduct sustained in AAFES’s final decision are supported by substantial evidence in the administrative record; (2) whether the decision to terminate Plaintiffs employment, rather than some lesser form of disciplinary action, was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; and (3) whether AAFES observed the procedures required by law when removing Plaintiff. A. Standard and Scope of Review. The Fifth Circuit has held that a court’s subject matter jurisdiction to review claims for non-monetary relief involving AAFES personnel decisions “flows from the confluence of 28 U.S.C. § 1331(a) and 5 U.S.C. § 702.” Sheehan v. Army and Air Force Exchange Service, 619 F.2d 1132, 1141 (5th Cir.1980), rev’d on other grounds, 456 U.S. 728, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982). While Section 702 provides the right of review, Section 706 provides the proper scope and standard of review under the APA. Section 706 provides in relevant part: The reviewing court shall— (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review" }, { "docid": "17721589", "title": "", "text": "stage of the program requires observed urinalysis makes the Court question the reasonableness of the intrusion into possible privacy expectations. However, the Court cannot at this time consider these issues despite the alleged harm to the plaintiffs. Cf. Hastings v. Judicial Conference of United States, 770 F.2d 1093, 1102 (D.C.Cir.1985) (agencies entitled to measure of comity “sufficient to preclude disruptive injunctive relief by federal courts absent a showing that serious and irremediable injury will otherwise result”) (emphasis added). B. Challenge Under the Administrative Procedure Act Plaintiffs’ charge that Directive 1010.9 and AR 600-85, Interim Change No. Ill, are violative of the APA, 5 U.S.C. § 706(2)(A)-(C), and seek district court review of these issuances by characterizing them as the products of “informal rule making” under 5 U.S.C. § 553. The defendants, however, seek dismissal of the complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, because 5 U.S.C. § 701(a)(2) expressly exempts from district court review those agency actions that are “committed to agency discretion by law,” and, under 5 U.S.C. § 7106(a)(1), internal security practices are so committed. Motion to Dismiss, at 18-19. More importantly, the defendants point out that 5 U.S.C. § 553(a)(2) formally exempts from any “rule making” characterization “a matter relating to agency management or personnel.” Defendants’ Reply, at 12. Realizing the patent force of the Army’s latter argument, the union argues, nonetheless, that the Directive and Interim Change constitute “final agency action” by the DOD and the Department of the Army, respectively, under 5 U.S.C. § 704, so that APA review is available in this Court. Plaintiffs’ Response, at 1-2. The plaintiffs’ Section 704 argument is appealing but flawed in two critical respects. As Section 704 makes clear, “Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” (Emphasis added.) First, as the Army correctly points out, the union points to “no other statute that both waives the government’s sovereign immunity and gives district courts jurisdiction to grant relief in cases arising in ... [this" }, { "docid": "8149056", "title": "", "text": "in section 702. Because the delay in benefits adjudication constituted neither “agency action” nor “final agency action” within the meaning of section 704, the district court ruled that section 702 did not waive sovereign immunity for the veterans’ action. The Ninth Circuit reversed; it held that the question whether section 702 waives sovereign immunity for the plaintiffs’ non-APA cause of action does not turn on whether the challenged delays constituted “agency action” or “final agency action.” Instead, the court held, the waiver of sovereign immunity applies to the plaintiffs’ request for an injunction to correct a constitutional violation even though the request for judicial review was not based on the authority granted by section 704 and did not involve “agency action,” as defined by the APA. The Commission argues that in two previous cases this court has held that the waiver of sovereign immunity in section 702 applies only to suits based on a cause of action created by the APA. In the two cited cases — Smith v. Secretary of the Army, 384 F.3d 1288 (Fed.Cir.2004), and Christopher Village, L.P. v. United States, 360 F.3d 1319 (Fed.Cir.2004) — we considered whether an APA-based action in district court is barred because the exclusive source of relief was through a suit for damages in the Court of Federal Claims. Each case held that a plaintiff cannot invoke the section 702 waiver to obtain judicial review under section 704 of the APA when Congress has provided an alternative and exclusive forum for such a dispute. However, neither case addressed the scope of Congress’s consent to suit in an equitable action not brought under the authority of the APA. The plaintiff in Smith was a retired Army physician who alleged that the Army had acted unlawfully by failing to accord him promotional credit for a masters degree. 384 F.3d at 1292. We held that his APA action against the Army could not be maintained in district court if damages and the ancillary equitable relief that was available in the Court of Federal Claims would provide an adequate remedy. Id. at 1293-94. Although we" }, { "docid": "9347877", "title": "", "text": "another statutory scheme of judicial review exists so as to preclude review under the more general provisions of the APA. Id. This inquiry differs from the exhaustion inquiry in that the focus of this inquiry is not on available administrative remedies, but on available federal court remedies. Compare Bowen, 487 U.S. at 903, 108 S.Ct. 2722 (discussing § 704’s requirement that there be no other “adequate remedy in court”) with Darby, 509 U.S. at 145-46, 113 S.Ct. 2539 (discussing § 704’s exhaustion requirement). As the INA does not specifically provide for federal court review of denials of visa petitions, there is no other adequate remedy in court that would preclude APA review. See generally, 8 U.S.C. §§ 1151-1378 (not providing for appeals to district courts from denials of immediate relative visa petitions); 8 C.F.R. §§ 1-499 (same). Thus, Mrs. Bangura states a claim under the APA based on the INS’s denial of Chisley’s petition, and the district court correctly dismissed all other APA claims. e. Merits of Plaintiffs’ APA Claims As discussed above, Plaintiffs’ can only state a claim for relief based upon the INS’s denial of Chisley’s petition, and only Mrs. Bangura has constitutional standing to challenge that decision. Thus, this Court only needs to address the merits of Mrs. Bangura’s challenge to the INS’s denial of Chisley’s petition. Because we find that the INS did not violate the APA or the INA in denying Chisley’s petition, we affirm the district court’s dismissal of Mrs. Bangura’s APA claim. i. Standard of Review under the APA The APA directs courts to review agency actions under a deferential standard. Carabell v. U.S. Army Corp. of Eng’rs, 391 F.3d 704, 707 (6th Cir.2004); Northeast Ohio Reg. Sewer Dist. v. Env’t Prot. Agency, 411 F.3d 726, 731 (6th Cir.2005). A court may not set aside or hold unlawful an agency action unless that action is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A); see also Carabell, 391 F.3d at 707; N.E. Ohio Reg. Sewer Dist., 411 F.3d at 731. An agency decision is arbitrary" }, { "docid": "6341993", "title": "", "text": "violation of the APA. See Compl. ¶¶ 49, 59 (“CCC regulations are arbitrary, capricious and an abuse of discretion”). Accordingly, the defendants’ argument that the plaintiffs are not entitled to unjust enrichment because their claim arises- out of a contract is without merit. Thus, this Court must now address whether the plaintiffs’ unjust enrichment claim is barred by the doctrine of sovereign immunity, which protects the government and its agencies from suit in the absence of its consent. Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255, 260, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999); Weinstein v. Islamic Republic of Iran, 274 F.Supp.2d 53, 56 (D.D.C.2003). The APA waives sovereign immunity by “allowing the United States to be sued in the district courts for remedies other than money damages arising from an agency’s unlawful action.” 5 U.S.C. § 702; Bublitz v. Brownlee, 309 F.Supp.2d 1, 5 (D.D.C.2004). However, there are several limitations on the APA’s sovereign immunity waiver. For example, the APA excludes: (1) claims for “money damages;” (2) claims for which an “adequate remedy” is available elsewhere; and (3) claims seeking relief “expressly or impliedly” forbidden by another statute. 5 U.S.C. § 702, § 704. The Court needs to address only the first and third limitation and it will do so below. (1) Are the Plaintiffs Seeking Monetary Relief or Money Damages? The plaintiffs claim that their unjust enrichment claim falls under the jurisdiction of the APA because they are seeking “monetary relief,” rather than “money damages,” which are forbidden by § 702 of the APA. Pis.’ Recons. Mot. at 5. The Supreme Court in Bowen v. Massachusetts, 487 U.S. 879, 895, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) defined money damages narrowly as “compensatory relief... given .to the plaintiff to substitute for a suffered loss.” Id. (emphasis in original). Such damages are not recoverable under the APA. However, the Court distinguished money damages from certain types of monetary relief it characterized as “specific relief,” which is “an attempt to give the plaintiffs] the very thing to which ,.. [they] are entitled,” and thus are recoverable under" }, { "docid": "13203935", "title": "", "text": "request in this regard is well after the two-year statute of limitations. The plaintiff does not provide the Court with any authority supporting his proposition that filing an action in the Court of Federal Claims tolls the statute of limitations. Further, the plaintiffs curt, conclusory statement that “[a]ll remaining events occurred within two years of the filing in this Court” does not refute the administrative record. The plaintiffs request for documents under the Privacy Act will therefore be dismissed. b. Exhaustion of Administrative Remedies The defendant alternatively argues that the plaintiffs Privacy Act claims should be dismissed because the plaintiff failed to exhaust his administrative remedies. Before a plaintiff can bring a civil action under the Privacy Act to amend records, he must make an amendment request to the agency in question and request an administrative review. 5 U.S.C. § 552a(d)(2)-(3); Nagel v. HEW, 725 F.2d 1438, 1441 (D.C.Cir.1984); see also Haase v. Sessions, 893 F.2d 370, 373 (D.C.Cir.1990). The Army Privacy Program requires a plaintiff to request an amendment by first applying to the custodian of the record. (Def.Ex. 4, ¶ 2-11). If the custodian does not correct the record, the request is forwarded to the designated Access and Amendment Refusal Authority (AARA) for review. Id. If the AARA declines to amend the record, the requester is informed of his right to seek further review from the Department of the Army Privacy Review Board (APRB). Id. If the APRB denies the request, it must respond with detailed reasons for denial and further notify the requester of his right to seek judicial review. Id. The Army Privacy Program also provides a procedure for a person denied access to records to seek further review of that denial. (Def.’s Ex. 4, ¶ 2-9c). The Director of the Army Board for Correction of Military Records (ABCMR) declared that under the ABCMR “[t]he Secretary of the Army or his designee, acting upon the recommendation of the ABCMR, can address plaintiffs request for relief.” (Def.’s Ex. 5, ¶2). The Director further declared that “the plaintiff has not filed an application for relief with respect to" }, { "docid": "1771004", "title": "", "text": "the First, Fourth, Fifth, Sixth, and' Ninth Amendments to the Constitution, and common law tort. Discussion 1. The Freedom of Information Act In Count One of her amended complaint, plaintiff argues that she is entitled to receive an unredacted copy of the IG report, pursuant to the FOIA, 5 U.S.C. § 552(a)(3). However, “[i]t goes without saying that exhaustion of remedies is required in FOIA cases.” Dettmann v. United States Dept. of Justice, 802 F.2d 1472, 1476 (D.C.Cir.1986); see 5 U.S.C. § 552(a)(6)(A)(i), (ii). On February 12,1981, plaintiff received part of the IG report, pursuant to the FOIA. Although the Treasury officials set forth in writing the appeal process for the FOIA, plaintiff did not administratively appeal the denial of the entire report. Additionally, plaintiff failed to pursue administrative appeals from subsequent denials of her requests. Accordingly, her FOIA claim must be dismissed. 2. The Administrative Procedure Act Plaintiff alleges that various defendants failed to follow their own regulations and failed to provide plaintiff with a hearing or any other opportunity to rebut the allegations against her in the various Government reports. She argues that such agency actions were arbitrary, capricious, an abuse of discretion, and not in accordance with law, in violation of the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Under § 704 of the APA, review is available under the APA only for final agency action “for which there is no other adequate remedy.” 5 U.S.C. § 704. It is clear that “§ 704 ‘does not provide additional judicial remedies in situations where the Congress has provided special and adequate review procedures.’ ” Bowen v. Massachusetts, 487 U.S. 879, 903, 108 S.Ct. 2722, 2736, 101 L.Ed.2d 749 (1988) (citing Attorney General’s Manual on the Administrative Procedure Act 101 (1947)). A careful reading of the amended complaint reveals that plaintiff’s APA claim is, in part, simply a restatement of her Privacy Act claims. And, to the extent that it is not, it is a claim relating to a personnel action, for which Congress has provided the Civil Service Reform Act, Pub.L. No. 95-454, 92 Stat. 1111 (codified as" }, { "docid": "23613556", "title": "", "text": "355 (1988). The only possible relief that Plaintiff could get in this case would be for the district court to order that Plaintiff’s military records be corrected and to remand the case for another review in due course by the appropriate promotion selection board. Because Plaintiff cannot receive a court-ordered retroactive promotion, there is no basis for back pay in this case and, therefore, no monetary damages on which to premise jurisdiction under the Tucker Act. Accordingly, the district court correctly concluded that the Tucker Act does not apply in this case. Since Plaintiff has no other adequate remedy in a court, review of his case is proper under the APA. B. Although the district court did not adequately articulate the basis for its jurisdiction in this case, it correctly analyzed the merits of Plaintiff’s final cause of action. The district court granted summary judgment for Defendants on Plaintiffs claim that the Army failed to follow its own regulations in reviewing his request for correction of his military records. We review a grant of summary judgment de novo, employing the same standards used by the district court. Swanson v. Faulkner, 55 F.3d 956, 964 (4th Cir.), cert. denied, — U.S. -, 116 S.Ct. 417, 133 L.Ed.2d 335 (1995). The district court’s review of the ABCMR’s decision is quite limited. As the district court properly recognized, such decisions can be set aside only “if they are arbitrary, capricious, or not based on substantial evidence.” Chappell v. Wallace, 462 U.S. 296, 303, 103 S.Ct. 2362, 2367, 76 L.Ed.2d 586 (1983); Robbins v. United States, 29 Fed. Cl. 717, 725 (1993) (“The function of the court is not to reweigh the evidence presented to the ABCMR. Rather, the court is charged with determining ‘whether the conclusion being reviewed is supported by substantial evidence.’ ”) (quoting Heisig v. United States, 719 F.2d 1153, 1157 (Fed.Cir.1983)). After carefully reviewing Plaintiffs allegations and the record below, we agree with the district court’s ruling that the facts, taken in the light most favorable to Plaintiff, cannot support a finding that the ABCMR acted arbitrarily or capriciously, or" } ]

[ { "docid": "6518589", "title": "", "text": "the insurance company was not granted discretionary authority. In address ing this narrow issue, the Perez court reasoned, [S]imply because [the company] has the ability to require written proof before continuing disability benefits does not mean that [the company] has the discretionary authority to decide whether that proof is sufficient within the meaning of the Plan. Second, simply because [the company] may require ‘satisfactory proof does not give the insurance company discretionary authority, either. The quoted Plan provision does not specify to whom the proof should be satisfactory. Perez, 96 F.3d at 826 (emphasis added). The Perez Court distinguished a number of cases relied upon by the Ninth Circuit in Snow. See Donato v. Metropolitan Life Ins. Co., 19 F.3d 375, 378-80 (7th Cir.1994) (“all proof must be satisfactory to us”) (emphasis added); Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 983-84 (6th Cir.1991) (“on the basis of medical evidence satisfactory to the Company”) (emphasis added); Bali v. Blue Cross and Blue Shield Ass’n, 873 F.2d 1043, 1047 (7th .Cir.1989) (“on the basis- of medical evidence satisfactory to the Committee”) (emphasis added), cited with approval in Snow, 87 F.3d at 330, and distinguished in Perez, 96 F.3d at 826-27. Unlike Snow and the cases cited therein, the Policy at issue here does not specify that the proof must be satisfactory, much less that the proof must be satisfactory to UNUM. UNUM contends that sufficiency of the proof is implied. However, as reasoned in Perez, the policy language is inherently ambiguous because it may create an objective standard, i.e. proof satisfactory to a reasonable person. See Perez, 96 F.3d at 825-26. The Court need not determine precisely the standard created, but merely that the language does not clearly give UNUM discretion. Although it is true that a plan need not use “magic words,” the plan must nonetheless unambiguously grant discretion for the abuse of discretion standard to apply. See Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir.1992) (abuse of discretion standard applies where plan administrator unambiguously retains power to apply discretion).The Court finds the reasoning of the Sixth" } ]

[ { "docid": "22081026", "title": "", "text": "Court in Firestone ... did not suggest that “discretionary authority” hinges on incantation of the word “discretion” or any other “magic word.” ’ ” Johnson v. Eaton Corp., 970 F.2d 1569, 1572 n. 2 (6th Cir.1992) (quoting Block v. Pitney Bowes, Inc., 952 F.2d 1450, 1453 (D.C.Cir.1992)). “Rather, the Supreme Court directed lower courts to focus on the breadth of the administrators’ power — their ‘authority to determine eligibility for benefits or to construe the terms of the plan.’ ” Block, 952 F.2d at 1453 (quoting Firestone, 489 U.S. at 115, 109 S.Ct. 948). While “magic words” are unnecessary to vest discretion in the plan administrator and trigger the arbitrary and capricious standard of review, this circuit has consistently required that a plan contain “a clear grant of discretion [to the administrator] to determine benefits or interpret the plan.” Wulf v. Quantum Chem. Corp., 26 F.3d 1368, 1373 (6th Cir.1994). See, e.g., Tiemeyer v. Community Mut. Ins. Co., 8 F.3d 1094, 1099 (6th Cir.1993) (absence of a clear grant of discretion dictates a de novo standard of review); Anderson v. Great West Life Assurance Co., 942 F.2d 392, 395 (6th Cir.1991) (same); Brown v. Ampco-Pittsburgh Corp., 876 F.2d 546, 550 (6th Cir.1989) (same). Arguing that the Plan contains the requisite clear grant of discretion to the plan administrator, Aetna points to the following Plan language: Written proof of total disability must be furnished to [Aetna] within ninety days after the expiration of the [first twelve months of disability]. Subsequent written proof of the continuance of such disability must be furnished to [Aetna] at such intervals as [Aetna] may reasonably require. ... [Aetna] shall have the right to require as part of the proof of claim satisfactory evidence ... that [the claimant] has furnished all required proofs for such benefits. ... J.A. at 32 (emphasis added). Perez counters that this language does not constitute a clear grant of discretion because it does not specify to whom the written proof of disability must be satisfactory. Both parties agree, however, that the locus of any discretion lies in the final sentence of the" }, { "docid": "23155363", "title": "", "text": "the reviewing court determines whether a denial of benefits was an abuse of discretion). No specific phrases or terms are required in a plan to preclude a de novo standard of review. Feder, 228 F.3d at 522 (\"[I]f the terms of a plan indicate a clear intention to delegate final authority to determine eligibility to the plan administrator, then this Court will recognize discretionary authority by implication.\"). The plan's intention to confer discretion on the plan administrator or fiduciary, however, must be clear. Sandy v. Reliance Standard Life Ins. Co., 222 F.3d 1202, 1207 (9th Cir.2000) (\"Nei ther the parties nor the courts should have to divine whether discretion is conferred.”). If a plan does not clearly grant discretion, the standard of review is de novo. Feder, 228 F.3d at 524. Any ambiguity in an ERISA plan “is construed against the drafter of the plan, and it is construed in accordance with the reasonable expectations of the insured.” Bynum v. Cigna Healthcare, Inc., 287 F.3d 305, 313-14 (4th Cir.2002). Of course, because de novo review is more rigorous, if a reviewing court upholds a benefits decision under de novo review, it also would uphold it under a deferential standard. Feder, 228 F.3d at 522 (explaining that under the deferential standard, the reviewing court should uphold an administrator’s decision if it is reasonable, even if the court would have reached a different conclusion). With these principles in mind, we must determine whether the following language in the plan grants Rebanee discretion to determine Gallagher’s ehgibility for benefits: “We will pay a Monthly Benefit if the Insured ... submits satisfactory proof of Total Disability to us.” (J.A. at 89.) There are two possible ways to interpret this language: (1) that Gallagher must submit to Reliance satisfactory proof of his disabibty or (2) that he must submit proof of his disability that is satisfactory to Reliance. The former interpretation would require Gallagher to submit to Reliance proof of a total disability that is objectively satisfactory; to determine whether Gallagher met this objective standard, we would review Rehance’s denial of his claim de novo." }, { "docid": "6518590", "title": "", "text": "medical evidence satisfactory to the Committee”) (emphasis added), cited with approval in Snow, 87 F.3d at 330, and distinguished in Perez, 96 F.3d at 826-27. Unlike Snow and the cases cited therein, the Policy at issue here does not specify that the proof must be satisfactory, much less that the proof must be satisfactory to UNUM. UNUM contends that sufficiency of the proof is implied. However, as reasoned in Perez, the policy language is inherently ambiguous because it may create an objective standard, i.e. proof satisfactory to a reasonable person. See Perez, 96 F.3d at 825-26. The Court need not determine precisely the standard created, but merely that the language does not clearly give UNUM discretion. Although it is true that a plan need not use “magic words,” the plan must nonetheless unambiguously grant discretion for the abuse of discretion standard to apply. See Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir.1992) (abuse of discretion standard applies where plan administrator unambiguously retains power to apply discretion).The Court finds the reasoning of the Sixth Circuit in Perez to be persuasive and concludes that the Policy does not grant UNUM discretionary authority. Accordingly, the Court holds that the de novo standard of review applies and grants partial summary judgment in Plaintiffs favor sua sponte. B. Record on Review Under the de novo standard, review is generally limited to the administrative record. The court may, in its discretion, consider additional evidence not before the administrator. Such discretion should be exercised, however, “only when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision.” Mongeluzo v. Baxter Travenol Long Term Disability Ben. Plan, 46 F.3d 938, 944 (9th Cir.1995). The Court finds that issues of fact remain regarding whether evidence outside the administrative record must be considered in order to conduct an adequate de novo review. In addition, the Court makes no determination whether the record submitted by UNUM in support of its motion is in fact the complete administrative record. Plaintiff is entitled to an opportunity to determine by limited discovery whether" }, { "docid": "22161510", "title": "", "text": "decisions and not all; and having thoroughly reviewed the Plan, we find that the language in the Plan grants the Plan Administrator discretion to determine eligibility for disability retirement benefits. Williams misconstrues the unambiguous language of the Plan. When interpreting ERISA plan provisions, general principles of contract law dictate that we interpret the provisions according to their plain meaning in an ordinary and popular sense. See Perez v. Aetna Life Ins. Co., 150 F.3d 550, 556 (6th Cir.1998). In applying the “plain meaning” analysis, we “must give effect to the unambiguous terms of an ERISA plan.” Id. (quoting Lake v. Metropolitan Life Ins. Co., 73 F.3d 1372, 1379 (6th Cir.1996)). Reading the language in an ordinary and popular sense, the Plan clearly gives the Plan Administrator authority to determine eligibility for disability benefits inasmuch as the Plan Administrator must “find that the Disability is likely to be permanent during the remainder of the Participant’s life.” (J.A. at 120). Moreover, we have held in similar cases that the plan administrator has discretionary authority. See Perez, 150 F.3d at 557 (claimant must provide “satisfactory evidence” as part of proof of claim); Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 380-81 (6th Cir.1996) (claimant must submit “satisfactory proof of Total Disability to us”); Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 983 (6th Cir.1991) (disability determined “on basis of medical evidence satisfactory to the Insurance Company”). Contrary to Williams’ proposition, the requirement of a physician certifying that a participant is disabled does not dilute the discretionary authority of the Plan Administrator to determine eligibility. Accordingly, we hold that the district court was proper in applying the arbitrary and capricious standard of review. B. Having determined the appropriate standard of review, we now address whether the Plan Administrator acted arbitrarily and capriciously in this case. This Court has noted that the arbitrary and capricious standard is the least demanding form of judicial review of administrative action. See Davis v. Kentucky Fin. Cos. Retirement Plan, 887 F.2d 689, 693 (6th Cir.1989). When applying the arbitrary and capricious standard, the Court must decide" }, { "docid": "22081035", "title": "", "text": "that discretion to determine eligibility benefits had not been clearly granted to the plan administrator. Id. Although the panel in Yeager noted that “the Plan language could have been clearer,” it held that “[t]he mere fact that language could have been clearer does not necessarily mean that it is not clear enough.” Id. The panel in Yeager reached the only reasonable interpretation of the language at issue in that ease when the panel concluded that “it would not be rational to think that the proof would be required to be satisfactory to anyone other than [the insurance company].” This case presents an issue identical to the one presented in Yeager. In reaching the same conclusion as the panel in Yeager, we reaffirm that decision today. Given that the Plan clearly grants Aetna discretion to make benefits determinations, we have no occasion to reach the second en banc issue; whether the de novo standard of review announced in Firestone applies to the factual determinations made by Aetna. Y. CONCLUSION The prior panel in this case reviewed Aet-na’s decision to terminate benefits under the de novo standard of review. Today we hold that the arbitrary and capricious standard should have been applied. Accordingly, we remand the ease to the original panel to review Aetna’s decision to terminate benefits under the arbitrary and capricious standard. . In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the United States Supreme Court held that \"a denial of benefits challenged under [ERISA] § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority....” Id. at 115, 109 S.Ct. 948. . Since Firestone was decided, the federal courts of appeals have disagreed on whether the de novo standard of review applies to both plan interpretation and fact determinations made by a plan administrator or is limited only to plan interpretation. Compare Pierre v. Connecticut Gen. Life Ins. Co., 932 F.2d 1552, 1559 (5th Cir.1991) (practical considerations dictate that the de novo standard applies only to plan interpretation" }, { "docid": "5743082", "title": "", "text": "§ 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.’ ” Kearney, 175 F.3d at 1089 (quoting Firestone, 489 U.S. at 115, 109 S.Ct. 948) (alteration in original). As we explained, “[t]hat means the default is that the administrator has no discretion, and the administrator has to show that the plan gives it discretionary authority in order to get any judicial deference to its decision.” Kearney, 175 F.3d at 1089. The Plan at issue in Kearney stated that Standard, the Plan Administrator, would pay disability benefits “upon receipt of satisfactory written proof that you have become DISABLED.” Standard argued that the word “satisfactory” implied discretion, but we held that it did not because the phrase is ambiguous. “Only by excluding alternative readings as unreasonable could we conclude that the conferral of discretion is unambiguous.” Kearney, 175 F.3d at 1090. Thus, a plan will not sufficiently confer discretion sufficient to invoke review for abuse of discretion just because it includes a discretionary element. Rather, the power to apply that element must also be “unambiguously retained” by the administrator. Id. (quoting Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir.1992), cert. denied, 507 U.S. 1031, 113 S.Ct. 1847, 123 L.Ed.2d 471 (1993)). Rebanee argues that its “satisfactory proof’ language is different from Standard’s in Kearney, and it is — but not meaningfully so. No matter how you slice it, requiring a claimant to submit “satisfactory proof’ does not unambiguously confer discretion under Kearney. See also Newcomb v. Standard Ins. Co., 187 F.3d 1004, 1006 (9th Cir.1999) (provision requiring “satisfactory written proof of loss” controlled by Kearney; and language providing that claimant must submit “written authorization for STANDARD to obtain the records and information needed to determine eligibility for LTD BENEFITS” does not unambiguously retain discretion because the primary function of this provision was to inform the claimant that he had to provide authorization, not to confer discretion). Nor, under Kearney, is discretion conferred by way of" }, { "docid": "22081041", "title": "", "text": "in this ease carefully and correctly sets out the basic tenets of the law concerning the standard of review for decisions by the administrator of an ERISA plan to deny benefits to a claimant. Fires-iowerequires that there be a grant of discretion to the administrator before such decision will be given the deference of the “arbitrary and capricious” standard of review. See Majority Opinion at 552 n. 1 (citing Firestone, 489 U.S. at 115, 109 S.Ct. 948). Otherwise, “de novo ” review applies. Ibid. Under our decisions, that grant must be “clear.” See ibid, at 555-556 (citing Wulf v. Quantum Chem. Corp., 26 F.3d 1368, 1373 (6th Cir.1994); Tiemeyer v. Community Mut. Ins. Co., 8 F.3d 1094, 1099 (6th Cir.1993)). The majority also correctly notes that when the language of the plan clearly gives discretionary decision-making power to the administrator, courts have upheld such language. See Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 983 (6th Cir.1991) (“evidence satisfactory to the Insurance Company”); Donato v. Metropolitan Life Ins. Co., 19 F.3d 375, 379 (7th Cir.1994) (“satisfactory to us”). Where the majority goes astray is in holding that the language in our plan is “similar” to such language, and thus is governed by the same principles. The court’s opinion correctly concedes that the two types of language are dissimilar in a very impor tant grammatical respect. One specifies to whom the proof must be satisfactory; the other does not. As the opinion notes, Aet-na’s language in our case lacks the crucial “indirect object.” See Majority Opinion at 556, 557-558. The court’s opinion also (perhaps over-generously ) seems to concede that the eases finding discretion that it cites, see Majority Opinion at 555-556, all required the proof to be satisfactory to the administrator, and thus considers our case, in which no decision-maker is specified, as largely one of first impression. The court errs in deciding that we may simply assume that the plan must mean that the proof is “satisfactory” to the administrator, for that is the only entity which could be the intended decision-maker. To me the difference between these" }, { "docid": "11163931", "title": "", "text": "better, and, in fact, that seemed to be the case. I last saw Mr. Walke on April 26, 1995. At that time he was doing reasonably well. I cannot really comment on what has happened since that time. After reviewing this submission, Reliance reaffirmed its benefits denial because Walke “is no longer disabled from a cardiac standpoint and is not under the care of any ... physician for cardiac or a stress related condition.” This lawsuit followed. II. The ERISA Standard of Review. In reviewing the denial of benefits by an ERISA plan administrator, the reviewing court applies an abuse-of-discretion standard when the plan gives the administrator discretion to determine eligibility for benefits and to construe the terms of the plan. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Here, the district court applied the abuse-of-discretion standard. Walke contends the court should have applied the de novo standard of review. We review this issue de novo. Barnhart v. UNUM Life Ins. Co. of Am., 179 F.3d 583, 587 (8th Cir.1999). In this circuit, when an insurance policy is the ERISA plan, the abuse-of-discretion standard applies only if the policy contains “explicit discretion-granting language.” Bounds v. Bell Atlantic Enter. F.L.T.D. Plan, 32 F.3d 337, 339 (8th Cir.1994). As Judge Posner explained in Herzberger v. Standard Insurance Co., 205 F.3d 327, 332 (7th Cir.2000), a policy claim provision stating that “the plan administrator will not pay benefits until he receives satisfactory proof of entitlement ... states the obvious, echoing standard language in insurance contracts not thought to confer any discretionary powers on the insurer.” We made the same point in Ravenscraft v. Hy-Vee Employee Benefit Plan & Trust, 85 F.3d 398, 402 n. 2 (8th Cir.1996), when we noted that the claim provisions of a typical insurance policy “do not trigger the deferential ERISA standard of review.” Here, the Reliance policy provides that the Plan will pay benefits if the insured “submits satisfactory proof of Total Disability to us.” If the words “to us” were omitted, the provision would be no different" }, { "docid": "2807501", "title": "", "text": "be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits [fact-finding] or to construe the terms of the plan [plan interpretation].” Bruch, 489 U.S. at 115, 109 S.Ct. at 956-57. V. THE PLAN DOES NOT GIVE AETNA DISCRETIONARY AUTHORITY Perhaps recognizing the problems with its reliance on Pierre, Aetna argues that it has been explicitly given discretionary authority in the Plan to make benefits determinations. To support this claim, Aetna points to the following language in the Plan: “[subsequent written proof of the continuance of such disability must be furnished to [Aetna] at such intervals as [Aetna] may reasonably require .... [Aetna] shall have the right to require as part of the proof of claim satisfactory evidence ... (2) that [the claimant] has furnished all required proofs for such benefits.” It is true that “[t]he Court in Firestone [v. Bruch ] surely did not suggest that ‘discretionary authority' hinges on incantation of the word ‘discretion’ or any other ‘magic word.’ Rather, the Supreme Court directed lower courts to focus on the breadth of the administrators’ power — their ‘authority to determine eligibility for benefits or to construe the terms of the plan.’” Block v. Pitney Bowes, Inc., 952 F.2d 1450, 1458 (D.C.Cir.1992) (quoting Bruch, 489 U.S. at 115, 109 S.Ct. at 956-57). However, the plain meaning of the provisions Aetna cites from the Plan does not give it discretionary authority. First, simply because Aetna has the ability to require written proof before continuing disability benefits does not mean that Aetna has the discretionary authority to decide whether that proof is sufficient within the meaning of the Plan. Second, simply because Aetna may require “satisfactory proof’ does not give the insurance company discretionary authority, either. The quoted Plan provision does not specify to whom the proof should be satisfactory. Perez is probably correct in arguing that this language creates an objective standard — proof “satisfactory” to a reasonable person. But all we need decide at this point is that the language does not clearly give Aetna discretion, which" }, { "docid": "21669376", "title": "", "text": "Decker’s arbitrary rejection of these opinions constitutes material, probative evidence that it was operating under an actual conflict. Nord further argues that, because Black & Decker was operating under a conflict of interest, the district court should have reviewed the administrator’s decision de novo. The standard of judicial review for a disability determination by an insurer covered under ERISA varies depending on the plan language. We review de novo the decision of a plan administrator to deny benefits “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); see also Tremain v. Bell Indus., Inc., 196 F.3d 970, 976 (9th Cir.1999). The plan language must be explicit. See Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999) (en banc) (holding that plan language stating that the insurer will pay benefits “upon receipt of satisfactory written proof’ of disability was ambiguous, and thus did not confer discretion). When the plan language confers discretion, we review the decision of the plan administrator under an abuse of discretion standard. Tremain, 196 F.3d at 976. In this case, the plan language clearly confers discretion upon the Plan Manager both to determine benefits eligibility and to interpret the terms of the Plan. However, the fact that the terms of the Plan confer broad discretionary authority upon the plan administrator does not end our inquiry into the proper standard of review. An insurer with a “dual role as the administrator and funding source for the [p]lan” has an inherent conflict of interest. Lang, 125 F.3d at 797. In Firestone Tire & Rubber Co., the Supreme Court stated that “if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a facto [r] in determining whether there is an abuse of discretion.” 489 U.S. at 115, 109 S.Ct. 948 (internal quotation marks omitted). We have held that our review" }, { "docid": "9508614", "title": "", "text": "Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir.1992) (quoting Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). 2. Analysis The legal issue before the Court involves rights under an Employee Welfare Benefit Plan regulated by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1002-1461. Denial of benefits under an ERISA plan is reviewed de novo “unless the benefit plan gives the administrator or fiduciary discretionaiy authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80 (1989). In the exceptional case where the plan clearly confers discretion, the determination is reviewed using an “arbitrary and capricious” standard. Anderson v. Great West Life Assurance Co., 942 F.2d 392, 394 (6th Cir.1991). Where proof of eligibility for benefits must be “satisfactory” to the company, courts have characterized the company’s authority as discretionary within the meaning of Bruch. See, e.g., Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 983-84 (6th Cir.1991); Bali v. Blue Cross and Blue Shield Ass’n, 873 F.2d 1043, 1047 (7th Cir.1989). However, the issue of discretion and its interplay with language requiring “satisfactory proof’ is pending before the Sixth Circuit in the case of Perez v. Aetna Life Ins. Co., 96 F.3d 813 (6th Cir.1996), reh. en banc granted and judgment vacated, 106 F.3d 146 (6th Cir.1997). To date, where the grant of discretion on a given decision in the plan is clear, the “arbitrary and capricious” standard applies. Anderson, 942 F.2d at 394. Under this standard, reversal is required only if the decision was in bad faith, not supported by substantial evidence, or is erroneous on a question of law. Nevill v. Shell Oil Co., 835 F.2d 209, 212 (9th Cir.1987). In the instant case, the policy provides that the proof of claim presented by the beneficiary must be “satisfactory to Sun Life.” (Stipulated Facts, Ex. 1 at 34.) Depending upon the Sixth Circuit’s resolution in" }, { "docid": "3813617", "title": "", "text": "denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Under Bruch, plenary review is the default standard. We have held that plenary review is required when the plan documents contain no indication of the scope of judicial review, because “it is a natural and modest extension of Bruch, or perhaps merely a spelling out of an implication of it, to construe uncertain language concerning the scope of judicial review as favoring plenary review as well.” Herzberger v. Standard Ins. Co., 205 F.3d 327, 330 (7th Cir.2000). If a plan “is going to reserve a broad, unchanneled discretion to deny claims, [plan participants] should be told this, and told clearly.” Id. at 333. To decide whether a plan confers discretion on the administrator, as Bruch and Herzberger use the term, we review the language of the plan de novo as we would review the language of any contract. Ramsey v. Hercules Inc., 77 F.3d 199, 205 (7th Cir.1996). Herzberger holds that the critical question is notice: participants must be able to tell from the plan’s language whether the plan is one that reserves discretion for the administrator. We concluded that: [the] mere fact that a plan requires a determination of eligibility or entitlement by the administrator, or requires proof or satisfactory proof of the applicant’s claim, or requires both a determination and proof (or satisfactory proof), does not give the employee adequate notice that the plan administrator is to make a judgment largely insulated from judicial review by reason of being discretionary. Herzberger, 205 F.3d at 332. The reason for this rule is a practical one. All plans require an administrator first to determine whether a participant is entitled to benefits before paying them; the alternative would be to hand money out every time someone knocked on the door, which is obviously out" }, { "docid": "2807502", "title": "", "text": "Supreme Court directed lower courts to focus on the breadth of the administrators’ power — their ‘authority to determine eligibility for benefits or to construe the terms of the plan.’” Block v. Pitney Bowes, Inc., 952 F.2d 1450, 1458 (D.C.Cir.1992) (quoting Bruch, 489 U.S. at 115, 109 S.Ct. at 956-57). However, the plain meaning of the provisions Aetna cites from the Plan does not give it discretionary authority. First, simply because Aetna has the ability to require written proof before continuing disability benefits does not mean that Aetna has the discretionary authority to decide whether that proof is sufficient within the meaning of the Plan. Second, simply because Aetna may require “satisfactory proof’ does not give the insurance company discretionary authority, either. The quoted Plan provision does not specify to whom the proof should be satisfactory. Perez is probably correct in arguing that this language creates an objective standard — proof “satisfactory” to a reasonable person. But all we need decide at this point is that the language does not clearly give Aetna discretion, which is what the language of an ERISA plan must do under Bruch to trigger abuse of discretion review. To overcome this commensensical conclusion, Aetna cites a number of cases, all of which are distinguishable. See Donato v. Metropolitan Life Ins. Co., 19 F.3d 375, 379-80 (7th Cir.1994) (“all proof must be satisfactory to us”); Wildbur v. ARCO Chem. Co., 974 F.2d 631, 637 (5th Cir.1992) (plan allowed administrator to “make an independent determination of the applicant’s eligibility for benefits under the Plan” and noted that the administrator’s decision “shall be final and conclusive upon all persons.... ”); Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 983 (6th Cir.1991) (plan used the phrase “on the basis of medical evidence satisfactory to the Company”); Sisters of the Third Order of St. Francis v. SwedishAmerican Group Health Benefit Trust, 901 F.2d 1369, 1371 (7th Cir.1990) (plan gave committee power to “construe and interpret the Plan [and] decide all questions of eligibility”) ; Davis, 887 F.2d at 694 (plan used the phrase “[i]n case of any factual dispute" }, { "docid": "23512240", "title": "", "text": "827 (1st Cir.1997)). While the choice of standards is clear-cut, there remains considerable debate over what language constitutes a sufficiently clear grant of discretionary authority to transform judicial review from de novo to deferential. In Herzberger v. Standard Ins. Co., 205 F.3d 327, 331 (7th Cir.2000), Chief Judge Posner proposed model “safe harbor” language for inclusion in ERISA plans that could leave no doubt about the administrator’s discretion: “ ‘Benefits under this plan will be paid only if the plan administrator decides in his discretion that the applicant is entitled to them.’ ” We wholly endorse this proposal. We recognize, however, that “courts have consistently held that there are no ‘magic words’ determining the scope of judicial review of decisions to deny benefits,” id., and until wording such as that suggested by Judge Posner becomes standard, we must in fairness carefully consider existing language that falls short of that ideal. Accord Herzberger, 205 F.3d at 331 (declining to make proposed language mandatory and accepting as sufficient, if minimum, a less explicit standard, see infra at 19). According to the Sun Life policy, the insurer “may require proof in connection with the terms or benefits of [the] Policy.” It further states: “If proof is required, we must be provided with such evidence satisfactory to us as we may reasonably require under the circumstances” (emphasis added). Circuits that have considered similar language view the “to us” after “satisfactory” as an indicator of subjective, discretionary authority on the part of the administrator, distinguishing such phrasing from policies that simply require “satisfactory proof’ of disability, without specifying who must be satisfied. See Nance v. Sun Life Assur. Co. of Canada, 294 F.3d 1263, 1267-68 (10th Cir.2002) (“‘Satisfactory to Sun Life’ ... adequately conveys to the Plan participants and beneficiaries that the evidence of disability must be persuasive to Sun Life.”); Ferrari v. Teachers Ins. and Annuity Ass’n, 278 F.3d 801, 806 (8th Cir.2002) (describing plan as stating that “proof must be satisfactory to [the administrator]”); Herzberger, 205 F.3d at 331 (describing the “satisfactory to us” language in Donato v. Metropolitan Life Ins. Co., 19" }, { "docid": "3813623", "title": "", "text": "Bruch demands. See, e.g., Brigham v. Sun Life of Canada, 317 F.3d 72, 81 (1st Cir.2003) (“Circuits that have considered similar language view the ‘to us’ after ‘satisfactory’ as an indicator of subjective, discretionary authority on the part of the administrator, distinguishing such phrasing from policies that simply require ‘satisfactory proof of disability without specifying who must be satisfied”); Ferrari v. Teachers Ins. and Annuity Ass’n, 278 F.3d 801, 806 (8th Cir.2002) (finding a plan to confer sufficient discretion because it “specifies that the employee must provide written proof of continued total disability” and “that such proof must be satisfactory to [the plan administrator]”); Nance v. Sun Life Assur. Co., 294 F.3d 1263, 1267-68 (10th Cir.2002) (“ ‘Satisfactory to Sun Life’ ... adequately conveys to the Plan participants and beneficiaries that the evidence of disability must be persuasive to Sun Life.”). Donato and Bali are not, however, the last word on the subject from this court. As we have already noted, Herzberger took a significantly different approach when it held that a requirement that the administrator determine eligibility, or that proof or satisfactory proof must be tendered before benefits will be given, does not give the employee adequate notice that “the plan administrator is to make a judgment largely insulated from judicial review by reason of being discretionary.” 205 F.3d at 332. Although we did not circulate Herzberger to the full court under Circuit Rule 40(e), subsequent developments, including this case, persuade us that we should now clarify the test we are using to decide whether de novo review or deferential review is proper. Herzberger, we conclude, adopts the preferable approach. There is a substantive difference between plans without discretion, for which the standard of review is de novo under Bruch, and those with discretion, for which review is deferential. The former plans reflect the fact that the applicant must meet the prescribed requirements of the plan, through appropriate evidence. (Juries or judges deciding whether a contract has been breached have the same task: they must evaluate the evidence to see if the plaintiff should prevail, but they cannot rewrite" }, { "docid": "7792924", "title": "", "text": "Cir.2002); see also Dang v. UNUM Life Ins. Co. of Am., 175 F.3d 1186, 1189 (10th Cir.1999) (“We review the district court’s decisions on questions of law ... de novo.”) A Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), sets forth the appropriate standard of review in actions challenging the denial of benefits under an ERISA plan: “[A] denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” When an ERISA plan gives the administrator discretionary powers, the district court reviews the administrator’s decisions under an arbitrary and capricious standard. See, e.g., Pitman v. Blue Cross & Blue Shield of Okla., 217 F.3d 1291, 1295 (10th Cir.2000); Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 380 (10th Cir.1992). Thus, only if the Plan confers discretion on UNUM either to interpret the terms of the Plan or find facts relating to a claimant’s disability is an arbitrary and capricious standard of review appropriate under Firestone. The district court employed the arbitrary and capricious standard in its review of UNUM’s decision but unfortunately did not shed light on where in the Plan it found UNUM’s discretionary powers. Our recent decision in Nance v. Sun Life Assurance Co. of Can., 294 F.3d 1263 (10th Cir.2002), handed down after the filing of appeal briefs in the present case, clarifies what language confers discretion on a plan administrator. In Nance, we distinguished plan terms that require submission of “satisfactory proof’ from those that require submission of “proof satisfactory to [plan administrator].” Id. at 1267-68 (emphasis added). We held that language requiring proof “satisfactory to [plan administrator] suffices to convey discretion to a plan administrator.” Id. at 1268. On the other hand, requiring satisfactory proof alone, without specifying who must be satisfied, does not vest a plan administrator with discretion. Rather, it merely indicates that proof of disability must satisfy some objective criteria." }, { "docid": "23155365", "title": "", "text": "Feder, 228 F.3d at 523 (requirement that claimant submit written proof of disability and “proof to verify the continuance of any disability” establishes an objective standard); see also Herzberger v. Standard Ins. Co., 205 F.3d 327, 332 (7th Cir.2000) (explaining that merely requiring claimant to submit proof or satisfactory proof does not create a subjective standard). The latter interpretation, however, would require Gallagher to submit to Reliance proof of a total disability that Reliance finds subjectively satisfactory; to determine whether Gabagher met this subjective standard, we would review Rehance’s denial of his claim for abuse of discretion. Bernstein v. CapitalCare Inc., 70 F.3d 783, 788 (4th Cir.1995) (concluding that an agreement gave discretion to the administrator because it provided that benefits would be paid out only if the administrator determined that certain conditions are met). We conclude that the language of the Plan does not grant Reliance discretionary authority. First, as noted above, a grant of discretion must be clear. Sandy, 222 F.3d at 1204 (“No matter how you slice it, requiring a claimant to submit ‘satisfactory proof does not unambiguously confer discretion ....”); see also Perugini-Christen v. Homestead Mortgage Co., 287 F.3d 624, 626 (7th Cir.2002) (“Because it is not clear from the plain language which interpretation is the correct one, ... Rebanee failed to reserve discretionary authority.”); Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 252 (2d Cir.1999) (“[T]he needless ambiguity in the wording of the policy should be resolved against First Reliance.”). Second, an insured employee reading this language would most likely interpret “to us” as an indication of where to submit the proof, not as granting Reliance discretion to determine whether the proof was satisfactory. The prepositional phrase “to us,” as written in the Plan, is more naturally read as modifying “submit” rather than “satisfactory.” Accordingly, we hold that the proper standard of review of Reliance’s denial of Gallagher’s claim for benefits is de novo, and we must next determine whether the proof of total disability he submitted to Reliance was objectively satisfactory. III. A. Under the Plan, an insured employee is totally" }, { "docid": "23121219", "title": "", "text": "district court’s determination regarding the proper standard to apply in its review of a plan administrator’s decision de novo. See Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 380 (6th Cir.1996). In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court stated that an administrator’s decision to deny benefits is reviewed under a de novo standard unless the plan provides the administrator with “discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” This does not mean, however, that in order to find such authority the plan must use the term “discretionary” or some other specific terminology. See Johnson v. Eaton Corp., 970 F.2d 1569, 1572 n. 2 (6th Cir.1992). Instead, this circuit has consistently required that a plan contain “a clear grant of discretion [to the administrator].” Wulf v. Quantum Chem. Corp., 26 F.3d 1368, 1373 (6th Cir.1994). Based on this court’s decision in Perez v. Aetna Life Ins. Co., 150 F.3d 550 (6th Cir.1998), and its citation to Bollenbacher v. Helena Chem. Co., 926 F.Supp. 781 (N.D.Ind.1996), the district court concluded that because the policies required written proof of loss, Provident implicitly was granted the discretion to review that proof and determine whether the insured qualified for disability benefits. In the Perez case, this court concluded that the administrator had discretion to determine eligibility and construe plan terms based on the following language: “[The administrator] shall have the right to require as part of the proof of claim satisfactory evidence ... that [the claimant] has furnished all required proofs of such benefits.” Id. at 555. The Perez court reasoned that the “plan clearly grants discretion to [the administrator] be cause, under the only reasonable interpretation of the language, [the administrator] retains the authority to determine whether the submitted proof of disability is satisfactory.” Id. at 557. The district court held that although the plan did not expressly grant discretion to Provident in determining benefits, the language nevertheless vested discretion in Provident to assess the submitted proof and determine the" }, { "docid": "16452980", "title": "", "text": "is generally used to provide information to the purchasing employer and not to employees. In Herzberger v. Standard Insurance Co., 205 F.3d 327 (7th Cir.2000), the Seventh Circuit held that a plan that did not give an employee adequate notice of the fact that the plan administrator’s discretion authorized it to make judgments largely insulated from judicial review was not entitled to the more deferential standard of review. Herzberger, however, involved a plan whose terms did not explicitly create discretionary authority; instead, the defendant in Herzberger attempted to show that the plan provided for discretion by implication. See, e.g., Feder v. Paul Revere Life Ins. Co., 228 F.3d 518, 523 (4th Cir.2000) (“We have not, however, always required an explicit grant of discretionary authority. Rather, we have recognized that a plan’s terms can create discretion by implication.”). What was deemed by the Seventh Circuit as providing inadequate notice was “the mere fact that a plan requires a determination of eligibility or entitlement by the administrator, or requires proof or satisfactory proof of the applicant’s claim, or requires both a determination and a proof (or satisfactory proof)”. Herzberger, 205 F.3d at 332. Where, as in the present case, the plan language explicitly creates discretionary authority, the question of whether adequate notice was provided to the employee is not relevant. See Feder, 228 F.3d at 522 (“We will find discretionary authority in the administrator if the plan’s language expressly creates discretionary authority.”). Plaintiff also contends that, because UNUM benefitted from its decision to terminate plaintiffs benefits, the potential conflict of interest involved in UNUM’s decision requires the court to review that decision de novo. The mere presence of a potential conflict of interest, however, does not automatically activate de novo review. As the court stated in Hamilton v. AIG Life Insurance Co., 182 F.Supp.2d 39 (D.D.C.2002), “[wjhile recognizing the presence of a potential conflict, in obeisance to Firestone, the court reviews [the insurer’s] decision for abuse of discretion.” Id. at 44. Although different circuits employ different methods for applying the standard of review when a potential conflict of interest exists, the D.C." }, { "docid": "23434457", "title": "", "text": "Abnathya v. HoffmannLa Roche, Inc., 2 F.3d 40, 45 (3d Cir. 1993)). In determining whether an administrator abused its discretion, we must consider any structural conflict of interest as one of several factors. Estate of Schwing v. The Lilly Health Plan, 562 F.3d 522, 526 (3d Cir.2009). In contrast, if we exercise de novo review, the role of the court “is to determine whether the administrator ... made a correct decision.” Hoover v. Provident Life & Accident Ins. Co., 290 F.3d 801, 808-09 (6th Cir.2002) (alteration in original) (quoting Perry v. Simplicity Eng’g, 900 F.2d 963, 965 (6th Cir.1990)). “The administrator’s decision is accorded no deference or presumption of correctness.” Id. at 809. The court must review the record and “determine whether the administrator properly interpreted the plan and whether the insured was entitled to benefits under the plan.” Id. The relevant language at issue in the Policy is the “Proof of Loss” provision, which provides: “Written or authorized electronic proof of loss satisfactory to Us must be given to Us at Our office, within 90 days of the loss for which claim is made.” (App. at 85) (emphasis added). LINA argues that this language confers discretion upon them because they have expressly reserved the right to decide whether the proof of loss is satisfactory to them. Plaintiff argues that the language does not expressly and unambiguously confer discretion. Specifically, Plaintiff argues that the language can be interpreted in several different ways. Plaintiff argues that the alleged ambiguity should be resolved in her favor and de novo review should apply. The District Court rejected Plaintiffs argument and held that the “relevant policy language presents a clear grant of discretionary authority to LINA in deciding whether sufficient proof to support a claim has been submitted to shift the Court’s review from de novo to the deferential abuse of discretion standard.” Viera v. Life Ins. Co. of N. Am., 2010 WL 1407312, at *5 (E.D.Pa. Apr. 6, 2010). We disagree. To begin with, we distinguish the language at issue here — in particular, the words “proof of loss satisfactory to Us”— from" } ]

[ { "docid": "15481743", "title": "", "text": "motion to dismiss the information. United States v. Cleveland, 503 F.2d 1067 (9th Cir.), was cited by defendant as authority for his position. The Government replied to the motion by asserting that 18 U.S.C. § 1153 was constitutional as applied to defendant. Also it urged that if it was not, the court could disregard the charge insofar as it was based on that section, and proceed under an amended information, then offered, based on 18 U.S.C. § 113(c). The trial judge refused to hear defendant’s motion before trial began, and directed the Government to proceed with the trial. The jury was impaneled and sworn, and the Government called witnesses to prove that defendant had attacked his sister by striking her in the forehead with his fist and by stabbing her in the stomach with a file. The incident was described and a doctor testified as to the wound caused by the file. The Government then rested, and the trial judge, after excusing the jury, heard arguments on the motion of defendant to dismiss. The trial judge granted the motion and thereafter entered a “judgment of acquittal.” The reason for the granting of the motion to dismiss during the course of trial had no connection with, nor was it based on the facts developed to that point in the trial. There was no factual determination made before or in the granting of the motion, thus in reality it was a dismissal of the information on constitutional grounds. The ruling came after the trial began because the court had refused to hear the motions before trial as required by Rule 12, Fed.R. Crim.P., in the absence of any showing or reference in any manner whatever to good cause for deferring a consideration and ruling. We must take notice of the practice of this trial judge to hear pretrial motions after the jury has been sworn. We have considered several previous instances where this has been done, and there are references in the records to show that this is done to prevent appeals by the Government of rulings on such motions. See United" } ]

[ { "docid": "22717809", "title": "", "text": "Oppenheimer, the motion in bar in the second proceeding rested on an earlier pretrial motion based on the statute of limitations; the theory of the second plea ivas res judieata. Appellee points out that Rule 12 (b)(1) of the Federal Rules of Criminal Procedure permits the defendant to raise the defense of former jeopardy on motion before or after the impaneling of the jury. See Notes of the Advisory Committee, 8 J. Moore, Federal Practice ¶ 12.01 [2] (2d ed. 1970). Thus, it is suggested that the defendant may deprive the Government of its appeal simply by delaying his motion to dismiss until the jury has been impaneled. This' problem, of course,1 is inherent in the structure of the Criminal Appeals Act prior' to amendment; for example, the defendant under Rule 12 (b) (1) may also delay his statute of limitations plea until after the impaneling of the jury, see ibid., thereby depriving the Government of its § 3731 appeal to this Court. Soon after the passage of the original Act, the Attorney General recognized the problem and proposed that the Act be amended to require'counsel for the defendant to raise and argue such questions before jeopardy attaches. See Sisson, supra, at 305-306. A recently enacted amendment to the Criminal Appeals Act undertakes to. deal with the problem by allowing the Government to appeal “to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.” Omnibus Crime-Control Act of 1970, § 14 (a) (1), 84 Stat. 1890 (January 2, 1971). However, the amend ment is not applicable -to any criminal case begun in any district court before the effective date of the amendment. Id., § 14 (b)'. See also S. Rep. No. 91-1296, pp. 6-7- It is clear from the record in this case that Judge Ritter’s action cannot, as two members of the Court suggest, be classified as an “acquittal” for purposes of this" }, { "docid": "8783737", "title": "", "text": "PHILLIPS, Chief Judge. The principal issue on this appeal requires construction of the Speedy Trial Act of 1974, 18 U.S.C. § 3161, et seq. The four defendants were convicted at a jury trial of unlawful possession and transportation of firearms in violation of 18 U.S. C.App. § 1202(a)(1) and 26 U.S.C. §§ 5681(d) and 5871. They filed motions in the district court to dismiss the indictments on the ground that the Government failed to comply with the Speedy Trial Act. District Judge Don J. Young overruled the motions in an unreported memorandum opinion filed May 16, 1977. I. The Speedy Trial Act was enacted January 3, 1975, to implement the provision of the sixth amendment that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . The report of the House Judiciary Com- . mittee states: The Committee finds that the adoption of speedy trial legislation is necessary in order to give real meaning to that Sixth Amendment right. Thus far, neither the decisions of the Supreme Court nor the implementation of Rule 50(b) of the Federal Rules of Criminal Procedure, concerning plans for achieving the prompt disposition of criminal cases, provides the courts with adequate guidance on this question. H.R.Rep.No. 93 — 1508, 93d Cong., 2d Sess., reprinted in [1974] U.S. Code Cong. & Admin.News pp. 7401, 7404-05. See also United States v. Simmons, 536 F.2d 827, 835 (9th Cir.), cert. denied, 429 U.S. 854, 97 S.Ct. 148, 50 L.Ed.2d 130 (1976). The Act prescribes time limits for various proceedings from arrest to trial. When this legislation becomes fully effective on July 1,1979, the time for indictment or information will be limited to 30 days from the arrest or service of summons. 18 U.S.C. § 3161(b). Arraignment will be required to follow within 10 days after indictment. Trial will be required to begin within 60 days after arraignment. 18 U.S.C. § 3161(c). The sanction for failure to meet the statutory time limits, after deducting excluda-ble delays, will be dismissal of the indictment. Whether the dismissal is with or without prejudice is to" }, { "docid": "1653173", "title": "", "text": "the Supreme Court’s proposed amendment. Thus, [H.R. 5864, as modified] is not intended to change any current practice with regard to these two exceptions .... ” 123 Cong.Rec. H7867 (daily ed. July 27, 1977). See also Hearings on Proposed Amendments, supra, at 55, 84, 106 (statements of Prof. LaFave, Reporter, Advisory Committee on Criminal Rules, and Richard Thornburgh, Deputy Attorney General). Cf. Federal Rules of Criminal Procedure, S.Rep.No. 95-354, 95th Cong. 1st Sess. 8, reprinted in [1977] U.S.Code Cong. & Ad. News, pp. 527, 532 [hereinafter S.Rep.No. 95-354] (“Committee believes and intends that the basis for a court’s refusal to issue an order under paragraph (C) to enable the government to disclose grand jury information in a non-criminal proceeding should be no more restrictive than is the case today under prevailing court decisions”). The government here has understandably refrained from contending that House might be characterized as “government personnel” within the ambit of subsection 2(A) and that disclosure to him might therefore be made without court order whenever government attorneys deemed his assistance necessary. Discussion in the legislative history clearly indicates that “government personnel” embraces only federal agency employees. It is repeatedly referred to as including “Government agency personnel,” or “representatives of government agencies actively assisting United States Attorneys in a grand jury investigation.” H.R.Rep.No.95-195, supra, at 4; S.Rep.No.95-354, supra, at 6-7, U.S.Code Cong. & Admin.News 1977, p. 530. In his explanation to the House Subcommittee on Criminal Justice, Professor LaFave stated that the amendment: “is intended to make it clear that Rule 6(e) does not forbid United States attorneys to make use of other government personnel, such as employees of administrative agencies and government departments, when such outside expertise is necessary.” (Emphasis added.) Hearings on Proposed Amendments, supra, at 105. Every example cited in the deliberations on the amended rule embraced solely officials of United States governmental agencies, such as the F.B.I., I.R.S., S.E.C., the Postal Inspection Service, the Departments of Labor and the Treasury, or the Secret Service. H.R.Rep.No.95-195, supra, at 4; Federal Grand Jury, Hearings on H.J. Res. 46, H.R.1277 and related biiis before the Subcomm. on" }, { "docid": "22582108", "title": "", "text": "the indictment against Appellee for failure to state an offense. The allegations in the indictment clearly state violations of 18 U.S.C. § 2511(l)(a) and (d), for wrongful interception and use of wire communications. We reach this conclusion reluctantly because we share the concern of other courts which have grappled with this problem that application of federal wiretap law to essentially domestic conflicts may lead to harsh results in individual cases. However, the plain language of the section and the Act’s legislative history compels interpretation of the statute to include interspousal wiretaps. It is not for this Court to question the wisdom of Congress and to establish an implied exception to a federal statute by judicial fiat. Only Congress has the authority to amend 18 U.S.C. § 2511. Accordingly, the judgment of the District Court is reversed and the case is remanded for trial. . See text at 667 infra. . Judge Brown concluded that dismissal of the count under 18 U.S.C. § 2511(l)(a) required dismissal of the remaining counts under subsection (d) charging use of information obtained through an illegal interception. . The amendments to Rule 12 became effective on December 1, 1975, two days before Judge Brown’s ruling. . The House Judiciary Committee in its notes on the 1975 amendments to Rule 12(e) declared that district courts should rarely defer ruling on pretrial motions: The Committee modified subdivision (e) to permit the court to defer its ruling on a pretrial motion until after the trial only for good cause. Moreover, the court cannot defer its ruling if to do so will adversely affect a party’s right to appeal. The Committee believes that the rule proposed by the Supreme Court could deprive the government of its appeal rights under statutes like section 3731 of title 18 of the United States Code. Further, the Committee hopes to discourage the tendency to reserve rulings on pretrial motions until after verdict in the hope that the jury’s verdict will make a ruling unnecessary. H.R.Rep. No. 94-247, 93d Cong., 2d Sess. (1974), reprinted 18 U.S.C.A. Fed.R.Crim.P. 12 at 167. . Rule 12 prior to" }, { "docid": "14049650", "title": "", "text": "for imposition of sentence pursuant to 18 U.S.C. § 401. Cf. United States v. Martin, 525 F.2d 703 (2d Cir.), cert. denied, 423 U.S. 1035, 96 S.Ct. 570, 46 L.Ed.2d 410 (1975). Judgment affirmed. . Quinones, who had been a fugitive until shortly before Lewis was tried, received concurrent sentences of 25 years and five years. His appeal was heard by another panel on October 6, 1977, which affirmed the conviction in open court. . The Government states that this sentence is consecutive to the earlier sentences. . It is not clear that the objections raised by appellant at trial to the Sharpe testimony were sufficient to raise all the points urged on this appeal. Moreover, there is no question that other testimony bearing on the pretrial photographic identification, elicited from FBI Agent Farrell, is being challenged before this court in the absence of timely objections below. But appellant throughout urges plain error. . We are told by the briefs the identity of the person picked out in court by Mrs. Sharpe. . Pub.L.No.94-113, 89 Stat. 576. . S.Rep.No.199, 94th Cong., 1st Sess. 2 (1975), hereafter “Senate Report.” See also S.Rep.No. 1277, 93rd Cong., 2d Sess. (1974). . See also the House Report on subsection (C), H.Rep.No.355, 94th Cong., 1st Sess. 2-3 (1975), hereafter “House Report.” . Senate Report, supra note 6, at 2. . House Report, supra note 7, at 3. . § 3501. Admissibility of confessions (a) In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all" }, { "docid": "12067836", "title": "", "text": "Rule 12 contained no such requirements. Therefore, cases before that date held that factual findings were not mandatory, though we sometimes noted their importance or remanded for factual findings. For example, in United States v. Heimforth, 493 F.2d 970 (9th Cir.), cert. denied, 416 U.S. 908, 94 S.Ct. 1615, 40 L.Ed.2d 113 (1974), we held that while factual findings were not required on every suppression motion, trial courts ought to make them when the issue was a “delicate” one such as voluntariness of consent to a search. Id. at 972. The only means of ensuring that trial courts performed the weighing required by a “totality of circumstances” test was to require explicit factual findings on the issue. Id. See also United States v. Miner, 484 F.2d 1075, 1077 (9th Cir.1973) (factual findings not universally required, but case remanded for further factual findings). In 1974, Congress approved amendments to the Rules of Criminal Procedure which had been proposed by the Supreme Court to take effect in 1975. Rule 12 was rewritten to include the new requirement of factual findings. See generally H.R.Rep. No. 247, 94th Cong., 1st Sess., reprinted in 1975 U.S.Code Cong. & Admin.News 366, 372. The advisory committee notes on Rule 12(g) show that the addition of this requirement reflected a focus on the needs of appellate review: This is desirable if pretrial rulings are to be subject to post-conviction review on the record. The judge may find and rule orally from the bench, so long as a verbatim record is taken. There is no necessity of a separate written memorandum containing the judge’s findings and conclusions. Fed.R.Crim.P. 12 (advisory committee’s notes). In accordance with Rule 12, we have in the past remanded for necessary factual findings to be made. In United States v. Castrillon, 716 F.2d at 1282, we stated that a sufficient record of factual findings on the motion to suppress is “necessary to our review.” See also United States v. Robertson, 606 F.2d 853, 859-60 (9th Cir.1979). “Compliance with the rule 12(e) requirement is particularly important in a case such as this, where we examine ‘all" }, { "docid": "22582109", "title": "", "text": "information obtained through an illegal interception. . The amendments to Rule 12 became effective on December 1, 1975, two days before Judge Brown’s ruling. . The House Judiciary Committee in its notes on the 1975 amendments to Rule 12(e) declared that district courts should rarely defer ruling on pretrial motions: The Committee modified subdivision (e) to permit the court to defer its ruling on a pretrial motion until after the trial only for good cause. Moreover, the court cannot defer its ruling if to do so will adversely affect a party’s right to appeal. The Committee believes that the rule proposed by the Supreme Court could deprive the government of its appeal rights under statutes like section 3731 of title 18 of the United States Code. Further, the Committee hopes to discourage the tendency to reserve rulings on pretrial motions until after verdict in the hope that the jury’s verdict will make a ruling unnecessary. H.R.Rep. No. 94-247, 93d Cong., 2d Sess. (1974), reprinted 18 U.S.C.A. Fed.R.Crim.P. 12 at 167. . Rule 12 prior to the 1975 amendments provided that: “[a]n issue of fact shall be tried by a jury if a jury trial is required under the Constitution or an act of Congress. All other issues of fact shall be determined by the court with or without a jury or on affidavits or in such other manner as the court may direct.” The Advisory Committee declared that it was not their intention in deleting this reference to change existing law or practice. See Notes of the Advisory Committee to the 1975 Amendment of Rule 12, reprinted in 8 Moore ¶ 12.-01 [3] at 12-10. See also id. ¶ 12.04 at 12-24-26. . Previously, the Government would have had to take a direct appeal to the Supreme Court under 18 U.S.C. § 3731 from the dismissal of an indictment based on construction of the statute upon which the indictment was founded. Courts of appeals narrowly construed their jurisdiction under the statute to include only dismissals based on obvious defects in the indictment or information, or in the institution of the" }, { "docid": "4065894", "title": "", "text": "securities related activities.” H.R.Rep. No. 123, 94th Cong., 1st Sess. 93 (1975). The Senate bill did not contain a similar study provision, but the Conference Committee picked up the House provision. The Conference Report, however, tempered the House Report’s reference to the original understanding of the Glass-Steagall Act: “These provisions do not authorize the Commission to study or make recommendations with respect to whether these activities are or should remain permissible under the Banking Act of 1933. This matter is the subject of a planned investigation by the Senate Committee on Banking, Housing, and Urban Affairs.” H.R.Conf.Rep. No. 229, 94th Cong., 1st Sess. Ill (1975), U.S.Code Cong. & Admin.News 1975, pp. 179, 342. With that caution, and some slight modification in language, the House-originated study provision was enacted into law. Act of June 4, 1975, Pub.L. No. 94-29, 89 Stat. Ill. Thus, both Houses of Congress were aware as late as 1975 that the administrative interpretation of the Glass-Steagall Act was undergoing considerable revision and that new interpretations of the Glass-Steagall Act might well bring banks actively into the retail brokerage business. Congress, moreover, was sufficiently concerned about the implications of this development to direct the SEC study. Nevertheless, Congress did not see fit then or since to amend the 1934 Act’s definitions of “broker” and “dealer” to include banks. Furthermore, rather than authorize appropriate rulemaking if, in its expertise, the SEC concluded that banks should be subject to broker-dealer regulation, Congress directed the agency to report back to Congress “with recommendations for legislation as it deems advisable.” 15 U.S.C. § 78k-l(e) (emphasis supplied). Thus, in a new statute passed forty years after the Exchange Act, Congress determined not to amend the definitions of “broker,” “dealer” or “bank” to authorize the SEC to regulate banks as broker-dealers without further congressional consideration. Especially in light of such recent action (or purposeful inaction), this court cannot now find authority for the SEC to amend the 1934 statutory definitions by administrative regulation, much as we might sympathize with the SEC’s motivation for and the public interest in such regulation. That is a move" }, { "docid": "12067842", "title": "", "text": "12-40 (rev.1990) (citing Castrillon, 716 F.2d at 1279). When the Criminal Procedure rules were passed by Congress, the House Judiciary Committee viewed this requirement as one of the “more significant” amendments to Rule 12 and treated it as mandatory: “Subdivision (g) as proposed to be amended requires that a verbatim record be made of the pretrial motion proceedings and that the judge make a record of his findings of fact and conclusions of law.” H.R.Rep. No. 247, 94th Cong., 1st Sess. 8, reprinted in 1975 U.S.Code Cong. & Admin.News 674, 680. At the time Rule 12 was enacted, factual findings were envisioned by the Supreme Court, which drafted the amendments, and Congress, which enacted them, as a mandatory requirement on the district court. The only question is whether our cases affirming in the absence of factual findings preclude us from treating factual findings as mandatory. We find support for our approach in the Supreme Court’s emphasis on the fact-finding role of the district court and rejection of inappropriate appellate inferences in Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). “[I]t is the function of the District Court rather than the Court of Appeals to determine the facts_” Murray, 108 S.Ct. at 2543. In Murray, a case dealing with the independent source doctrine, the court of appeals had concluded that there was no relationship between an earlier unlawful search and the seizure of the same evidence pursuant to a warrant. The court based its conclusion only on the district court’s finding that no recitation of matters from the first search had been made to the magistrate in obtaining the warrant for the second search. The Supreme Court vacated the judgment with orders to remand to the district court, stating that in order to apply the independent source doctrine it must make factual findings that the police would have obtained the search warrant regardless of the discovery of the evidence through the first unlawful search. 487 U.S. at 543-44, 108 S.Ct. at 2536. Although there were some grounds for viewing the initial warrantless entry as aimed" }, { "docid": "12067841", "title": "", "text": "essential factual findings imposed by Rule 12 and simultaneously stated that in the absence of factual findings we would affirm on any basis in the record. The importance of Rule 12 is recognized in the treatises: “Perhaps the most significant changes made in the 1975 amendments [to the Federal Rules of Criminal Procedure] were in [another provision of Rule 12] ... and Rule 12(g), requiring a verbatim record of the hearing on a pretrial motion.” 1 C. Wright, Federal Practice and Procedure, § 191 at 683 (2d ed. 1982). “If factual issues are involved in determining a motion, the court is required to state its essential findings on the record. A verbatim record must be made of all proceedings at the hearing, including such findings of fact and conclusions of law as are made orally.” Id., § 194 at 716. “If the lower court fails to make sufficient findings of fact, the appellate court will remand, sometimes providing specific questions it wants the.lower court to answer.” 8 J. Moore, Moore’s Federal Practice If 12.04[1] at 12-40 (rev.1990) (citing Castrillon, 716 F.2d at 1279). When the Criminal Procedure rules were passed by Congress, the House Judiciary Committee viewed this requirement as one of the “more significant” amendments to Rule 12 and treated it as mandatory: “Subdivision (g) as proposed to be amended requires that a verbatim record be made of the pretrial motion proceedings and that the judge make a record of his findings of fact and conclusions of law.” H.R.Rep. No. 247, 94th Cong., 1st Sess. 8, reprinted in 1975 U.S.Code Cong. & Admin.News 674, 680. At the time Rule 12 was enacted, factual findings were envisioned by the Supreme Court, which drafted the amendments, and Congress, which enacted them, as a mandatory requirement on the district court. The only question is whether our cases affirming in the absence of factual findings preclude us from treating factual findings as mandatory. We find support for our approach in the Supreme Court’s emphasis on the fact-finding role of the district court and rejection of inappropriate appellate inferences in Murray v. United States," }, { "docid": "3314670", "title": "", "text": "Id. at 1147-48 (footnote omitted). We agree with this rationale. Petitioner Yielding relies chiefly on the “explicit” language of Rule 11(e)(2) that “[i]f a plea agreement has been reached by the parties, the Court shall, on the record, require the disclosure of the agreement in open court. * * * ” (Emphasis added.) This argument was made to the court in United States v. Stamey, 569 F.2d 805, 806 (4th Cir. 1978) and the court acknowledged that “from this it is arguable that the language used means that the trial court must at least consider the agreement in each instance in which a plea bargain has been struck.” Id. at 806. The argument failed in that case, however, because “[t]he legislative history of current Rule 11 * * * refutes [defendant’s] interpretation.” Id. In a footnote to House Report No. 94-247 the Judiciary Committee writes: Proposed Rule 11(e) has been criticized by some federal judges who read it to mandate the court to permit plea negotiations and the reaching of plea agreements. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit any form of plea agreement to be presented to it. See, e. g., the remarks of United States Circuit Judge William H. Webster in Hearings II, at 196. See also the exchange of correspondence between Judge Webster and United States District Judge Frank A. Kaufman in Hearings II, at 289-90. H.R.Rep. No. 94-247, 94th Cong., 1st Sess., 6, reprinted in [1975] U.S.Code Cong. & Admin.News, pp. 674, 678-79 n.7a (emphasis added). Petitioner argues that the court should not consult legislative history in deciding this case, points out to the court the saluto-ry goals achieved by plea bargaining, and concludes “that it is patently unreasonable to totally reject plea agreements.” Analysis of the pros and eons of plea bargaining is not, however, the dispositive issue in this case; further, we do not agree that the language of the Rule is clear that the court must listen to the agreement. Since Rule 11(e)(2) gives the court the right to accept or reject the" }, { "docid": "1024393", "title": "", "text": "Basile, 569 F.2d 1053, 1057-58 (9th Cir.1978) (continuance); United States v. Moore, 653 F.2d 384, 389 (9th Cir.1981), cert. denied, 454 U.S. 1102, 102 S.Ct. 680, 70 L.Ed.2d 646 (1982) (motion to dismiss). The defendants knew that Jackson had testified before the grand jury that Dupuy was in New Mexico on August 30 to prepare to haul 100 pounds of marijuana to Arizona the next day. This was the basis of overt act 10 in Count I of the indictment. Jackson testified on the first day of testimony that overt act 10 had occurred on August 30 (not September 1 as alleged in the indictment or August 31 as stated in the notice to Dupuy). Dupuy’s counsel was aware of the discrepancy in dates at that time. It was 18 days later, however, before he brought the discrepancy to the attention of the court, when he moved for a continuance for one month to permit him to go to Mexico to locate relatives of Dupuy to support his alibi defense. He did call Dupuy’s wife and mother-in-law to testify that Dupuy was at a family party in No-gales which lasted into the evening of August 30, 1980. The appellants seem to read the Rule 12.1 request as though it were a bill of particulars which limits the charges as to the time, place, and date indicated on the Government’s request for notice-of-alibi. This reading is inconsistent with the requirements of the rule, its legislative history, and case law. Discovery under Rule 12.1 was designed to give the Government notice of the defendant’s alibi defense in order to avoid unfair surprise and delays at trial. United States v. Bouye, 688 F.2d 471, 475 (7th Cir.1982); 8 Moore’s Federal Practice para. 12.01.02 (1982). The legislative history shows that the rule was designed to benefit the Government. H.R. Rep. No. 94-247, 94th Cong., 1st, Sess, 8, U.S.Code Cong. & Admin.News 1975, p. 674. Under Rule 12.1(a) the Government inquires whether the defendant has an alibi defense, and if so the specific defense and witnesses he intends to call. The Government’s reciprocal obligation under" }, { "docid": "5153347", "title": "", "text": "determine that the materials sought to be disclosed have some rational connection with a specific existing or contemplated judicial proceeding as envisioned by Rule 6(e)(2)(C)(i). An ex parte hearing will be scheduled at which the government will be expected to satisfy the requirements set forth above. While Rule 6(e)(2)(C)(i) does not explicitly require a hearing, the legislative history shows that Congress contemplated that a judicial hearing would be held in connection with the issuance of an order under this provision. See Senate Report, supra. The legislative history further reveals that, although aware of case law holding that disclosure to government agency personnel should be allowed only after an adversary hearing, Congress contemplated that “. . . the judicial hearing in connection with an application for a court order by the government under subparagraph 3(c)(i) [sic] should be ex parte so as to preserve, to the maximum extent possible, grand jury secrecy.” Senate Report, supra. . In order to preserve grand jury secrecy this memorandum will not refer to the individual about whom the United States seeks to disclose the information. The individual is identified in an Appendix to the original memorandum filed in this case. “5 For example, the rule presently speaks of a ‘court’ keeping an indictment secret until the defendant is in custody. The proposed amendment would change ‘court’ to ‘federal magistrate’ in order to make Rule 6(e) consistent with Rule 6(f). The Rule as amended would not preclude a judge from receiving an indictment and keeping it secret. Rule 54(e) defines ‘federal magistrate’ to include U. S. Judges as well as U. S. Magistrates. “6 Advisory Committee note to proposed amendment to Rule 6, in communication from the Chief Justice of the United States, H. Doc. 94-464, at 8. “7 id. at 9. “8 Federal Rules of Criminal Procedure Amendments. Hearings before the Subcommittee on Criminal Justice. Committee on the Judiciary. U.S. House of Representatives, 95th Cong. 1st sess. (1977) (hereinafter cited as House Hearings), pp. 19-56, 66-71, 85-95, 105-106, 111-114, 124, 147-166, 181,204,229-230, and 246-247. “9 United States v. Evans, 526 F.2d 701 (5th Cir. 1976)." }, { "docid": "403644", "title": "", "text": "of 8 U.S.C. § 1324(a)(2). Bernal attempted but failed to secure the appearances of the deported alien witnesses at his trial. He then moved to dismiss the indictment on the grounds that the Government’s deportation of the alien witnesses violated his Fifth Amendment right to due process and Sixth Amendment right to call and confront witnesses. The trial judge denied Bernal’s motion. After a bench trial on stipulated facts, Bernal was found guilty as charged and sentenced to five years in prison, of which all but 179 days were suspended. DISCUSSION Bernal was convicted of violating 8 U.S.C. § 1324(a)(2) which prohibits the knowing transportation of any illegal alien who has been in the United States for less than three years. Bernal argues that the district court erred in denying his motion to dismiss the indictment. He contends that the district court should have applied the doctrine enunciated in United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971), to this case. In Mendez-Rodriguez, the defendant was indicted for transporting seven illegal aliens. The Government detained three aliens and deported the others to Mexico without affording the defendant an opportunity to interview them. At trial the defendant testified that he was unaware that the passengers in his car were illegal aliens. The three aliens testified that they were Mexican nationals, who had entered this country without inspection, and that the defendant stopped his car and gave them a ride. Mendez-Rodriguez was convicted. In reversing his conviction, we held that the Government’s action in placing potential alien witnesses beyond the court’s subpoena power before the defendant was afforded an opportunity to interview and subpoena them violated the defendant’s Fifth Amendment right to due process and Sixth Amendment right to compulsory process. The considerations prompting this decision were more fully explained in United States v. Tsutagawa, 500 F.2d 420 (9th Cir. 1974): The thrust of Mendez-Rodriguez is to prevent the basic unfairness of allowing the government to determine which witnesses will not help either side and then to release those witnesses, for all practical purposes, beyond the reach of the defendant. The" }, { "docid": "1653174", "title": "", "text": "in the legislative history clearly indicates that “government personnel” embraces only federal agency employees. It is repeatedly referred to as including “Government agency personnel,” or “representatives of government agencies actively assisting United States Attorneys in a grand jury investigation.” H.R.Rep.No.95-195, supra, at 4; S.Rep.No.95-354, supra, at 6-7, U.S.Code Cong. & Admin.News 1977, p. 530. In his explanation to the House Subcommittee on Criminal Justice, Professor LaFave stated that the amendment: “is intended to make it clear that Rule 6(e) does not forbid United States attorneys to make use of other government personnel, such as employees of administrative agencies and government departments, when such outside expertise is necessary.” (Emphasis added.) Hearings on Proposed Amendments, supra, at 105. Every example cited in the deliberations on the amended rule embraced solely officials of United States governmental agencies, such as the F.B.I., I.R.S., S.E.C., the Postal Inspection Service, the Departments of Labor and the Treasury, or the Secret Service. H.R.Rep.No.95-195, supra, at 4; Federal Grand Jury, Hearings on H.J. Res. 46, H.R.1277 and related biiis before the Subcomm. on Immigration, Citizenship & International Law of the House Comm, on the Judiciary, 94th Cong. 2d Sess. 56 (1976) [hereinafter Federal Grand Jury, Hearings on Related Bills] (statement of Edward Levi, Attorney General of the United States); Hearings on Proposed Amendments, supra, at 29, 105, 204, 229 (statements of Judge Becker, U.S. District Court for Eastern District of Pennsylvania; Prof. Wayne LaFave, Reporter, Advisory Committee on Criminal Rules, Professors Leon Friedman and Melvin Lewis); see also Robert Hawthorne, Inc. v. Dir. of Internal Revenue, 406 F.Supp. 1098, 1126 (E.D.Pa. 1976) (E. Becker, J.). As noted above, the wording of the amended section now found in 2(A) was originally proposed by the Supreme Court to conform to the recent trend in case law. This trend did not include agents from without the federal government. See, e. g., Special February 1971 Grand Jury v. Conlisk, 490 F.2d 894, 896 (7th Cir. 1973). In his explanation of the breadth of “government personnel,” Representative Wiggins of the House Subcommittee on Criminal Justice cited cases that typified this trend. All dealt" }, { "docid": "1929980", "title": "", "text": "the prosecution and the defense during attempts to reach a compromise. Subdivision (e)(6) fosters this kind of frank exchange. See Comm, on Rules of Practice and Procedure, Judicial Conf. of the U.S., Preliminary Draft of Proposed Amendments, 77 F.R.D. 507, 534 (1978). Congress, when it considered this provision, suggested that absent such a shield the possibility of self-incrimination would “discourage defendants from being completely candid and open during plea negotiations . . . .” H.R.Rep. No.94-247, 94th Cong., 1st Sess. 7 (1975) U.S.Code Cong. & Admin.News 1975, at pp. 674, 679. At the opposite end of the spectrum, statements made in conjunction with a plea of guilty that is made in open court but rejected or later withdrawn also are inadmissible. For example, the rule precludes the admission of the defendant’s responses to questions concerning the voluntariness of the plea posed by the trial judge pursuant to Federal Rule of Criminal Procedure 11(d). See 121 Cong.Rec. 17,492 (1975) (remarks of Rep. Wiggins). Other statements made “during proceedings in connection with the disclosure and acceptance or rejection of a plea agreement” fall within the rule as well. H.R.Rep.No.94-247, supra at 7 n.9, U.S.Code Cong. & Admin.News 1975, at 680. Excluding these statements is necessary to effectuate the rejection or later withdrawal. Were the statements admissible, the defendant’s own incriminating words, inseparably linked to a plea now regarded as a nullity, in many cases would operate to convict him, thereby rendering meaningless the rejection or withdrawal. The grand jury testimony in this case falls between these two points on the plea-bargaining spectrum. In particular, the issue here is whether rule 11(e)(6) applies to grand jury testimony given after formalization of a plea agreement but before the defendant has entered his plea, the defendant withdrawing from that agreement and pleading not guilty instead. The Government asks us to follow the decision of the Court of Appeals for the Second Circuit in United States v. Stirling, 571 F.2d 708 (2d Cir.), cert. denied, 439 U.S. 824, 99 S.Ct. 93, 58 L.Ed.2d 116 (1978), and hold that the rule does not apply in these circumstances." }, { "docid": "17707903", "title": "", "text": "Subsequently, the district court handed down an unreported memorandum opinion and order granting Markert’s motion to suppress certain portions of his grand jury testimony and parts of the interviews he gave to postal inspectors and the Assistant United States Attorney. The court decided that a legislator could not waive the privilege accorded by the Speech and Debate Clause of the State Constitution and “that the executive and judicial branches are prohibited from inquiring into legislative activities.” The Government has appealed pursuant to 18 U.S.C. § 3731. The primary question is whether state legislators have a Speech or Debate privilege, conferred either by the Illinois Constitution or as a matter of federal common law, which bars the admission of certain evidence against state legislators in a federal criminal prosecution. If so, we must then decide whether. Markert waived that privilege. I The Federal Rules of Evidence became effective July 1, 1975. Rule 501 is the pertinent rule and provides as follows: “Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.” This version of Rule 501 does not alter the pre-existing criminal law in the federal courts. The standard embodied in the first sentence of Rule 501 was derived from Rule 26 of the Federal Rules of Criminal Procedure. See Senate Report No. 93-1277, 93rd Cong., 2d Sess., 4 U.S.Code Cong. & Admin.News, pp. 7051, 7058 (1974); House Report No. 93-650, 93rd Cong., 2d Sess., 4 U.S.Code Cong. & Admin.News, pp. 7075, 7082 (1974). Rule" }, { "docid": "14317610", "title": "", "text": "fully ventilated before the jury and Taylor has failed to show what favorable evidence would conceivably have been secured if a continuance had been granted. See United States v. Roca-Alvarez, 451 F.2d 843, 847 (5th Cir. 1971). The Government’s late release of information of this nature under the facts of this case did not entitle Taylor to a continuance. Taylor also contends that the District Court erred in refusing to order the Government to produce the criminal records of all Government witnesses. This contention is without merit since this court has ruled that the criminal records of such witnesses are not discoverable. Hemphill v. United States, 392 F.2d 45, 48 (8th Cir.), cert. denied, 393 U.S. 877, 89 S.Ct. 176, 21 L.Ed.2d 149 (1968). The legislative history accompanying the recently amended Federal Rules of Criminal Procedure indicates that the Hemphill rule is intact. The House of Representatives, in considering the proposed amendments to the Federal Rules of Criminal Procedure, approved proposed Rule 16(a)(1)(E) which would have entitled defendants to discover all criminal convictions of the Government witnesses. H.Rep. No. 94-247, 94th Cong., 1st Sess. 15 (1975), reprinted in 2 U.S.Code Cong. & Admin. News, p. 687 (1975). However, the Senate rejected this provision and the House and Senate conferees adopted the Senate position and deleted proposed Rule 16(a)(1)(E). H. Conf.Rep. No. 94-414, 94th Cong., 1st Sess. 12 (1975), reprinted in 2 U.S.Code Cong. & Admin.News, p. 716 (1975). Tiicn fore, the District Court properly denied Taylor’s request to discover the conviction records of the Government witnesses. As to the informant Doward, his criminal record was fully discussed on both direct and cross examination at trial, and thus Taylor can claim no prejudice in the District Court’s refusal to order disclosure of Doward’s criminal record before trial. The judgment of conviction is affirmed. . Taylor raises a subsidiary, yet related, issue that the Government’s belated disclosure of the material relating to Doward constituted a violation of the principles of Brady v. Maryland, supra. The Brady rule provides that Government suppression of material evidence favorable to the defendant denies defendant due process" }, { "docid": "4536926", "title": "", "text": "to stress the desirability and importance of having such motions made and determined prior to the commencement of the trial. Delay in making such motions until after the trial has commenced where, as here, the necessary material on which to ground them was fully available to defendants in ample time to permit them to move, may have serious consequences. These consequences include long delay and interruptions in the course of the trial; the denial to the Government of an opportunity to determine what evidence it can or cannot adduce at the trial in the light of the court’s pretrial rulings on such motions; whatever legal consequences in terms of the due process and double jeopardy clauses of the Constitution may result from the impanelment of the jury; and the serious question of whether the Government could appeal under Section 2518(10) (b) from an order granting a motion to suppress after a jury was impanelled. The report of the Senate Judiciary Committee on the Omnibus' Crime Control Bill of 1968, S.Rep. No. 1097, which includes Section 2518, makes clear the importance placed by Congress on compliance with the pretrial requirements of § 2518(10) (a). Section 2518(9) requires the defendant to be furnished with copies of the court orders under which the interception was authorized not less than ten days before trial. Here defendants were furnished with such copies long before that. The report points out that “The 10-day period is designed to give the party an opportunity to make a pretrial motion to suppress under paragraph 10(a), discussed below.” 2 U.S.Code Cong. & Admin. News, p. 2195 (1968). With respect to paragraph 10(a), the report states The motion must be made before the trial, hearing, or proceeding unless there was no opportunity to make the motion or the person was not aware of the grounds of the motion, for example, when no notice was given under paragraph (9), discussed above. Care must be exercised to avoid having a defendant defeat the right of appeal under paragraph (b), discussed below, by waiting until trial. [Giacona v. United States, 257 F.2d 450 (5th)," }, { "docid": "16775338", "title": "", "text": "subdivision (c)(2)(B), of the sentencing classifications and sentencing guideline range believed to be applicable to the case. At the sentencing hearing, the court shall afford the counsel for the defendant and the attorney for the Government an opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence. Before imposing sentence, the court shall also— (A) determine that the defendant and his counsel have had the opportunity to read and discuss the presentence investigation report made available pursuant to subdivision (c)(3)(A) or summary thereof made available pursuant to subdivision (c)(3)(B); The Notes of the House Committee on the Judiciary state that the 1983 amendment to Rule (a)(1) was designed to permit disclosure of the PSI to both defendant and his counsel, and “to impose upon the sentencing court the additional obligation of determining that the defendant and his counsel have had the opportunity to read the presentence investigation report or summary thereof.” See House Judiciary Committee Notes, H.R.Rep. No. 94-247, U.S.Code Cong. & Admin.News 1975, p. 674, reprinted in 1987 Federal Criminal Codes and Rules 108. Thus, the legislative history of Fed.R.Crim.P. 32(a)(1)(A) is clear that the court must make this determination. Appellant urges that we adopt the test as set out in Rone, which requires the sentencing court to ask defendant: 1) whether he has had the opportunity to read the PSI; 2) whether defendant and counsel have discussed the PSI; and 3) whether defendant wishes to challenge any facts in the PSI. Rone, 743 F.2d at 1175. We do not believe that Fed.R.Crim.P. 32 requires the sentencing court to affirmatively ask the above questions. We thus adhere to the holding of United States v. Mays, 798 F.2d 78 (3rd Cir.1986), that the court need only somehow determine that defendant and counsel have had an opportunity to read and discuss the PSI. Accord United States v. Sambino, 799 F.2d 16, 17 (2d Cir.1985); Aleman, 832 F.2d at 144. The record reveals that the appellant was afforded an opportunity to read the PSI prior to the sentencing hearing. The court made this determination because" } ]

[ { "docid": "21904407", "title": "", "text": "335 F. 2d 70. In upholding the award, the court cited our decision in O’Leary v. Brown-Pacific-Maxon, Inc., 340 U. S. 504. In a subsequent case the Court of Appeals for the Fifth Circuit itself expressed doubt whether its decision in the present case had been consistent with Brown-Pacific-Maxon. O’Keeffe v. Pan American World Airways, 338 F. 2d 319, 325. The court also noted that, “The Gondeck case stands alone, except for a per curiam opinion.” Id., at 325. This Court reversed that per curiam judgment last Term, O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U. S. 359, so that the present case now stands completely alone. In O’Keeffe we made clear that the determinations of the Deputy Commissioner are subject only to limited judicial review, and we reaffirmed the Brown-Pacific-Maxon holding that the Deputy Commissioner need not find a causal relation between the nature of the victim’s employment and the accident, nor that the victim was engaged in activity of benefit to the employer at the time of his injury or death. No more is required than that the obligations or conditions of employment create the “zone of special danger” out of which the injury or death arose. Since the Court of Appeals for the Fifth Circuit misinterpreted the Brown-Pacific-Maxon standard in this case, and since, of those eligible for compensation from the accident, this petitioner stands alone in not receiving it, “the interests of justice would make unfair the strict application of our rules.” United States v. Ohio Power Co., supra, at 99. We therefore grant the motion for leave to file the petition for rehearing, grant the petition for rehearing, vacate the order denying certiorari, grant the petition for certio-rari, and reverse the judgment of the Court of Appeals. It is so ordered. Mr. Justice Fortas took no part in the consideration or decision of this case. Mr. Justice Clark, joining in the judgment. I fully agree with my Brother Harlan “that litigation must at some point come to an end” and “that this decision holds seeds of mischief for the future orderly administration of" } ]

[ { "docid": "5425115", "title": "", "text": "may be accepted. However, on these admitted facts a question of law arises as to whether the injuries arose out of and in the course of employment. The attorneys for the defendant contend (1) that activities in connection with the bowling league were not activities arising out of and in the course of employment, and (2) that the plaintiff, at the time of the accident, had left his regular site of employment and that during the time he was traveling to see Mr. Gorsline he was not acting in the course of his employment. The law recognizes that employers today often promote recreational activities to improve the morale of their employees, particularly when the place of employment is far from home and the employees are exposed to the unfavorable living conditions existing in a construction camp on a remote island. If plaintiff had been injured at the Okinawan bowling alley, or in going to or returning from a bowling match, there would be little doubt, under the cases, that he would be entitled to workman’s compensation. See O’Leary v. Brown-Pacific-Maxon, Inc., 1951, 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483; Hastorf-Nettles, Inc. v. Pillsbury, 9 Cir., 1953, 203 F. 2d 641; Jewel Tea Co. v. Industrial Comm., 1955, 6 Ill.2d 304, 128 N.E.2d 699, 928; Tedesco v. General Electric Co., 1953, 305 N.Y. 544, 114 N.E.2d 33; Dodge v. Wm. J. Keller, Inc., 1952, 304 N.Y. 792, 109 N.E.2d 85; Ott v. Industrial Comm., 1948, 83 Ohio App. 13, 82 N.E.2d 137; see also Larson, Workmen’s Compensation, § 22.00. If the recreational activities were activities within the scope of plaintiff’s employment then it would be equally true that a conference between the plaintiff and the president of the bowling league about bowling league matters would be within the scope of his employment. The defendant maintains, however, that the plaintiff left his place of employment to drive over to another working site to carry on these conversations, and that when going to and returning from that spot he was not acting in the course of his employment. It must be" }, { "docid": "16931467", "title": "", "text": "328, 333, 74 S. Ct. 88, 92, 98 L.Ed. 5. Employees working under the Defense Bases Act, far away from their families and friends, in remote places-where there are severely limited recreational and social activities, are in different circumstances from employees-working at home. Personal activities of a social or recreational nature must be considered as incident to the overseas employment relationship. The employer recognized the problem: Rose’s job was-to organize entertainment on and off the base for the off-duty hours of other employees. An employee injured on Grand Turk while off-duty but on call is like a seaman injured ashore on fun of his own. Short of wilful misconduct, the-seaman is still in the “service of his-ship”. Similarly, Rose, off-duty but sub- ject to call, was in the service of his employer. Whether the Commissioner’s determination involves a “question of fact” or a “question of law where Congress intended the administrative agency to have some discretion or leeway in defining and applying the standard”, judicial review of administrative determinations of scope of employment is limited by the substantial evidence test. In O’Leary v. BrownPacifie-Maxon, Inc., 1951, 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483, the Supreme Court discussed that test as it applies to findings of the Deputy Commissioner in cases under the Defense Bases Act: “The Deputy Commissioner treated the question whether the particular rescue attempt described by the evidence was one of the class covered by the Act [was within the scope of the decedent’s employment] as a question of ‘fact.’ Doing so only serves to illustrate once more the variety of ascertainments covered by the blanket term ‘fact.’ Here of course it does not connote a simple, external, physical event as to which there is conflicting testimony. The ■conclusion contains a combination of the happenings and the inferences drawn from them. In part at least, the inferences presuppose applicable standards for assessing the simple, external facts. Yet the standards are not so severable from the experience of industry nor of such a nature as to be peculiarly appropriate for independent judicial ascertainment as ‘questions of law.’" }, { "docid": "5425117", "title": "", "text": "remembered that the plaintiff’s supervisory position did not tie him to one spot in order to perform his work nor was there evidence that he had to get specific permission to leave the work site. He returned from lunch at 1:00 p. m. and then decided to see Mr. Gorsline at his site some mile away. If he had occasion to see Mr. Gorsline about a construction problem it would scarcely have been contended that he was not acting in the course of his employment just because the site was different from the one wheré his ordinary duties lay. Similarly, since the activities of the bowling league were activities within the scope of plaintiff’s employment, why should a conference with the other superintendent be differently treated? The statute creates a presumption that a claim filed under it comes within the provision of the Act unless there is “substantial evidence to the contrary.” Title 33 U.S.C.A. § 920. The statute creates this presumption for the benefit of the claimant. Accordingly if disability arises in the course of employment it must be presumed to have arisen therefrom unless there is substantial evidence to the contrary. Travelers Ins. Co. v. Donovan, 1955, 95 U.S.App.D.C. 331, 221 F.2d 886. We must recognize that “Workmen’s compensation is not confined by common-law conceptions of scope of employment. * * * The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. * * * Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose.” O’Leary v. Brown-Pacific-Maxon, 1951, 340 U.S. 504, 506, 71 S.Ct. 470, 471, 95 L.Ed. 483. Injuries suffered by an employee in the course of travel raise questions as to whether the injuries are incurred in the course of the employment. Judge Cardozo, speaking for the New York Court of Appeals, has well expressed the test that" }, { "docid": "3471834", "title": "", "text": "of Binghamton, 218 A.D. 451, 218 N.Y.S. 355, 357 (N.Y.App.Div.1926) (finding that an employee was injured in the line of duty and therefore within the scope of his employment); Plouffe v. American Hard Rubber Co., 211 A.D. 298, 207 N.Y.S. 373, 375 (N.Y.App.Div.1925) (finding that a worker stepped out the scope of his employment when he engaged in a personal fight with a co-worker); see also O’Keeffe v. Smith, Hinchman & Grylls Assocs., 380 U.S. 359, 362-63, 85 S.Ct. 1012, 13 L.Ed.2d 895 (1965) (examining the BRB’s determination that the injury arose out of the scope or course of employment). The Fifth Circuit has recently discussed the reach of the course or scope of employment for the DBA. In Jones v. Halliburton, the Fifth Circuit reiterated that the course or scope of employment aspect of the statute was intended to be very broad and that “ ‘[t]he test of recovery is not a causal relationship between the nature of employment of the injured person and the accident .... All that is required is that the obligations or conditions of employment create the zone of special danger out of which the injury arose.”’ 583 F.3d 228, 238 (5th Cir.2009) (quoting O’Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 506-07, 71 S.Ct. 470, 95 L.Ed. 483 (1951)). It is not in dispute here that the plaintiffs were acting within the course and scope of their employment. Moreover, if Congress had meant the broader concept of “arising from or in the course of his employment,” it would have used those very words like it did a few sentences earlier in the same section. And, this determination is different from the question of whether they were injured because of their employment. Instead, for determining the willful act of a third party, the court determines an injury using the much narrower phrase, “because of his employment.” Unlike “out of and in the course of employment,” the phrase “because of his employment” has received very little attention. Cases in New York during the 1920’s focus almost entirely on the inquiry of whether the injury was an accident arising" }, { "docid": "22773625", "title": "", "text": "between the nature of employment of the injured person and the accident. Thom v. Sinclair, [1917] A. C. 127, 142. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose.” Id., at 507. And, borrowing from language in Matter of Waters v. Taylor Co., 218 N. Y. 248, 252, 112 N. E. 727, 728, the Court in Brown-Pacific-Maxon drew the line only at cases where an employee had become “so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment.” 340 U. S., at 507. This standard is in accord with the humanitarian nature of the Act as exemplified by the statutory command that “[i]n any proceeding for the enforcement of a claim for compensation under this chap ter it shall be presumed, in the absence of substantial evidence to the contrary . . . [t]hat the claim comes within the provisions of this chapter.” § 20 (a), 33 U. S. C. §920 (a). In this case, the Deputy Commissioner, applying the Brown-Pacific-Maxon standard to the undisputed facts, concluded “that the accident and the subsequent death of the decedent arose out of and in the course of employment.” 222 F. Supp. 4, 6. The District Court, likewise applying the Brown-Padfic-Maxon standard, held “that the Deputy Commissioner was correct in his finding that the conditions of the deceased’s employment created a zone where the deceased Ecker had to seek recreation under exacting and unconventional conditions and that therefore the accident and death of the decedent arose out of and in the course of employment.” 222 F. Supp., at 9. We agree that the District Court correctly affirmed the finding of the Deputy Commissioner. While this Court may not have reached the same conclusion as the Deputy Commissioner, it cannot be said that his holding" }, { "docid": "243687", "title": "", "text": "does not support a finding of absence of aggravation by the employment, and since the presumption and evidence require the contrary conclusion, it follows that the death arose out of and in the course of the employment. But we point out also that, when deceased met his death he was in and about Wakefield on Ills employer's business, was subject to his instructions, and was on continuous duty, “ * * * Workmen’s compensation is not confined by common-law conceptions of scope of employment. Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 481 467 S.Ct. 801, 808, 91 L.Ed. 1028] ; Matter of Waters v. Taylor Co., 218 NY. 248, 251, 112 N.E. 727, 728. The tost of recovery is not a causal relation between the nature of employment of the injured person and the accident. Thom v. Sinclair, [1917] A.C. 127, 142. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose. Ibid. * * * ” O’Leary v. Brown-Pacific-Maxon, 340 U.S. at pages 506-507, 71 S.Ct. 470, 471, 95 L.Ed. 483." }, { "docid": "3471835", "title": "", "text": "obligations or conditions of employment create the zone of special danger out of which the injury arose.”’ 583 F.3d 228, 238 (5th Cir.2009) (quoting O’Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 506-07, 71 S.Ct. 470, 95 L.Ed. 483 (1951)). It is not in dispute here that the plaintiffs were acting within the course and scope of their employment. Moreover, if Congress had meant the broader concept of “arising from or in the course of his employment,” it would have used those very words like it did a few sentences earlier in the same section. And, this determination is different from the question of whether they were injured because of their employment. Instead, for determining the willful act of a third party, the court determines an injury using the much narrower phrase, “because of his employment.” Unlike “out of and in the course of employment,” the phrase “because of his employment” has received very little attention. Cases in New York during the 1920’s focus almost entirely on the inquiry of whether the injury was an accident arising out of and in the course of employment. The court finds that it cannot ignore the fact that Congress chose two different phrases within the same section and expand “because of his employment” to mean because he was an employee of the employer. Therefore, the common meaning of the phrase “because of his employment” which requires the assault be caused by the person’s occupation is the meaning the court will use in this case. Defendants cite a case from the District of Columbia Appellate Court that addressed the “willful act of a third party against the employee because of his employment” prong of the statute. Grillo v. Nat’l Bank of Wash., 540 A.2d 743, 751-53 (D.C.1988). The Grillo court conflated the two inquiries of whether the injury qualified for the act and whether the injury fell into an intentional tort exception and found that the plaintiff had not adduced any evidence that her employer had conspired with the third person — here a bank robber — to intentionally injure her. Id. at 751. Defendants argue" }, { "docid": "16931468", "title": "", "text": "by the substantial evidence test. In O’Leary v. BrownPacifie-Maxon, Inc., 1951, 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483, the Supreme Court discussed that test as it applies to findings of the Deputy Commissioner in cases under the Defense Bases Act: “The Deputy Commissioner treated the question whether the particular rescue attempt described by the evidence was one of the class covered by the Act [was within the scope of the decedent’s employment] as a question of ‘fact.’ Doing so only serves to illustrate once more the variety of ascertainments covered by the blanket term ‘fact.’ Here of course it does not connote a simple, external, physical event as to which there is conflicting testimony. The ■conclusion contains a combination of the happenings and the inferences drawn from them. In part at least, the inferences presuppose applicable standards for assessing the simple, external facts. Yet the standards are not so severable from the experience of industry nor of such a nature as to be peculiarly appropriate for independent judicial ascertainment as ‘questions of law.’ “Both sides concede that the scope of judicial review of such findings of fact is governed by the Administrative Procedure Act. Act of June 11, 1946, 60 Stat. 237 [Ch. 324], 5 U.S.C.A. § 1001 et seq. The standard, therefore, is that discussed in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474 [457] [71 S.Ct. 456, 95 L.Ed. 456], It is sufficiently described by saying that the findings are to be accepted unless they are unsupported by substantial evidence on the record considered as a whole.” 340 U.S. at 507-508, 71 S.Ct. at 472, 95 L.Ed. 487. (Emphasis added.) In O’Leary v. Brown-Pacific-Maxon, Inc., the injured employee was on Guam, an island far more civilized than Grand Turk. The employee was off-duty, had sought recreation, and was waiting for transportation back to his base from a recreation trip when he dived into dangerous waters, where swimming was prohibited, in order to rescue two employees of another employer. He drowned. The Deputy Commissioner made a finding of “fact”, as the Supreme Court “seemingly" }, { "docid": "16931469", "title": "", "text": "“Both sides concede that the scope of judicial review of such findings of fact is governed by the Administrative Procedure Act. Act of June 11, 1946, 60 Stat. 237 [Ch. 324], 5 U.S.C.A. § 1001 et seq. The standard, therefore, is that discussed in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474 [457] [71 S.Ct. 456, 95 L.Ed. 456], It is sufficiently described by saying that the findings are to be accepted unless they are unsupported by substantial evidence on the record considered as a whole.” 340 U.S. at 507-508, 71 S.Ct. at 472, 95 L.Ed. 487. (Emphasis added.) In O’Leary v. Brown-Pacific-Maxon, Inc., the injured employee was on Guam, an island far more civilized than Grand Turk. The employee was off-duty, had sought recreation, and was waiting for transportation back to his base from a recreation trip when he dived into dangerous waters, where swimming was prohibited, in order to rescue two employees of another employer. He drowned. The Deputy Commissioner made a finding of “fact”, as the Supreme Court “seemingly went out of its way” to point out, that the death arose out of and in the course of employment. In reinstating the award, set aside by the court below, the Supreme Court held: “Workmen’s compensation is not confined by common-law conceptions of scope of employment, Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 481, [67 S.Ct. 801, 808, 91 L.Ed. 1028]; Matter of Waters v. William J. Taylor Co., 218 N.Y. 248, 251, 112 N.E. 727, 728, L.R.A.1917A, 347. The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. Thom v. Sinclair, [1917] A.C. 127, 142 [(Eng.) [1919], A.C. 127, 142 Ann.Cas.1917D, 188-H.L.]. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose.” O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. at 506, 71 S.Ct. at 471, 95" }, { "docid": "22688185", "title": "", "text": "Mr. Justice Frankfurter delivered the opinion of the Court. In this case we are called upon to review an award of compensation under the Longshoremen’s and Harbor Workers’ Compensation Act. Act of March 4, 1927, 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq. The award was made on a claim arising from the accidental death of an employee of Brown-Pacific-Maxon, Inc., a government contractor operating on the island of Guam. Brown-Pacific maintained for its employees a recreation center near the shoreline, along which ran a channel so dangerous for swimmers that its use was forbidden and signs to that effect erected. John Yalak, the employee, spent the afternoon at the center, and was waiting for his employer’s bus to take him from the area when he saw or heard two men, standing on the reefs beyond the channel, signaling for help. Followed by nearly twenty others, he plunged in to effect a rescue. In attempting to swim the channel to reach the two men he was drowned. A claim was filed by his dependent mother, based on the Longshoremen’s Act and on an Act of August 16, 1941, extending the compensation provisions to certain employment in overseas possessions. 55 Stat. 622, 56 Stat. 1035, as amended, 42 U. S. C. § 1651. In due course of the statutory procedure, the Deputy Commissioner found as a “fact” that “at the time of his drowning and death the deceased was using the recreational facilities sponsored and made available by the employer for the use of its employees and such participation by the deceased was an incident of his employment, and that his drowning and death arose out of and in the course of said employment . . . .” Accordingly, he awarded a death benefit of $9.38 per week. Brown-Pacific and its insurance carrier thereupon petitioned the District Court under § 21 of the Act to set aside the award. That court denied the petition on the ground that “there is substantial evidence ... to sustain the compensation order.” On appeal, the Court of Appeals for the" }, { "docid": "22688187", "title": "", "text": "Ninth Circuit reversed. It concluded that “The lethal currents were not a part of the recreational facilities supplied by the employer and the swimming in them for the rescue of the unknown man was not recreation. It was an act entirely disconnected from any use for which the recreational camp was provided and not in the course of Valak’s employment.” 182 F. 2d 772, 773. We granted certiorari, 340 U. S. 849, because the case brought into question judicial review of awards under the Longshoremen’s Act in light of the Administrative Procedure Act. The Longshoremen’s and Harbor Workers’ Act authorizes payment of compensation for “accidental injury or death arising out of and in the course of employment.” § 2 (2), 44 Stat. 1425, 33 U. S. C. § 902 (2). As we read its opinion the Court of Appeals entertained the view that this standard precluded an award for injuries incurred in an attempt to rescue persons not known to be in the employer’s service, undertaken in forbidden waters outside the employer’s premises. We think this is too restricted an interpretation of the Act. Workmen’s compensation is not confined by common-law conceptions of scope of employment. Cardillo v. Liberty Mutual Ins. Co., 330 U. S. 469, 481; Matter of Waters v. Taylor Co., 218 N. Y. 248, 251, 112 N. E. 727, 728. The test of re covery is not a causal relation between the nature of employment of the injured person and the accident. Thom v. Sinclair, [1917] A. C. 127, 142. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the “obligations or conditions” of employment create the “zone of special danger” out of which the injury arose. Ibid. A reasonable rescue attempt, like pursuit in aid of an officer making an arrest, may be “one of the risks of the employment, an incident of the service, foreseeable, if not foreseen, and so covered by the statute.” Matter of Babington v. Yellow Taxi Corp., 250 N. Y. 14, 17," }, { "docid": "1715296", "title": "", "text": "serve to clarify our point. Jaynes v. Potlatch Forests, 1954, 75 Idaho 297, 271 P.2d 1016; Davis v. Chemical Construction Company, 1960, 232 Ark. 50, 334 S.W.2d 697; Smith v. Industrial Accident Commission, 1941, 18 Cal.2d 843, 118 P.2d 6; Warren’s Case, 1951, 326 Mass. 718, 97 N.E.2d 184. In each case the state court reviewed the totality of the circumstances surrounding the injury, including, of course, the factor of whether the injury took place on the employer’s premises. ' The injured employee was held to be covered in these cases, but not merely because he was injured on the property of his employer. On the contrary, the Supreme Court of Idaho in Jaynes v. Potlatch Forests, supra, explic itly rejected any distinction based on property boundaries and ruled that the employee was entitled to compensation even though he was injured after he left his job'site and entered upon a public highway. The court simply looked at all the surrounding circumstances and made a determination that the particular employee was injured as a result of a “zone of special danger” created by the conditions of his employment. See O’Leary v. Brown-Pacific-Maxon, 1951, 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483; O’Keeffe v. Smith, Hinchman & Grylls Asso., 1965, 380 U.S. 359, 85 S.Ct. 1012, 13 L.Ed.2d 895. It is true that the foregoing state cases were concerned with the issue of whether the employees were actually within the provisions of the workmen’s compensation statutes, and here, we must decide only whether there is a substantial question of coverage. But regardless of which issue a court has before it, the method of adjudication must remain the same, and that method should not be artificially restricted by the employer’s property line. Furthermore, the Secretary of Labor is not bound by any such property concept in deciding if the employee should receive FECA compensation, and this is significant because the method of inquiry used by both the administrative body and the federal courts is identical. The only difference is that the Secretary of Labor takes his inquiry one step further and decides" }, { "docid": "22773631", "title": "", "text": "order to obtain it the three crossed the lake in a small aluminum boat to a sandy part of the shore. There they filled the boat with a load of sand, intending to transport it back to the house. The return trip, however, put Archimedes’ Principle to the test; in the middle of the lake the boat capsized and sank. Two of the three men drowned, including Ecker. The Longshoremen’s and Harbor Workers’ Compensation Act, as extended by the Defense Bases Act, provides workmen’s compensation for any “accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out- of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment.” 33 U. S. C. § 902 (2). The Court holds, per curiam, that Ecker died in the course of his employment. I see no meaningful interpretation of the statute which will support this result except a rule that any decision made by a Deputy Commissioner must be upheld (compare Rogers v. Missouri Pac. R. Co., 352 U. S. 500). That interpretation, although meaningful, is unsupportable. O’Leary v. Brown-Pacific-Maxon., Inc., 340 U. S. 504, relied upon by the Court, did not establish such a rule. The Court there upheld a compensation award arising from the accidental death of an employee of a government contractor on the island of Guam. The employer maintained for its employees a recreation center near the shoreline along which ran a very dangerous channel. After spending the afternoon at the employer’s recreation center, and while waiting for the employer’s bus, the employee heard cries for help from two men in trouble in the channel. He drowned in his attempt to rescue them. Mr. Justice Frankfurter, writing for the Court, stated the standard of coverage as: “All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose.” 340 U. S., at" }, { "docid": "16931470", "title": "", "text": "went out of its way” to point out, that the death arose out of and in the course of employment. In reinstating the award, set aside by the court below, the Supreme Court held: “Workmen’s compensation is not confined by common-law conceptions of scope of employment, Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 481, [67 S.Ct. 801, 808, 91 L.Ed. 1028]; Matter of Waters v. William J. Taylor Co., 218 N.Y. 248, 251, 112 N.E. 727, 728, L.R.A.1917A, 347. The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. Thom v. Sinclair, [1917] A.C. 127, 142 [(Eng.) [1919], A.C. 127, 142 Ann.Cas.1917D, 188-H.L.]. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose.” O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. at 506, 71 S.Ct. at 471, 95 L. Ed. 486. (Emphasis added.) Guam was also the place of employment in Self v. Hanson. Mrs. Self was injured while in a parked automobile with a friend at a time and place which the Court described as leading to “some cynicism about the parking”. In upholding the Deputy Commissioner’s award, the court observed: “[T]his is a case where the scope of employment should be construed in favor of the workman * * *. Obviously, recreation was considered a necessity for MK-PK employees in Guam * * [In] concluding] that Mrs. Self’s injury was one ‘arising out of and in the course of employment * * * [we] consider our decision consistent with the liberal purpose of the act.” In Hastorf-Nettles, Inc. v. Pillsbury, 9 Cir. 1953, 203 F.2d 641, the employee was injured while returning to his base from a Labor Day recreation in Anchorage, Alaska. In upholding the compensation award the court stated: “The Deputy Commissioner undoubtedly had the exclusive and unreviewable right to draw inferences from the unique character and isolated place" }, { "docid": "7035625", "title": "", "text": "are to be accepted unless they are unsupported by substantial evidence on the record considered as a whole. O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483; Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. The intervenor urges the proposition that Gondeck was entitled to seek recreation away from the base where he was employed as an incident of his employment and, having received the injuries resulting in his death in returning from a recreational excursion, it follows that death benefits under the Act are payable. The doctrines applicable cannot be stated by such a broad theorem. Professor Larson, thus announces the general principles: “Recreational or social activities are within the course of employment when “(a) They occur on the premises during a lunch or recreation period as a regular incident of the employment ; or “(b) The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment ; or “(c) The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.” 1 Larson’s Workmen’s Compensation Law 328, § 22.00. The stated tests are not here met. We do not think it can be said that the employer sponsored the activity of going to Coekburn Town for recreation because it furnished free bus service between the town and the base. If such sponsorship could be inferred it would not inhere in an expedition made in the employer’s jeep which the employees were prohibited from using for such purposes. The intervenor contends that Gondeck was subject to call at all times and that this, in some manner, made his fatal injury an occurrence in the course of employment. The premise is unsupported and it is the Deputy Commissioner’s finding that Gondeck was injured and killed “when, having completed his day’s work” he journeyed to town, drank a beer, and was" }, { "docid": "2934895", "title": "", "text": "thus highly relevant that Congress had already provided “systems of simple, certain and uniform compensation for injuries or death of those in the armed services.” (340 U.S. at 144, 71 S.Ct. at 158). The concept of “service — incident injury” set forth in the Feres decision was not wholly novel, but instead was one with ready context within the frame work of Workmen’s Compensation statutes. (340 U.S. 143, 146, 71 S.Ct. 153). It is clear that the court contemplated its definition of the phrase “incident to service” in terms of the Workmen’s Compensation concept of “course of employment.” See United States v. Forfari, 268 F.2d 29, 33-34 (9 Cir. 1959); cert, denied 361 U.S. 902, 80 S.Ct. 211, 4 L.Ed.2d 157. The concept of the “course of employment” in Workmen’s Compensation is not limited to injury inflicted by fellow employees or otherwise dependent upon the status of the tortfeasor. For example, O’Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 506-507, 71 S.Ct. 470, 95 L.Ed. 483. The rationale in Feres of the effect of “systems of simple, certain and uniform compensation for injuries or death of those in the armed services,” (340 U.S. at 144, 71 S.Ct. at 158) is still a good one. The Supreme Court has made consistent application of this rationale in analogous situations, holding that where Congress has provided a form of administrative compensation for government employees injured in the performance of their duties, the availability of such a remedy precludes recourse to a tort suit against the government. In Johansen v. United States, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051 (1952) a civilian employee of the United States who was a member of a crew of a public vessel (not a merchant vessel), was not permitted relief under the Public Vessels Act, 43 Stat. 1112 et seq., 46 U.S.C. § 781 et seq., because his remedies under the Federal Employees Compensation Act, 39 Stat. 742 et seq., 5 U.S.C. § 751 et seq., were held to be exclusive. The Court found it had a duty “to attempt to fit the Public Vessels Act, as intelligently" }, { "docid": "7035626", "title": "", "text": "orbit of the employment ; or “(c) The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.” 1 Larson’s Workmen’s Compensation Law 328, § 22.00. The stated tests are not here met. We do not think it can be said that the employer sponsored the activity of going to Coekburn Town for recreation because it furnished free bus service between the town and the base. If such sponsorship could be inferred it would not inhere in an expedition made in the employer’s jeep which the employees were prohibited from using for such purposes. The intervenor contends that Gondeck was subject to call at all times and that this, in some manner, made his fatal injury an occurrence in the course of employment. The premise is unsupported and it is the Deputy Commissioner’s finding that Gondeck was injured and killed “when, having completed his day’s work” he journeyed to town, drank a beer, and was returning to his quarters. The injury did not occur on the employer’s premises nor during the employee’s working time. The injury and death of Gondeck were wholly disassociated from his employment environment. He had not been using recreational facilities furnished by the employer nor did he use the means of travel to and from the place of recreation furnished by the employer. No benefit to the employer has been shown to result from the going by Gondeck to a native club for a beer unless it be for the intangible and, we think, immaterial benefit of improvement of morale that might be the consequence of such an excursion. The trip cannot be regarded as necessary travel to and from work. We find no evidence that furnishes a link by which the activity in which Gondeck was engaged was related to his employment. Larson, supra, 328-342, §§ 22.00-22.30; 99 C.J.S. Workmen’s Compensation § 221e, p. 737 et seq.; 58 Am.Jur. 743, Workmen’s Com pensation § 237; O’Leary v. Brown-Pacific-Maxon, Inc., supra; Ward v. Cardillo, 1943, 77" }, { "docid": "5425118", "title": "", "text": "of employment it must be presumed to have arisen therefrom unless there is substantial evidence to the contrary. Travelers Ins. Co. v. Donovan, 1955, 95 U.S.App.D.C. 331, 221 F.2d 886. We must recognize that “Workmen’s compensation is not confined by common-law conceptions of scope of employment. * * * The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. * * * Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose.” O’Leary v. Brown-Pacific-Maxon, 1951, 340 U.S. 504, 506, 71 S.Ct. 470, 471, 95 L.Ed. 483. Injuries suffered by an employee in the course of travel raise questions as to whether the injuries are incurred in the course of the employment. Judge Cardozo, speaking for the New York Court of Appeals, has well expressed the test that must be used in determining such a question: “ * * * The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. * * * If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped * * * though the business errand was undone, the travel is then personal, and personal the risk.” Marks’ Dependents v. Gray, 1929, 251 N.Y. 90, 93, 167 N.E. 181, 183. The maintenance of a bowling league was a proper activity of the employer, and under the well accepted principles of law activities in connection with this bowling league were activities in the scope of employment of the employee. The plaintiff was engaged in activities in connection with the bowling league at the time he suffered injuries. There was no competent evidence that he" }, { "docid": "22773632", "title": "", "text": "support this result except a rule that any decision made by a Deputy Commissioner must be upheld (compare Rogers v. Missouri Pac. R. Co., 352 U. S. 500). That interpretation, although meaningful, is unsupportable. O’Leary v. Brown-Pacific-Maxon., Inc., 340 U. S. 504, relied upon by the Court, did not establish such a rule. The Court there upheld a compensation award arising from the accidental death of an employee of a government contractor on the island of Guam. The employer maintained for its employees a recreation center near the shoreline along which ran a very dangerous channel. After spending the afternoon at the employer’s recreation center, and while waiting for the employer’s bus, the employee heard cries for help from two men in trouble in the channel. He drowned in his attempt to rescue them. Mr. Justice Frankfurter, writing for the Court, stated the standard of coverage as: “All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose.” 340 U. S., at 507. That language was intended to mean only that where the employer had placed a facility for employees in an especially dangerous location and thus had created a danger of accidents, a “reasonable rescue attempt” could be “one of the risks of the employment.” This was made crystal clear by the caveat: “We hold only that rescue attempts such as that before us are not necessarily excluded from the coverage of the Act as the kind of conduct that employees engage in as frolics of their own.” Ibid. He went on to state that the standard of review to be applied to the Deputy Commissioner’s finding that the employee died in the course of his employment was the same as that set out in Universal Camera Corp. v. Labor Board, 340 U. S. 474, for review of Labor Board decisions. Mr. Justice Frankfurter wrote both Universal Camera and Brown-Pacific-Maxon, and delivered the opinions on the same day. Reliance upon Universal Camera in Brown-Pacific-Maxon shows beyond doubt that the Court was not establishing a rule that" }, { "docid": "5238197", "title": "", "text": "wire on top, and the lot has a guard at the gate at all times. Avasthi’s path down the outside stairs where his injury occurred was the only available route to his automobile in the Center parking lot. The government urges here as in Bailey that we adopt an application of the so-called “premises rule” that would automatically extend FECA coverage to federal employees going to and from work and while on federal property. The argument is futile. We are bound by the Bailey court’s rejection of that absolute rule. 451 F.2d at 966-67. Bailey instead commits us to follow the tenth circuit’s approach in United States v. Browning, 359 F.2d 937 (10th Cir. 1966), which requires consideration of a number of factors, including the premises rule, in deciding whether an injury is com-pensable, id. at 940. Bailey v. United States, 451 F.2d at 966. Seizing on a concept articulated in O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483 (1951), this court held that, although Mrs. Bailey was still on government property when injured, she was not within the “zone of special danger” incident to her employment, id. at 507, 71 S.Ct. 470, and thus was not within FECA coverage. Bailey v. United States, 451 F.2d at 967. The facts in Bailey, however, are markedly different from those now before us. Mrs. Bailey had driven away from her job site in her private automobile and was injured at a traffic light after she had driven more than a block down the main street of Fort Polk, a public street open to all persons authorized to be on the base. The court noted that she was not involved in any activity connected with her work and was not subject to her employer’s supervision. It regarded the government’s ownership of the street as a mere “fortuitous circumstance.” Id. Avasthi was in a significantly different posture while entering and leaving his place of duty. He was clearly within whatever “zone of special danger” the conditions of his employment created while he was descending steps that were part of" } ]

[ { "docid": "7537998", "title": "", "text": "legally enforceable obligation directly assumed by or imposed on an alleged contracting party to do something. 1 C. COR-BIN, CORBIN ON CONTRACTS 6 (1963). There are three requisites which must be met before a court can find an existing contractual obligation. First, there must be a meeting of the minds and an intent of all parties thereto to enter into a contract. See Irma Hosiery Co. v. Home Indemnity Co., 276 F.2d 212, 214 (3rd Cir.1960). Second, there must be a communicated offer and acceptance and an unconditional acceptance by the parties to the terms contained in the offer. See Fahringer v. Strine’s Estate, 420 Pa. 48, 53, 216 A.2d 82, 85 (1966). Third, there must be valid consideration given by both parties, either by an act or forbearance or a return promise which is bargained for and given in exchange for that promise. See Thomas v. R.J. Reynolds Tobacco Co., 350 Pa. 262, 266, 38 A.2d 61, 63 (1944). A promise unsupported by consideration is nudum pactum and unenforceable at law. See Stelmack v. Glen Alden Coal Co., 339 Pa. 410, 414-15, 14 A.2d 127, 129 (1940). Additionally, the agreement of the parties must be sufficiently definite that their intention may be ascertained to a reasonable degree of certainty, although it is well settled that the terms of a contract need not be expressed with complete exactness. Kirk v. Brentwood Manor Homes, Inc., 191 Pa.Super. 488, 492-93, 159 A.2d 48, 51 (1960). Also, the “ ‘[t]he law does not favor, but leans against the destruction of contracts because of uncertainty. Therefore, the courts will, if possible, so construe the contract as to carry into effect the reasonable intention of the parties if that can be ascertained.’” Rossmassler v. Spielberger, 270 Pa. 30, 41, 112 A. 876, 880 (1921), quoting 6 RULING CASE LAW 645 (1915). In the instant case, the three prerequisites for the determination of a contract exist as to the Bank’s agreement to postpone the February Sale. Furthermore, the intent of the parties and the surrounding circumstances lead us to find that the Debtor and the Bank" } ]

[ { "docid": "11870635", "title": "", "text": "The conversation allegedly took place in a Philadelphia hotel on that date after the NFL owners had approved a pension plan which would embrace certain NFL players, but not the present appellants. As did the court below, we shall turn first to the alleged contract between appellants and the NFL. The court declined to hold on motion for summary judgment that no agreement existed between Commissioner Bell and the NFLPA, stating that the existence of such an agreement was “an issue of fact appropriate for determination by trial.” See Fed.R.Civ.P. 56(c). It immediately proceeded to hold, however, that even if such an agreement did exist it did not constitute an enforceable contract. The court’s summary judgment as to this issue had three independent bases: 1) “no reasonable person could find on the basis of the evidence . . . that Commissioner Bell had either actual or apparent authority to bind the ‘NFL’ to a pension agreement;” 2) “there was no legal consideration given for the alleged promise by Commissioner Bell to provide plaintiffs pension coverage;” 3) the alleged contract is too indefinite to be enforced. Because we find the last-mentioned reason to be a fully satisfactory basis for the summary judgment on the contractual issue, we do not pass on either of the other grounds. It is fundamental that for a contract to be enforceable it must be of sufficient explicitness so that a court can per ceive what are the respective obligations of the parties. Fahringer v. Estate of Strine, 420 Pa. 48, 58, 216 A.2d 82, 88 (1966); Lombardo v. Gasparini Excavating Co., 385 Pa. 388, 392, 123 A.2d 663, 666 (1956); Beachler v. Mellon-Stuart Co., 354 Pa. 341, 343, 47 A.2d 147, 149 (1946). See also Willowood Condominium Association, Inc. v. HNC Realty Co., 531 F.2d 1249, 1251 (5th Cir. 1976); Interocean Shipping Co. v. National Shipping and Trading Corp., 462 F.2d 673, 676 (2d Cir. 1972); Heldenbrand v. Stevenson, 249 F.2d 424, 427-28 (10th Cir. 1957); Air Technology Corp. v. General Electric Co., 347 Mass. 613, 626, 199 N.E.2d 538, 548 (1964); Ansorge v. Kane, 244" }, { "docid": "410349", "title": "", "text": "26 L.Ed.2d 142 (1970)). Nonetheless, “the mere existence of a scintilla of evidence” is insufficient to create a genuine issue of material fact. Id. at 252, 106 S.Ct. at 2512. As the Supreme Court explained in Matsushita, [w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than ‘simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no “genuine issue for trial.” Id., 475 U.S. at 586-87, 106 S.Ct. at 1356 (citations omitted). To be admissible for purposes of summary judgment, declarations or affidavits must be based on personal knowledge, must set forth “such facts as would be admissible in evidence,” and must show that the declarant or affiant is competent to testify concerning the facts at issue. Fed.R.Civ.P. 56(e). Declarations on information and. belief are insufficient to establish a factual dispute for purposes of summary judgment. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). IV. DISCUSSION A. Copyright Act Claim 1. The Difference Between the Musical Composition and the Sound Recording Sound recordings and their underlying musical compositions are separate works with their own distinct copyrights. See 17 U.S.C. § 102(a)(2), (7). “When a copyrighted song is recorded on a phono-record, there are two separate copyrights: one in the musical composition and the other in the sound recording.” T.B. Harms Co. v. Jem Records, Inc., 655 F.Supp. 1575, 1576 n. 1 (D.N.J.1987). See also BTE v. Bonnecaze, 43 F.Supp.2d 619, 627 (E.D.La.1999); Jarvis v. A & M Records, 827 F.Supp. 282, 292 (D.N.J.1993) (“Under the Copyright Act, there is a well-established distinction between sound recordings and musical compositions.”). The rights of a copyright in a sound recording do not extend to the song itself, and vice versa. BTE, 43 F.Supp.2d at 627; T.B. Harms, 655 F.Supp. at 1576 n. 1. It is undisputed that Plaintiff has no rights to the sound recording of his performance of Choir, having licensed it for a fee to" }, { "docid": "10474626", "title": "", "text": "equipment with the limited warranty (Tr. 839-41). SCC repeatedly acted in accordance with a replace or repair warranty by returning de-scramblers to Eagle and accepting repaired or new descramblers. Excluding additional or different warranties thus would not alter the negotiated oral contract between the parties. Nor can SCC or Cable Holdings claim surprise or hardship from it. Accordingly, we hold that the parties’ contract included the limited Eagle warranty and disclaimer. Interest provisions, such as contained in paragraph four of Eagle’s terms and conditions, do not materially alter contracts and so are incorporated. No surprise or hardship can be claimed to arise from charging interest on an unpaid bill. Similarly, freight charges generally are paid by the buyer, UCC § 2-308(a), and we hold that the freight charge provision in Eagle’s acknowledgment also became part of the parties’ contract. Eagle’s indemnity and attorney fee provisions, however, materially alter the contract and cannot become part of the contract. Unlike the warranty negotiations, there is no evidence that either Cable Holdings or SCC considered this provision. Nor did Eagle present any evidence that sellers customarily shift all risks for any dispute to the buyers. In view of the hardships that the provisions would cause, we conclude that they materially alter the con tract, that plaintiffs never consented to them, and, therefore, that they did not become part of the contract. Eagle’s notice clause, providing that claims made moré than fifteen days after delivery are waived, also materially alters the agreement. The provision conflicts with the one and one-half year warranty agreed to by the parties and would result in unfair surprise and hardship to SCC. We hold that it did not become part of the agreement. Eagle’s other arguments for defining the agreement strictly by the acknowledgment terms are unpersuasive. Eagle cites Roto-Lith, Ltd. v. F.P. Bartlett & Co., an early UCC § 2-207 case holding that when a seller’s acknowledgment and invoice stated that it was “subject to” terms that materially altered the buyer’s order, the seller’s forms should be treated as a counter-offer expressly conditioned on the buyer’s acceptance of" }, { "docid": "16836461", "title": "", "text": "Ms. Davies contained a reminder that the furniture must be completely paid for and delivered by May 3, 1981 to avoid imposition of storage charges. Ms. Davies filed her petition for relief shortly before, on March 11, 1981. ISSUES The issues are: (1) whether the contract between the parties is executory in nature and can therefore be rejected by the debtor or her trustee;, (2) whether the liquidated damages clause of the contract can be given effect; (3) whether monies held on deposit by the creditor on behalf of the debtor can be used as a setoff against any damages; and (4) whether those monies on deposit are exempt property that must be returned to the debtor. DISCUSSION AND CONCLUSIONS The contract between the debtor, Davies, and the creditor, Jamaica, was clearly executory in nature. The obligations of each party were so far unperformed that if either had failed to complete performance a material breach of the contract would have occurred. This is the definition of an executory contract that has gained universal acceptance under the Bankruptcy Code and the former Act, and which this court relies on for its authority. Jenson v. Continental Financial Corp., 591 F.2d 477 (8th Cir.1979); In re Knutson, 563 F.2d 916 (8th Cir.1977); Matter of Lake Minnewaska Mountain Houses, Inc., 11 B.R. 455 (Bkrtcy.S.D.N.Y.1981); In re New England Carpet Co., 18 B.R. 514 (Bkrtcy.D.Vermont 1982). See also Countryman “Executory Contracts in Bankruptcy: Part I” 57 Minn.L.Rev. 439 (1973); Countryman, “Executory Contracts in Bankruptcy: Part II” 58 Minn.L.Rev. 479 (1974). The existence of an executory contract gives the trustee in bankruptcy the power to reject or assume that contract subject to the approval of the court. 11 U.S.C. Section 365(a). Rejection of an ex-ecutory contract does not necessarily require an affirmative act by the debtor. If the trustee does not either assume or reject the contract within 60 days of the order for relief it is automatically deemed rejected. 11 U.S.C. § 365(d)(1). This court finds that to be the situation in this matter and thus recognizes the subject contract as having been rejected. The" }, { "docid": "5465406", "title": "", "text": "collective bargaining agreement in order to determine whether I must interpret it. I must analyze whether the instant' case falls within the scope of Section 301. First, Henderson’s employment with Merck was always governed by the terms and conditions of the collective bargaining agreements between Merck and Local 8-86. Defendant has produced sufficient evidence\" to show that Henderson was a member of Local Union No. 8-86 during his entire employment with Merck, and his employment was always governed by a collective bargaining agreement. Def.’s Suppl. Jur., Exh. A. Therefore, any independent contract between Merck and Henderson would be formed\" concurrently with a collective bargaining agreement. Accordingly, I must turn to the particular claims raised in Henderson’s .complaint and determine whether resolution of these claims requires interpretation of the collective bargaining agreements. 1. Contractual Claims In his claims for breach of contract and detrimental reliance, Henderson alleges that Merck’s oral and implied policies, as well as Merck’s employment manual provisions concerning alcohol treatment, constituted terms governing his employment with Merck on which he relied, and that Merck violated those terms by discharging him. Compl. ¶¶ 24-31, 48-51. A breach of contract claim under Pennsylvania law requires: (1) a definite, intentional offer to be bound, (2) which is accepted by the other party, and (3) a meeting of the minds. See Morosetti v. Louisiana Land and Exploration Co., 522 Pa. 492, 564 A.2d 151 (1989) (citations omitted). Detrimental reliance, which Henderson alleges in Count Five of his Complaint, is actually an element of promissory estoppel. See, e.g. Raykhman v. Digital Elevator Co., 1993 WL 370988 (E.D.Pa. Aug. 30.1993) (interpreting Pennsylvania law). Promissory estoppel requires that: 1) a promise reasonably is made to induce action or forbearance; 2) action or forbearance is induced; and 3) injustice can only be avoided by enforcing the promise. See Carlson v. Arnot-Ogden Memorial Hospital, 918 F.2d 411, 416 (3d Cir.1990)(interpreting Pennsylvania law). Henderson alleges in these counts that he was induced into employment by, and acted in reliance upon, Merck’s oral, implied, and express (in the employment manual) promises with regard to the conditions under which he" }, { "docid": "5513837", "title": "", "text": "to the estate and because Bitt-man “released” $5,100 of his charging lien as against EMP upon receipt of the payments. District Court Opinion and Order at 4. We agree with the district court that the Fluor litigation resulted in a net direct financial gain to the estate, and we agree that Bittman’s charging lien as against his client EMP was released upon acceptance of the preferential payments. However, as set forth below, we disagree that these two factors satisfy the tests for new value under prior holdings of this and other circuits. As a preliminary matter, Bittman claims that his promise to continue to represent EMP if it made periodic payments to decrease its antecedent debt was consideration sufficient to constitute new value. However, this circuit has held otherwise. “[T]he fact that [the creditor] may have promised to continue to do business with [the debtor] if it paid its bills is not new credit or new value to the estate.” Lowrey v. U.P.G., Inc. (In re Robinson Bros. Drilling, Inc.), 877 F.2d 32, 34 (10th Cir.1989). We are prompted to extend this holding to legal representation for three reasons. First, were we to hold otherwise, nearly any preferential transfer for or on account of an antecedent debt in the circumstance of an ongoing attorney-client relationship would be insulated from recovery as a preference under section 547(c)(1). See id. Second, “the Bankruptcy Code’s definition of the term ‘new value’ implies that the creditor must prove the specific valuation in ‘money or money’s worth in goods, services, or new credit.’ ” Id. (citing Jet Florida, Inc. v. American Airlines, Inc. (In re Jet Florida Sys., Inc.), 861 F.2d 1555, [1559] (11th Cir.1988); 11 U.S.C. § 547(a)(2)). There is no evidence, nor can we hypothecate circumstances in an attorney-client relationship under which there could be evidence, that the $42,000 settlement which enriched the estate was directly attributable to Bittman’s promise to continue to work on the Fluor file from December 1986 until May 1987. And third, continuation of Bittman’s legal representation on the Fluor matter may have been more efficient than securing other" }, { "docid": "23005024", "title": "", "text": "see Restatement (Second) of Contracts § 26 (1979). Appellees believe that this doctrine settles this case, but, in so arguing, appellees misconstrue Channel’s contract claim. Channel does not contend that the letter of intent is binding as a lease or an agreement to enter into a lease. Rather, it is Channel’s position that this document is enforceable as a mutually binding obligation to negotiate in good faith. By unilaterally terminating negotiations with Channel and precipitously entering into a lease agreement with Mr. Good Buys, Channel argues, Grossman acted in bad faith and breached his promise to “withdraw the Store from the rental market and only negotiate the above-described leasing transaction to completion.” See supra note 2. Under Pennsylvania law, the test for enforceability of an agreement is whether both parties have manifested an intention to be bound by its terms and whether the terms are sufficiently definite to be specifically enforced. Lombardo v. Gasparini Excavating Co., 885 Pa. 388, 393, 123 A.2d 663, 666; Linnet v. Hitchcock, 324 Pa.Super. 209, 214, 471 A.2d 537, 540. Additionally, of course, there must be consideration on both sides. Stelmack v. Glen Alden Coal Co., 339 Pa. 410, 14 A.2d 127 (1940); Cardamone v. University of Pittsburgh, 253 Pa.Super. 65, 384 A.2d 1228 (1978). Consideration “confers a benefit upon the promisor or causes a detriment to the promisee and must be an act, forbearance or return promise bargained for and given in exchange for the original promise.” Curry v. Estate of Thompson, 332 Pa.Super. 364, 371, 481 A.2d 658, 661 (1984). Although no Pennsylvania court has considered whether an agreement to negotiate in good faith may meet these conditions, the jurisdictions that have considered the issue have held that such an agreement, if otherwise meeting the requisites of a contract, is an enforceable contract. See, e.g., Thompson v. Liquichimica of America, Inc., 481 P.Supp. 365, 366 (E.D.N.Y.1979); (“Unlike an agreement to agree, which does not constitute a closed proposition, an agreement to use best efforts [or to negotiate in good faith] is a closed proposition, discrete and actionable.”); accord Repro-system, B.V. v. SCM Corp.," }, { "docid": "11870636", "title": "", "text": "3) the alleged contract is too indefinite to be enforced. Because we find the last-mentioned reason to be a fully satisfactory basis for the summary judgment on the contractual issue, we do not pass on either of the other grounds. It is fundamental that for a contract to be enforceable it must be of sufficient explicitness so that a court can per ceive what are the respective obligations of the parties. Fahringer v. Estate of Strine, 420 Pa. 48, 58, 216 A.2d 82, 88 (1966); Lombardo v. Gasparini Excavating Co., 385 Pa. 388, 392, 123 A.2d 663, 666 (1956); Beachler v. Mellon-Stuart Co., 354 Pa. 341, 343, 47 A.2d 147, 149 (1946). See also Willowood Condominium Association, Inc. v. HNC Realty Co., 531 F.2d 1249, 1251 (5th Cir. 1976); Interocean Shipping Co. v. National Shipping and Trading Corp., 462 F.2d 673, 676 (2d Cir. 1972); Heldenbrand v. Stevenson, 249 F.2d 424, 427-28 (10th Cir. 1957); Air Technology Corp. v. General Electric Co., 347 Mass. 613, 626, 199 N.E.2d 538, 548 (1964); Ansorge v. Kane, 244 N.Y. 395, 155 N.E. 683 (1927) (Pound, J.). Applying this principle to the present case, we are convinced that the district court properly found that the alleged oral contract was too indefinite to be enforced even if it fulfilled the other conditions of a valid contract (e. g. consideration) and even if Commissioner Bell was in fact capable of binding the NFL (the issue of apparent authority). The court listed the following as examples of questions left unanswered and unanswerable by the terms of the purported contract: —“Would the pension plan cover players in the old American Football Conference, some of whose players and teams joined the NFL?” —“Would there be special treatment for players whose careers were disrupted by World War II?” —“Would coverage be extended to players on now defunct teams, and if so, would this disqualify the plan for IRS purposes?” —“What does it mean to say the players will be included when ‘sufficient’ funds are available?” The purported oral contract provides no answer to these questions. It is clear that any" }, { "docid": "5465407", "title": "", "text": "Merck violated those terms by discharging him. Compl. ¶¶ 24-31, 48-51. A breach of contract claim under Pennsylvania law requires: (1) a definite, intentional offer to be bound, (2) which is accepted by the other party, and (3) a meeting of the minds. See Morosetti v. Louisiana Land and Exploration Co., 522 Pa. 492, 564 A.2d 151 (1989) (citations omitted). Detrimental reliance, which Henderson alleges in Count Five of his Complaint, is actually an element of promissory estoppel. See, e.g. Raykhman v. Digital Elevator Co., 1993 WL 370988 (E.D.Pa. Aug. 30.1993) (interpreting Pennsylvania law). Promissory estoppel requires that: 1) a promise reasonably is made to induce action or forbearance; 2) action or forbearance is induced; and 3) injustice can only be avoided by enforcing the promise. See Carlson v. Arnot-Ogden Memorial Hospital, 918 F.2d 411, 416 (3d Cir.1990)(interpreting Pennsylvania law). Henderson alleges in these counts that he was induced into employment by, and acted in reliance upon, Merck’s oral, implied, and express (in the employment manual) promises with regard to the conditions under which he could be discharged. Thus, Henderson must show that Merck made such promises, apart from the collective bargaining agreement. Henderson has provided no evidence regarding the oral or implied, promises allegedly made by Merck. Henderson has, at certain points in the pleadings, asserted that the employment manual forms an independent contract that “predate[s] the existence of any applicable collective bargaining agreement.” Plaintiffs Opposition to Motion to Dismiss, at 1. However, the evidence shows that Henderson was always party to a collective bargaining agreement during his employment with Merck, from 1976 to 1995. See Def.’s Suppl. Jur., Exh. A. I find that the employment manual, which has effective date April 1985, does not predate Henderson’s participation in a collective bargaining agreement. In fact, given that it became effective almost nine years after Henderson began employment and first joined Local 8-86, I do not see how it “was offered as an inducement for the plaintiffs employment,” Compl. ¶ 24, nor how “[plaintiffs acceptance of employment was based, all or in part on said manual,” Compl. ¶ 25. Any" }, { "docid": "11189945", "title": "", "text": "for the Bankrupt’s Estate for goods and services was not valid. ISSUES PRESENTED: It is not disputed by the parties that Johnstone received the aforementioned goods and services without payment. Therefore, the following three (3) issues must be decided by this Court. (1) Whether there was a valid employment contract between Johnstone and Ceritano, and if so, what were the terms thereof? (2) Whether Ceritano had the authority, either real or apparent, as the principal owner or as agent, for the Hotel, to bind it to employment contracts which he entered into on its behalf? (3) If a valid employment contract binding the Hotel was entered into by Johnstone and Ceritano, was the contract accepted or rejected by the Trustee under the Chapter XII Real Property Arrangement Proceeding? DISCUSSION A contract had been defined as a promise enforceable at law directly or indirectly. It imports a legally enforceable ob ligation directly assumed by or imposed on the contractor, to do something. Corbin on Contracts, § 3 (1961). Zanes v. Lehigh Valley Transit Company, 41 F.2d 552 (E.D.Pa. 1930), aff'd. 46 F.2d 848 (3rd Cir. 1931), cert. denied 284 U.S. 619, 52 S.Ct. 8, 76 L.Ed. 528 (1931). There are certain requisites in order for a contract to be enforceable at law. The parties to the contract must clearly express their intention to enter into such an agreement. Irma Hosiery Company v. House Indemnity Company, 276 F.2d 212 (3rd Cir. 1960), Fenestra, Incorporated v. John McShain, Incorporated, 433 Pa. 137, 248 A.2d 835 (1969). There must also be a communicated offer and an unconditional acceptance by the parties of the terms contained in the offer. Fahringer v. Strine’s Estate, 420 Pa. 48, 216 A.2d 82 (1966). Hedden v. Lupinsky, 405 Pa. 609, 176 A.2d 406 (1960), Matter of ABC — Federal Oil and Burner Company, 182 F.Supp. 928 (E.D.Pa.1960), aff’d. 290 F.2d 886 (3rd Cir. 1961). Finally, valid consideration must be given by both parties, either by an act, or forbearance or a return promise which is bargained for and given in exchange for that promise. Thomas v. R. J. Reynolds" }, { "docid": "6044444", "title": "", "text": "Welded was not entitled under the contract to charge for storage; and 6. Phoenix was entitled to recover for the value of the steel at $103 per ton — the sum of $273,516 — less the admitted amount due Welded for work on the finished goods, $51,013.08, plus interest on the net amount. Welded Tube Company of America v. Phoenix Steel Corporation, 377 F.Supp. 74 (E.D.Pa.1974). The parties had intended their contractual arrangement to continue for five years unless, two years prior to expiration, either gave written notice to terminate. Welded does not contend that the termination, first discussed with it by Phoenix in July, 1968 and finally confirmed as of June 30, 1969, violated the contract, and so we assume that no breach • of the pertinent provision occurred. Welded claims that it held a common law artisan’s lien for work done on personal property at the owner’s request. Restatement of Security § 61 (1941). For the purpose of discussion, it may be assumed that such a lien might have been valid in these circumstances, if the contractual terms were consistent with its existence. However, it is not the policy of the law in Pennsylvania to extend the application of common law liens, and it has been held that there is a waiver of such a lien when a contract between parties provides for delivery of goods on credit. Carbon Silk Mills Co. v. Powell, 108 F.2d 474 (3d Cir. 1939), cert. denied 310 U.S. 625, 60 S.Ct. 896, 84 L.Ed. 1396 (1940). In addressing a party’s contention that a liberal approach should be taken toward artisans’ liens, the Pennsylvania Supreme Court said in Mitchell v. Standard Repair Co., 275 Pa. 328, 332, 119 A. 410, 411 (1923): “The commercial customs of to-day do not favor the tying up of personal property by liens; and, if the courts should now countenance any such general attitude toward the credit system as that announced in the case relied on by appellant, business, as that term is presently understood, would soon come to a standstill.” Welded relies upon International Electronics Co. v." }, { "docid": "14121920", "title": "", "text": "That he was told he could expect to be transferred to another state, such as Alabama or Mississippi, if he did not sign the release. Against the firmly-entrenched backdrop of criteria set forth above, this Court concludes that Cello-Whitney fails to sustain his burden of establishing the existence of genuine, material issues of fact with respect to any of his claims. A. Claim 1 Cello-Whitney first claims that ADOC was contractually obligated to return him to Washington, notwithstanding the settlement agreement; in other words, he contends the release is void for lack of consideration. In order that there may be consideration in exchange for the release of a legal claim, “there must be mutual concessions.” Maynard, 365 U.S. at 163, 81 S.Ct. at 563 (quoting Burns v. Northern Pacific Railway Co., 134 F.2d 766, 770 (8th Cir.1943)). § 71 of the Restatement, Second, Contracts, sets forth some important parameters when considering whether there is consideration: 1. To constitute consideration, a performance or a return promise must be bargained for. 2. A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise. 3. The performance may consist of a. an act other than a promise, or b. a forbearance, or c. the creation, modification or destruction of a legal relation. 4. The performance or return promise may be given to the promisor or to some other person. It may be given by the promisee or by some other person. A well-established principle of consideration is that “giving a party something to which he or she has an absolute right is not consideration to support that party’s contractual promise.” Salmeron, 724 F.2d at 1362. Stated in slightly different terms, a promise to perform a preexisting duty is insufficient consideration. Restatement, Second, Contracts § 73. Cello-Whitney charges that ADOC had a pre-existing duty to return him to the custody of WDOC, thus there is no consideration for the release and it should be set aside. As set out in the facts above, WDOC" }, { "docid": "7537999", "title": "", "text": "Glen Alden Coal Co., 339 Pa. 410, 414-15, 14 A.2d 127, 129 (1940). Additionally, the agreement of the parties must be sufficiently definite that their intention may be ascertained to a reasonable degree of certainty, although it is well settled that the terms of a contract need not be expressed with complete exactness. Kirk v. Brentwood Manor Homes, Inc., 191 Pa.Super. 488, 492-93, 159 A.2d 48, 51 (1960). Also, the “ ‘[t]he law does not favor, but leans against the destruction of contracts because of uncertainty. Therefore, the courts will, if possible, so construe the contract as to carry into effect the reasonable intention of the parties if that can be ascertained.’” Rossmassler v. Spielberger, 270 Pa. 30, 41, 112 A. 876, 880 (1921), quoting 6 RULING CASE LAW 645 (1915). In the instant case, the three prerequisites for the determination of a contract exist as to the Bank’s agreement to postpone the February Sale. Furthermore, the intent of the parties and the surrounding circumstances lead us to find that the Debtor and the Bank entered into a binding contract to, at minimum, forbear from allowing the February Sale to go forward. However, the length of time which the Defendant would forbear for re-listing the Property remains unresolved. The 2d Forbearance was the result of discussions between Joel, Reagoso, and Higgins, wherein there was a “meeting of the minds” with respect only to removing the Property from the February Sale list, or any listing of which Reagoso had not first notified Higgins. As the Debtor contends, the February 4,1992, letter from Reagoso to Higgins is conclusive that an offer and acceptance was made between the parties as to this element. The letter states that “if the shopping center is not sold within six months of the date of sale of the [Maple Properties] transaction, and/or [the Debtor] does not come up with the required amount of cash, the [Property will be sheriffs sold.” There was also sufficient consideration present for this contract to be enforceable. It was discussed by the parties that the Bank would receive the proceeds from the" }, { "docid": "350696", "title": "", "text": "Unlike the plaintiff bank in Cal. Fed. II, the bank in Fifth Third had made no independent request for accounting forbearances but instead embedded its request in its application. Id. at 275. Nor did the surrounding economic circumstances corroborate an intent to contract because the economic circumstances did not mandate only one interpretation of the parties’ intent. Id. at 276. Another recent Court of Federal Claims decision, Anchor Sav. Bank v. United States, 52 Fed.Cl. 406, 420 (2002), examined the factual evidence and concluded that the record presented did not permit the court to resolve on summary judgment whether there was a contract. The Anchor plaintiff argued that its merger agreement with the thrift, the FHLBB approval letter, and the FHLBB’s role in introducing the plaintiff and the thrift demonstrated a contractual promise by the government. Id. at 418. The Anchor court distinguished these facts from those found in Cal. Fed. II, noting that the Cal. Fed. II case involved bargained-for transactions and forbearance letters expressing the regulators’ assurances. Id. at 420. The Anchor transaction lacked both documentation of negotiations and forbearance letters. Id. In light of the teaching that each Winstarrelated case turns on its own facts, the court now examines the material facts presented by First Commerce to ascertain whether there is undisputed support either for plaintiff’s view that there is a contract for regulatory accounting forbearances or for defendant’s view that there is no such contract. See BCFC 56(c); Anderson, 477 U.S. at 247, 106 S.Ct. 2505. C. Whether This Transaction Was Regulatory Or Contractual The necessary elements of a contract with the government include offer, acceptance, consideration, mutuality of intent to contract and authority on the part of the government official entering into the contract. Cal. Fed. II, 245 F.3d at 1346. However, deciding whether an agreement actually exists between two parties is a mixed question of law and fact. Id. Regulatory documents can be construed as contractual commitments where the reality of a transaction favors such a construction. Fifth Third, 52 Fed.Cl. at 274; see Cal. Fed. II, 245 F.3d at 1347. The burden of" }, { "docid": "7030400", "title": "", "text": "the parties was that the plaintiff would be covered by an oral contract to insure when every physical change of the premises which the defendant deemed proper for its protection had been made.”, “The sole purpose of the requirement for reinspection was that the defendant might be sure that the work had been done.”, and “Inasmuch as it had been done, it is not material that the mere step of notification and reinspeetion did not take place until after the loss.” These findings are insufficient for the reasons set out hereinafter to sustain the conclusion of law reached by the court below that Home Indemnity is liable. Jurisdiction is based on diversity and the law of Pennsylvania applies. Under the law of Pennsylvania, as under that of the other States, there must be a meeting of the minds of the parties and an intent to enter into a contract before a court can find an existing contractual obligation. Benner v. Fire Association of Philadelphia, 1910, 229 Pa. 75, 78 A. 44. The operative facts, taken most favorably to Irma, require the conclusion that as a matter of law Home Indemnity made an offer of a unilateral contract to Irma, i. e., to insure Irma against burglary when the security repairs of the premises had been completed in accordance with Home Indemnity Company’s specifications and Irma had notified Home Indemnity of that completion in order that the alterations could be reinspected by Home Indemnity and approved by it. It was a prime condition of the unilateral contract that the work was to be inspected, and if necessary reinspected, and was to meet with Home Indemnity’s approval before Irma at its first-floor location was to be covered by insurance issued by Home Indemnity and it is not an adequate answer for Irma to assert that the work had been completed by Irma in accordance with Home Indemnity’s specifications and that therefore liability attached. Such a result requires a re-making by the court of the unilateral contract offered by Home Indemnity. The trial judge found that Home Indemnity could not have refused “unreasonably" }, { "docid": "15938105", "title": "", "text": "Inc. Securities Litigation, 183 F.3d 970, 986 (9th Cir.1999) (\"[The incorporation by reference doctrine] permits a district court to consider documents 'whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiffs] pleading,'\" quoting Branch, 14 F.3d at 454). . Id., Exh. 2. . Id. . Id. . Id., Exh. 3. . Id. . Id. . Id., V 19. . See, e.g., id., ¶¶ 17-18, 20. .In fact, its statement falls short even of a promise to enter into a future contract, since Aurora did not commit that it would approve any short sale submitted. . Additionally, Aurora’s \"offer” to delay the foreclosure sale did not give rise to an enforceable contract because there was no consideration for the offer. See, e.g., Saks v. Charity Mission Baptist Church, 90 Cal.App.4th 1116, 1135, 110 Cal.Rptr.2d 45 (2001) (\"Consideration must actually be bargained for as the exchange for the promise ... The existence or non-existence of a bargain where something has been parted with by the promisee or received by the promisor depends upon the manifested intention of the parties.... The fact that the promisee relies on the promise to his injury, or the promisor gains some advantage therefrom, does not establish consideration without the element of bargain or agreed exchange,” quoting Meyer v. Glenmoor Homes, Inc., 246 Cal.App.2d 242, 259, 54 Cal.Rptr. 786 (1966) (emphasis original to Saks; internal quotations omitted)). . Plaintiff's offer of a short sale—to tender an amount approximating the property's real market value—does not satisfy the tender rule. Davidson v. Countrywide Home Loans, Inc., No. 09-CV-2694-IEG (JMA), 2010 WL 2925440, *3 (S.D.Cal. July 23, 2010) (\"Plaintiffs argue they have satisfied any tender requirement by tendering the reasonable value of the Property, which Defendants declined to accept.... However, the cases which Plaintiffs rely on for the proposition that tender of the reasonable value of the Property is sufficient do not support their position,” citing United States Cold Storage v. Great Western Savings & Loan Ass’n, 165 Cal.App.3d 1214, 1222, 212 Cal.Rptr. 232 (1985) (explaining \"the law is" }, { "docid": "9998175", "title": "", "text": "the project and that Shelby owed CTI/DC a substantial amount of money. CTI/DC also alleges HRGM assured CTI/DC that it would be paid for the material on the project. “An implied contract is an agreement which legitimately can be inferred from intention of parties as evidenced by the circumstances and the ordinary course of dealing and the common understanding of men.” County Comm’rs of Caroline County v. J. Roland Dashiell & Sons, Inc., 358 Md. 83, 747 A.2d 600, 606 (2000); see Alternatives Unlimited, Inc. v. New Baltimore City Bd. of School Comm’rs et al., 155 Md.App. 415, 843 A.2d 252, 289 (Md. Ct.Spec.App.2004)(“A true implied contract or contract implied in fact, does not describe a legal relationship which differs from an express contract: only the mode of proof is different.”). The formation of a contract requires mutual assent (offer and acceptance), an agreement definite in its terms, and sufficient consideration. See Peer v. First Federal Sav. and Loan Ass’n of Cumberland, 273 Md. 610, 331 A.2d 299, 301 (1975). The Restatement Second of Contracts defines consideration as follows: (1) To constitute consideration, a performance or a return promise must be bargained for. (2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise. (3) The performance may consist of (a) an act other than a promise, or (b) a forbearance, or (c) the creation, modification, or destruction of a legal relation. (4)The performance or return promise may be given to the promisor or to some other person. It may be given by the promisee or by some other person. Restatement (Second) of Contracts § 71. Many courts, this Court included, have recognized the proposition that a general contractor can become liable directly to a supplier of its subcontractor in circumstances where the oral representation or agreement works to the detriment of the supplier. For example, in American Cas. Co. of Reading Pa. v. Southern Materials Co., 261 F.2d 197, 198-99 (4th Cir.1958), the subcontractor fell delinquent in payments" }, { "docid": "5513838", "title": "", "text": "Cir.1989). We are prompted to extend this holding to legal representation for three reasons. First, were we to hold otherwise, nearly any preferential transfer for or on account of an antecedent debt in the circumstance of an ongoing attorney-client relationship would be insulated from recovery as a preference under section 547(c)(1). See id. Second, “the Bankruptcy Code’s definition of the term ‘new value’ implies that the creditor must prove the specific valuation in ‘money or money’s worth in goods, services, or new credit.’ ” Id. (citing Jet Florida, Inc. v. American Airlines, Inc. (In re Jet Florida Sys., Inc.), 861 F.2d 1555, [1559] (11th Cir.1988); 11 U.S.C. § 547(a)(2)). There is no evidence, nor can we hypothecate circumstances in an attorney-client relationship under which there could be evidence, that the $42,000 settlement which enriched the estate was directly attributable to Bittman’s promise to continue to work on the Fluor file from December 1986 until May 1987. And third, continuation of Bittman’s legal representation on the Fluor matter may have been more efficient than securing other counsel, but in this respect, legal representation is indistinguishable from the efficiency of continuation of the types of business relationships explicitly covered by the In re Robinson Drilling decision. In addition, Bittman claims that the new value requirement was satisfied because, with his acceptance of the payments during the preference period, his attorney’s charging lien was decreased in like amount, thus constituting a release of security. However, Bittman’s release of the charging lien during the preference period was a release only as to his client. It was not a release as to third parties, cf. In re Ranes, 31 B.R. at 72 (charging lien which is automatic as between attorney and client becomes enforceable against third parties if notice of the lien is filed with the court); Dolan, 582 P.2d at 696 (same), including EMP’s other creditors and the trustee or debtor-in-possession. After EMP filed its petition in bankruptcy, the perspective of the court must necessarily change from analysis of the preferential payments’ effect on Bitt-man’s security interest in the settlement proceeds as to his" }, { "docid": "11189946", "title": "", "text": "552 (E.D.Pa. 1930), aff'd. 46 F.2d 848 (3rd Cir. 1931), cert. denied 284 U.S. 619, 52 S.Ct. 8, 76 L.Ed. 528 (1931). There are certain requisites in order for a contract to be enforceable at law. The parties to the contract must clearly express their intention to enter into such an agreement. Irma Hosiery Company v. House Indemnity Company, 276 F.2d 212 (3rd Cir. 1960), Fenestra, Incorporated v. John McShain, Incorporated, 433 Pa. 137, 248 A.2d 835 (1969). There must also be a communicated offer and an unconditional acceptance by the parties of the terms contained in the offer. Fahringer v. Strine’s Estate, 420 Pa. 48, 216 A.2d 82 (1966). Hedden v. Lupinsky, 405 Pa. 609, 176 A.2d 406 (1960), Matter of ABC — Federal Oil and Burner Company, 182 F.Supp. 928 (E.D.Pa.1960), aff’d. 290 F.2d 886 (3rd Cir. 1961). Finally, valid consideration must be given by both parties, either by an act, or forbearance or a return promise which is bargained for and given in exchange for that promise. Thomas v. R. J. Reynolds Tobacco Company, 350 Pa. 262, 28 A.2d 61 (1944). A promise unsupported by consideration is nudum pactum and unenforceable at law. Stelmack v. Glen Alden Coal Company, 339 Pa. 410, 14 A.2d 127 (1940). In the present Case, the testimony is clear and uncontroverted that Johnstone entered into a binding agreement with Ceritano during February of 1977. Johnstone and Ceritano expressly agreed that John-stone would perform public relation duties for the Hotel in exchange for a salary of $200.00 per week and free room and board there. The agreement was oral and was not reduced to writing. However, under Pennsylvania law, a definite oral contract is effective when the offer is orally accepted. The terms of the agreement are to be construed from the words and conduct of the parties. Main Line Theatres, Inc. v. Paramount Film Distributing Corp., 189 F.Supp. 314 (E.D.Pa.1960), aff’d. 298 F.2d 801 (1962) cert. denied 370 U.S. 939, 82 S.Ct. 1585, 8 L.Ed.2d 807 (1962). However, even if the testimony did not disclose an express contract between Ceritano and Johnstone," }, { "docid": "10769400", "title": "", "text": "perhaps not unusual in light of the extent of the work performed and the number of charges listed. Such errors, however, were more than adequately corrected by the district court, which fixed the value of the repairs at less than half that claimed by defendant in the original bill. The remaining violations of the Rules alleged by plaintiff generally involve misrepresentations made by defendant. The district court held defendant did not make such false representations. Upon review of the record, we hold the court did not err in reaching this conclusion. 2. Breach of Express Contract Plaintiff cpntends the written estimate formed an express contract between the parties, which defendant breached by exceeding the estimated price. The district court rejected this claim, holding the estimate given by Pegg was not an offer.and plaintiff’s statements and actions did not constitute an acceptance. It instead held only an implied contract existed by which plaintiff agreed to pay for the reasonable value of the services. Whether the parties have entered into a contract is an issue of fact. The district court’s resolution of this issue will be upheld unless shown to be clearly erroneous. Gibson & Odom Electric Co. v. R. F. Ball Construction Co., 368 F.2d 182 (5th Cir. 1966). See also Coastland Corp. v. Third National Mortgage Co., 611 F.2d 969 (4th Cir. 1979); Arnold Palmer Golf Co. v. Fuqua Industries, Inc., 541 F.2d 584 (6th Cir. 1976). In this case, there was no evidence the estimate was intended as an offer by defendant to enter into an express contract. The court could reasonably find the estimate was just that, an estimate, and not a binding offer to make the repairs or make them at the estimated price. Cf. Orbit Construction Co. v. Trail Development Corp., 198 So.2d 341 (Fla.Dist.Ct.App.1967) (estimate not binding contract, because of lack of mutuality and definiteness). Neither do plaintiff’s statements and actions indicate an acceptance of the alleged offer. He concedes he did not specifically agree to have the repairs made at the time the estimate was prepared. While he eventually shipped the car to defendant," } ]

[ { "docid": "22391649", "title": "", "text": "we do not view the district court as having relied on TRM’s after-the-fact rationale, and we do not believe the court resolved most of the factual disputes, we conclude that the court, in ruling that Chambers had not established his prima facie case, inappropriately drew some fact inferences in favor of TRM and did not credit all of the inferences that could be drawn in favor of Chambers. A. Summary Judgment and Employment Discrimination A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. See, e.g., Fed.R.Civ.P. 56(c); see generally Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment, see, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970), and in assessing the record to determine whether there is a genuine' issue as to any material fact, the court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought, see, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986); Balderman v. United States Veterans Administration, 870 F.2d 57, 60 (2d Cir.1989); Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989); Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 57 (2d Cir.1987). The inferences to be drawn from the underlying facts revealed in materials such as affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion. See, e.g., United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam); Ramseur v. Chase Manhattan Bank, 865 F.2d at 465. On a motion for summary judgment, a" } ]

[ { "docid": "15047255", "title": "", "text": "be arraigned for violation of his supervised release. (Sash Dep. at 57; 2d Am. Compl. ¶ 25.) At the courthouse, Sash began to have chest pains. (Sash Dep. at 70-71; 2d Am. Compl. ¶ 25.) Sash took a nitroclycerine pill, but the United States Marshals noted that he looked ill and refused to take custody of him until he was cleared by a medical professional. (Sash Dep. 71-74; 2d Am. Compl. ¶¶ 26-27.) Sash was taken to NYU Downtown Hospital and admitted overnight. {See Bober Aff. Ex. M: NYU Downtown Hosp. Med. Records; 2d Am. Compl. ¶ 27.) He was released the next morning (March 7, 2006), transported back to the courthouse, and arraigned for violation of his supervised release. {See 2d Am. Compl. ¶ 29.) On April 4, 2006, Judge Casey held a supervised release revocation hearing. United States v. Sash, 444 F.Supp.2d 224, 225 (S.D.N.Y.2006). On August 2, 2006, Judge Casey concluded that there was “overwhelming evidence” that Sash had violated his supervised release. Id. at 228. ANALYSIS I. GOVERNING LEGAL STANDARDS A. Summary Judgment Standard Rule 56(c) of the Federal Rules of Civil Procedure provides that summary “judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir.1991). The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir.1994); Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1223 (2d Cir.1994). The movant may discharge this burden" }, { "docid": "21341736", "title": "", "text": "disposition is appropriate to isolate and dispose of factually unsupported claims or defenses and there are no genuine disputes as to any material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed.Cir. 1987). The movant has the burden of demonstrating that there are no genuine issues of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). After adequate time for discovery and on motion, the movant can meet this burden by establishing that there is an absence of evidence on an essential element of the non-movant’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1563 (Fed.Cir.1987). The fact that there are cross-motions for summary judgment does not mean the court must grant judgment as a matter of law for one side or the other. Each party’s motion must be evaluated on its own merits. All reasonable inferences must be drawn against the party whose motion is under consideration. Mingus Constructors, Inc., 812 F.2d at 1391. The non-movant must respond by producing affirmative evidence that a genuine issue of material fact does exist, and such an issue is determined to be genuine if a reasonable jury could resolve a factual matter in the non-movant’s favor. Sweats Fashions, Inc., 833 F.2d at 1562. Doubts as to whether there are material factual issues in dispute are to be resolved in the light most favorable to the party opposing the motion for summary judgment. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). “In order to defeat a motion for summary judgment, the non-moving party must demonstrate more than some metaphysical doubt as to the material facts, instead it must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87," }, { "docid": "16881483", "title": "", "text": "here, defendant Ruiz. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir.1994); Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir.1994); Hernandez v. New York City Law Dept., 1997 WL 27047 at *6; Burger v. Lit ton, 1996 WL 421449 at *7 The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party’s case on an issue on which the non-movant has the burden of proof. E.g., Celotex Corp. v. Catrett, 477 U.S. at 328, 106 S.Ct at 2552-53; Ruiz v. Selsky, 1997 WL 137448 at *3 (S.D.N.Y. March 24, 1997) (Peck, M.J.). To defeat a motion for summary judgment, the non-moving party must do “more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Instead, the non-moving party must “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); accord, e.g., Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. In evaluating the record to determine whether there is a genuine issue as to any material fact, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513; see also Chambers v. TRM, 43 F.3d at 36; Gallo v. Prudential, 22 F.3d at 1223; Hernandez v. New York City Law Dep’t, 1997 WL 27047 at *6. The Court draws all inferences in favor of the nonmoving party — here, Watson — only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489, 98 L.Ed.2d 487 (1987); Hernandez v. New York City Law Dep’t, 1997 WL 27047" }, { "docid": "10929378", "title": "", "text": "for Summary Judgment Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir.1991). The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995). “In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the mov-ant’s burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party’s claim.” Goenaga, 51 F.3d at 18 (citing Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53). In assessing the record to determine whether there is a genuine issue as to any material fact, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. However, a court draws all inferences in favor of the nonmoving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489, 98 L.Ed.2d 487 (1987). The trial judge’s function in response to a summary judgment motion is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue" }, { "docid": "3422060", "title": "", "text": "as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir.1996). The burden is on the moving party to demonstrate that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Gallo v. Prudential Residential Servs. L.P., 22 F.3d 1219, 1223-24 (2d Cir.1994). “In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant’s burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party’s claim.” Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995). In deciding a motion for summary judgment, the Court’s function is not to try issues of fact, but instead to determine whether there remain any such issues to try. See Sutera v. Sobering Corp., 73 F.3d 13, 15-16 (2d Cir.1995). In doing so, the Court must resolve all ambiguities and draw all justifiable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Holt, 95 F.3d at 129. However, the substantive law governing the case will identify those facts that are material, and “[ojnly disputes over facts that might affect the outcome of the suit under the governing law will preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. “A ‘genuine’ dispute over a material fact only arises if the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” Dister v. Continental Group, 859 F.2d 1108, 1112 (2d Cir.1988) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). Thus, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec." }, { "docid": "12314236", "title": "", "text": "be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(e); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir.1991); Johnson v. St. Clare’s Hosp. & Health Ctr., 96 Civ. 1425, 1998 WL 236235 at *5 (S.D.N.Y. May 13, 1998) (sic, 1997) (Peek, M.J.), aff'd, 1998 WL 213203 (S.D.N.Y. April 30, 1998) (Mukasey, D.J.); Morris v. Amalgamated Lithographers, 994 F.Supp. 161, 167 (S.D.N.Y.1998) (Kaplan, D.J. & Peek, M.J.); Hernandez v. New York City Law Dep’t Corp. Counsel, 94 Civ. 9042, 1997 WL 27047 at *6 (S.D.N.Y. Jan.23, 1997) (Peck, M.J.); Burger v. Litton Indus., Inc., 91 Civ. 0918,1996 WL 421449 at *7 (S.D.N.Y. April 25, 1996)(Peck, M.J.), report & rec. adopted by 1996 WL 609421 (S.D.N.Y. Oct.22,1996). The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment, here, the defendants. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir.1994); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir.1994); Johnson v. St. Clare’s Hosp., 1998 WL 236235 at *5; Morris v. Amalgamated Lithographers, 994 F.Supp. at 167-68; Hernandez v. New York City Law Dep’t, 1997 WL 27047 at *6; Burger v. Litton, 1996 WL 421449 at *7. In evaluating the record to determine whether there is a genuine issue as to any material fact, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513; see also Chambers v. TRM," }, { "docid": "17836088", "title": "", "text": "in the United States through the subject account,” and from the lost “opportunity to earn interest on the subject account.” (Cplt., Third Count, ¶¶ II, III, IV, VI.) Coker further contends that this damage is irreparable because he is not able to open a replacement U.S. bank account, since he is presently domiciled in Nigeria. (Id.) ANALYSIS I. BANTSA’S PARTIAL SUMMARY JUDGMENT MOTION SHOULD BE GRANTED A. Summary Judgment Standards Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir.1991); Hernandez v. New York City Law Dep’t Corp. Counsel, 94 Civ. 9042, 1997 WL 27047 at *6 (S.D.N.Y. Jan.23, 1997) (Peck, M.J.); Burger v. Litton Indus., Inc., 91 Civ. 0918, 1996 WL 421449 at *1 (S.D.N.Y. April 25, 1996) (Peek, M.J.), report & rec. adopted by 1996 WL 609421 (S.D.N.Y. Oct.22, 1996). The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment, here, BANTSA. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir.1994); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir.1994); Hernandez v. New York City Law Dep’t Corp. Counsel, 1997 WL 27047 at *6; Burger v. Litton, 1996 WL 421449 at *7. However, if the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the" }, { "docid": "11767815", "title": "", "text": "notified Malaco it was withdrawing its intent-to-use application in favor of a different trademark, FAMOUS SQWISH CANDY FISH, similar to a mark, NUCLEAR SQUORMS, it was already using for promotion of its gummy worms. In 2001, PIM filed a trademark application for the FAMOUS SQWISH CANDY FISH mark, U.SApp. No. 76/197,860, and introduced its candy into niche markets, such as the fundraising and movie theater candy sectors. On August 15, 2001, Malaco filed the instant infringement, dilution and false advertising action against defendants. II. SUMMARY JUDGMENT STANDARD Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); accord, Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden of demonstrating the absence of any genuine dispute as to a material fact rests \"with the moving party. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir.1997). The movant may meet this burden by demonstrating a lack of evidence to support the nonmovant’s case on a material issue on which the nonmovant has the burden of proof. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. To defeat a summary judgment motion, the non-moving party must do “more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Indeed, the nonmov-ing party must “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); accord Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348. In evaluating the record to" }, { "docid": "22069", "title": "", "text": "Spirt, 691 F.2d at 1062-63 (although plaintiff, a college professor, clearly was not an employee of defendants who administered retirement annuity plans for university, defendants were delegated responsibility by plaintiffs employer and were therefore “so closely intertwined” with employer to be deemed an employer for Title VII purposes). In sum, the record strongly supports the conclusion that Sinai was Plaintiffs employer within the meaning of Title VII. Consequently, Defendant Sinai is not entitled to judgment as a matter of law on this issue. III. Plaintiff’s Discrimination Claims A. Summary Judgment Standard Under Rule 56(e), Fed.R.Civ.P., a motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir.1995). The movant must satisfy a burden of showing the absence of a genuine issue as to any material fact. Celotex, 477 U.S. at 323-25, 106 S.Ct. at 2553-54; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); LaFond v. General Physics Services Corp., 50 F.3d 165, 171 (2d Cir.1995); Cronin, 46 F.3d at 202; Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir.1994). In determining whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); LaFond, 50 F.3d at 171; Cronin, 46 F.3d at 202; Gallo, 22 F.3d at 1223; Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 57 (2d Cir.1987). “The inferences to be drawn from the underlying facts revealed in materials such as affidavits, exhibits, interrogatory answers, and depositions must be viewed in the" }, { "docid": "15047256", "title": "", "text": "Summary Judgment Standard Rule 56(c) of the Federal Rules of Civil Procedure provides that summary “judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir.1991). The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir.1994); Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1223 (2d Cir.1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party’s case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53. To defeat a summary judgment motion, the non-moving party must do “more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Instead, the non-moving party must “set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356; Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (At summary judgment, “[t]he time has come ... ‘to put up or shut up.’ ”) (citations omitted), cert. denied, 540 U.S. 811, 124 S.Ct. 53, 157 L.Ed.2d 24 (2003). In evaluating the record to determine whether there is a genuine" }, { "docid": "8777387", "title": "", "text": "that the non-moving party has failed to establish a necessary element of that party’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment will be granted if “the evidence is so one-sided that one party must prevail as a matter of law.” Lexington-South Elkhorn Water Dist. v. City of Wilmore, 93 F.3d 230, 233 (6th Cir.1996). The movant has the initial burden of informing the district court of the basis of the summary judgment motion and identifying portions of the record which lack a genuine issue of material fact to support the non-movant’s case. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The non-moving party may not rest solely on the allegations in the complaint, but must delineate specific evidence that shows there is a genuine issue for trial. See id. at 324, 106 S.Ct. 2548. A “mere possibility” of a factual dispute is not sufficient to withstand a properly supported motion for summary judgment. Baird v. NHP Mill Creek Apartments, 94 Fed.Appx. 328, 330-31 (6th Cir.2004) (quoting Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir.1986)). The non-moving party must show more than “some metaphysical doubt as to the material facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Furthermore, a dispute about a material fact is genuine if a reasonable factfinder could find for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the court determines that a reasonable factfinder could not find for the non-moving party, summary judgment must be granted. See Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. All reasonable inferences are to be drawn in favor of the non-moving party and the evidence of the non-movant is to be believed. Id. at 254, 106 S.Ct. 2505. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those" }, { "docid": "10272321", "title": "", "text": "7056, provides that summary judgment is appropriate if the court determines that the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); In re Ionosphere Clubs, Inc., 147 B.R. 855, 860 (Bankr.S.D.N.Y.1992). A fact is considered material if it “might affect the outcome of the suit under governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510. In considering a motion for summary judgment, “the court’s responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.” Carter v. Lussier, 955 F.2d 841, 845 (2d Cir.1992); Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir.), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). The moving party initially bears the burden of establishing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); In re Ionosphere Clubs, Inc., 147 B.R. at 861. That burden can be satisfied by demonstrating the absence of evidence supporting the non-movant’s case. Celotex Corp. v. Catrett, 477 U.S. at 325, 106 S.Ct. at 2554. When a motion for summary judgment is made and supported by the movant, Rule 56(e) requires the non-moving party to set forth specific facts demonstrating that genuine issues of material fact remain for trial. Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-57, 89 L.Ed.2d 538 (1986). The non-moving party may not defeat a properly supported motion" }, { "docid": "302173", "title": "", "text": "ordered, to the prejudice of the dealer. Id. § 278a-1(b). Once a dealer has established the non-renewal or impairment of an existing distribution relationship, it is the supplier’s burden to demonstrate that it had just cause. See Draft-Line Corp. v. Hon Co., 781 F.Supp. 841, 844 (D.P.R.1991), aff'd mem., 983 F.2d 1046 (1993). The well-known formula for determination of a summary judgment motion directs that, to grant summary judgment, the Court must find that the competent evidence discloses no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. Proc. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The moving party bears the burden of showing that no genuine issue of fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); LaFond v. General Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir.1995). The court’s function is not to weigh the evidence and determine the truth of the matter, but rather to ascertain whether a genuine issue exists to be tried. See Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.1994). In assessing the record to determine whether there is a genuine issue as to any material fact, the nonmovant’s evidence is to be credited, and all reasonable inferences are to be drawn in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); LaFond, 50 F.3d at 171. However, “[t]he non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture.” Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990) (quoting Borthwick v. First Georgetown Securities, Inc., 892 F.2d 178, 181 (2d Cir.1989); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986)) (internal quotation marks and citations omitted). With respect to issues as to which the nonmovant would bear the" }, { "docid": "22189849", "title": "", "text": "court’s grant of summary judgment de novo. Republic Nat’l Bank of New York v. Delta Air Lines, 263 F.3d 42, 46 (2d Cir.2001). Although misapplied in this case, the standards governing summary judgment are well-settled. Summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir.1994). In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant, in this case IBM. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Weinstock v. Colum bia Univ., 224 F.3d 38, 41 (2d Cir.2000). Stated more succinctly, “[t]he evidence of the non-movant is to be believed.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute regarding a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. Therefore, summary judgment is improper if there is any evidence in the record that could reasonably support a jury’s verdict for the non-moving party. Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir.2000). In deciding a motion for summary judgment, the district court’s function is not to weigh the evidence or resolve issues of fact; it is confined to deciding whether a rational juror could find in favor of the non-moving party. Anderson, 477 U.S. at" }, { "docid": "14077286", "title": "", "text": "the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2); see also Celotex Corp. v. Catrett, 477 U.S. 817, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Shannon v. N.Y. City Transit Auth., 332 F.3d 95, 98 (2d Cir.2003). The burden of demonstrating the absence of any genuine dispute as to material facts rests upon the party seeking summary judgment. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000). Once a properly supported motion for summary judgment has been submitted, the burden shifts to the non-moving party to make a sufficient showing to establish the essential elements of the claims on which it bears the burden of proof at trial. See Hayut v. State Univ. of N.Y., 352 F.3d 733, 743 (2d Cir.2003); Peck v. Pub. Serv. Mut. Ins. Co., 326 F.3d 330, 337 (2d Cir.2003) (citing Celotex, 477 U.S. at 323, 106 S.Ct. at 2553). In assessing the record to determine whether there is a genuine issue to be tried as to any material fact, courts are required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); McClellan v. Smith, 439 F.3d 137, 144 (2d Cir.2006). However, the non-moving party must put forth “specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2). A summary judgment “opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The non-moving party may not rely on its pleadings, mere allegations, simple denials, conclusory statements, or conjecture to create a genuine issue for trial. See Anderson, 477 U.S. at 256-57, 106 S.Ct. at 2514; Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir.2007). Moreover, “[t]he ‘mere existence of a scintilla" }, { "docid": "11383741", "title": "", "text": "related” to her EEOC charge, the Court lacks jurisdiction to hear plaintiffs Title VII wage disparity claim. Of course, the Court does have jurisdiction to hear plaintiffs Equal Pay Act claim. See infra Part IC. B. Summary Judgment and Title VII Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir.1991). The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir.1994). In assessing the record to determine whether there is a genuine issue as to any material fact, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255, 106 S.Ct. at 2513; accord Chambers, 43 F.3d at 36. The Court draws all inferences in favor of the nonmoving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489, 98 L.Ed.2d 487 (1987). The trial judge’s function in response to a summary judgment motion is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. See Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir.1994). “[T]he mere" }, { "docid": "215246", "title": "", "text": "by Federal Rules of Bankruptcy Procedure 9014 and 7056, provides that summary judgment is appropriate if the court determines that the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); In re Ionosphere Clubs, Inc., 147 B.R. 855, 860 (Bankr.S.D.N.Y.1992). A fact is considered material if it “might affect the outcome of the suit under governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510. In considering a motion for summary judgment, “the court’s responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.” Carter v. Lussier, 955 F.2d 841, 845 (2d Cir.1992); Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir.), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). The moving party initially bears the burden of establishing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); In re Ionosphere Clubs, Inc., 147 B.R. at 861. That burden can be satisfied by demonstrating the absence of evidence supporting the non-mov-ant’s case. Celotex Corp. v. Catrett, 477 U.S. at 325, 106 S.Ct. at 2553. When a motion for summary judgment is made and supported by the movant, Rule 56(e) requires the nonmoving party to set forth specific facts demonstrating that genuine issues of material fact remain for trial. Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). The non-moving" }, { "docid": "16881482", "title": "", "text": "I. SUMMARY JUDGMENT STANDARDS Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(e); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir.1991); Hernandez v. New York City Law Dept. Corp. Counsel, 1997 WL 27047 at *6 (S.D.N.Y. Jan.23, 1997) (Peek, M.J.); Burger v. Litton Industries, Inc., 1996 WL 421449 at *7 (S.D.N.Y. April 25,1996) (Peck, M.J.), report & rec. adopted by 1996 WL 609421 (S.D.N.Y. Oct.22,1996). The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment, here, defendant Ruiz. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir.1994); Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir.1994); Hernandez v. New York City Law Dept., 1997 WL 27047 at *6; Burger v. Lit ton, 1996 WL 421449 at *7 The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party’s case on an issue on which the non-movant has the burden of proof. E.g., Celotex Corp. v. Catrett, 477 U.S. at 328, 106 S.Ct at 2552-53; Ruiz v. Selsky, 1997 WL 137448 at *3 (S.D.N.Y. March 24, 1997) (Peck, M.J.). To defeat a motion for summary judgment, the non-moving party must do “more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356," }, { "docid": "12960102", "title": "", "text": "2505, 2511, 91 L.Ed.2d 202 (1986). The moving party has the burden of showing that there are no material facts in dispute and all reasonable inferences are to be drawn and all ambiguities resolved in favor of the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The movant need not produce evidence showing the absence of a genuine issue of material fact; rather, “the burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). To defeat a properly supported motion for summary judgment, the nonmoving party “may not rest upon the mere allegations or denials of [its] pleading;” the non-moving party’s response “must set forth specific facts showing that there is a genuine issue for trial.” Rule 56(e), Fed.R.Civ.P. The nonmoving party must show more than “some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Summary judgment will enter, “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, supra, 477 U.S. at 322, 106 S.Ct. at 2552. A dispute regarding a material fact is genuine if a reasonable jury could return a verdict for the nonmoving party on that issue. Vezzetti v. Pellegrini, 22 F.3d 483, 485 (2d Cir.1994); see Burke v. Jacoby, 981 F.2d 1372, 1379 (2d Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2338, 124 L.Ed.2d 249 (1993) (“When a defendant has moved for summary judgment on the ground that undisputed facts reveal that the plaintiff cannot establish an essential element of the claim, on which element the" }, { "docid": "16448733", "title": "", "text": "MEMORANDUM AND ORDER PAULEY, District Judge. On June 4, 2001, plaintiff AT & T Corp. (“AT & T”) filed this patent infringement action alleging that certain of defendant Microsoft Corporation’s (“Microsoft”) products containing speech codecs infringe its United States Reissue Patent No. 32,580 (the “580 patent”). Currently before this Court is Microsoft’s motion for partial summary judgment, pursuant to Fed.R.CivJ?. 56 and 35 U.S.C. § 287(a), to limit AT & T from seeking potential damages in this action accruing prior to April 2, 1999. For the reasons set forth below, Microsoft’s motion for partial summary judgment is granted. DISCUSSION 1. Stt/mmary Judgment Standard Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judg ment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir.1997). The movant may meet this burden by demonstrating a lack of evidence to support the nonmovant’s case on a material issue on which the nonmovant has the burden of proof. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. To defeat a summary judgment motion, the non-moving party must do “more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Indeed, the nonmov-ing party must “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e);" } ]

[ { "docid": "5302029", "title": "", "text": "Insurance Co., 5 Cir. 1963, 311 F.2d 893 (alternative holding); Southern Parkway Corp. v. Lakewood Park Corp., 1959, 106 U.S.App.D.C. 372, 273 F.2d 107; Island Service Co. v. Perez, 9 Cir. 1957, 255 F.2d 559, 561. See also, District 65, Etc. v. McKague, 3 Cir. 1954, 216 F.2d 153. Aside from the express provisions of Rules 54 and 58 already referred to, these decisions also rely on the rationale that the district court lacks jurisdiction to act during the appeal. But cf., Arnhold v. U. S., 9 Cir. 1955, 225 F.2d 650, vacated and remanded on other grounds, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354. Thus, in Bush, supra, 311 F.2d at 894, this court stated: While we indicated upon oral argument that we would delay decision pending the efforts to obtain a certificate under Rule 54(b), that certificate does not change our opinion that the appeal should be dismissed for two reasons: First, the certificate cannot attach finality to an adjudication that does not finally dispose of a claim, and we hold that this one does not Second, the district court was without jurisdiction to enter the delayed certificate. One further suggested basis for concluding that the district court lacks jurisdiction to act, nunc pro tunc or otherwise under Rule 54, is that it has previously entered a final judgment under Rule 58. See Wright & Miller, supra, at 88. Hence, it is contended that where, as here, no final judgment complying with Rule 58 had been entered prior to the attempted nunc pro tunc certification under Rule 54, the district court was not divested of jurisdiction when it entered the certification. However, it is the filing of the appeal, not the entering of a final judgment, that divests the district court of jurisdiction. See, e. g., Rules 50(b), 52(b), 59(b), 59(d), 59(e), and 60(b), F.R.C.P.; 9 Moore, Federal Practice § 203.11. In fact, there is no final judgment until the Rule 54(b) certification has been entered, Austracan (U.S.A.) Inc. v. M/V Lemoncore, supra; McCormick v. Landrieu, supra. If the appeal did not deprive the district court" } ]

[ { "docid": "23182972", "title": "", "text": "a long period of time, visited that home periodically over the years, and fully expects to reside in the home upon her retirement. Additionally, the intervening lessee is staying there largely in a custodial role paying nominal rent. Under these factual circumstances evaluated in their totality, we conclude that the purpose of this credit transaction was “primarily for personal, family, household, or agricultural purposes.” Under these facts, the Truth in Lending disclosure requirements do apply to this credit transaction. Summary judgment was therefore incorrectly granted. Accordingly, we REVERSE and REMAND to the district court for further proceedings in accordance with law. . The district court possesses power to adjudicate pendent claims that “derive from a common nucleus of operative fact” if the claims are such that a plaintiff “would ordinarily be expected to try them all in one judicial proceeding.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). See generally 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3567 (1975). In the first instance, the district court in its discretion on remand should decide whether the plaintiff’s pendent claims should be reinstated. . Accordingly, we leave for yet another day consideration of plaintiffs alternative contention that the appeal should not be dismissed since the failure to obtain the Rule 54(b) certificate was allegedly inadvertent and the district court has now entered the required certificate nunc pro tunc. This court in 1963 held that belatedly entered Rule 54(b) certificates would not retroactively confer appellate jurisdiction in these situations, since the district court was without jurisdiction to enter the delayed certificate. Bush v. United Benefit Fire Insurance Company, 311 F.2d 893 (5th Cir. 1963). More recently, this court questioned the wisdom of the Bush holding and noted that some commentators support giving retroactive effect to Rule 54(b) nunc pro tunc certificates. Kirtland v. McDermott & Co., 568 F.2d 1166, 1170 (5th Cir. 1978). See 10 C. Wright & A. Miller, Federal Practice and Procedure § 2660 at 88-89 (1973). . The Truth in Lending Act is" }, { "docid": "8272519", "title": "", "text": "kept by plaintiff, but which was shown on Tanner’s worksheet and eventually became a part of the “cash price” as quoted on the retail installment contract. However, disclosure of the cost of merchandise, its components, accessories, and related services which may be included in the “cash price” are not regulated by the Truth in Lending Act. Instead, the Act’s purpose is “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” 15 U. S.C.A. § 1601; see also discussion in Mourning v. Family Publications Service, Inc., 411 U.S. 356 at 363-369, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973). The Act’s thrust is more toward a disclosure of credit terms than toward the various components which may make up an article’s cash price, although the cash price itself must be disclosed, 15 U.S. C.A. § 1638. Thus the only legal basis for plaintiff’s suit under the Act is his contention that the required credit disclosures were not made to him at the time of the contracting, in that the contract was blank when he signed it. A contention that the purchaser was not made aware of a particular component of the cash price would not be cognizable in a suit brought under the Act. . When cross-examined as to how she could remember with such precision the date of a trailer’s delivery some ten months previously, Mrs. Partin admitted that she could not recall the exact delivery date of the latest trailer brought into her park, though one had been brought in “recently.” . The Board of Governors of the Federal Reserve System is authorized by 15 U.S.C.A. § 1604 to “prescribe regulations to carry out the purposes of this subchapter.” The regulations pertaining to Truth in Lending, popularly known as “Regulation Z”, are reported at 12 G.F.R. § 226.1 et seq. . The few eases construing this recent legislation are collected in an annotation, “Civil Remedies of Consumer for Violations of Truth in Lending Act,” 11 A.L.R.Fed." }, { "docid": "7930661", "title": "", "text": "I and II, the federal CLA claims. Miller v. Nissan Motor Acceptance Corp., No. Civ.A. 99-4953, 2000 WL 1599244 (E.D.Pa. Oct.27, 2000). Cross-appeals followed. However, in a Bench Opinion, issued on September 24, 2001, we dismissed the appeals for lack of appellate jurisdiction after holding that the district court improvidently granted Rule 54(b) certification. We reached that conclusion because the federal claims certified by the district court were inextricably intertwined with the Count I disclosure claim which had not been completely adjudicated. Miller v. Nissan Motor Acceptance Corp., 275 F.3d 36 (3d Cir.2001). Thereafter, the district court fully adjudicated the Count I Applebaum disclosure claim in favor of Plaintiffs and once again granted Rule 54(b) certification on the CLA claims. Both NMAC and the Plaintiffs have filed appeals from that ruling. III. THE CONSUMER LEASING ACT “In 1976, in response to an emerging trend toward automobile leasing, Congress passed the Consumer Leasing Act, 15 U.S.C. §§ 1667-1667e, as Chapter 5 of the Truth in Lending Act (“TILA”), 15 U.S.C. § 1607 et seq.” Applebaum, 226 F.3d at 217. The CLA was intended ‘to assure a meaningful disclosure of the terms of leases of personal property for personal, family, or household purposes so as to enable the lessee to compare more readily the various lease terms available to him, limit balloon payments in consumer leasing, enable comparison of lease terms with credit terms where appropriate, and to assure meaningful and accurate disclosures of lease terms in advertisements.’ Id. at 217-18 (quoting 15 U.S.C. § 1601(b)). “The Senate Report accompanying the CLA explained that ‘[t]he purpose of the legislation is to provide consumers with meaningful information about the component and aggregate costs of consumer leases, so they can make better informed choices between leases, and between leases and credit sales.’ ” Id. at 218 (citation omitted). “The Federal Reserve Board has been given the authority to issue rules implementing the CLA, see 15 U.S.C. § 1604, and the Board has exercised that authority by promulgating ‘Regulation M,’ 12 C.F.R. § 213 et seq. ” Id. “The Board’s staff has also issued official" }, { "docid": "17845993", "title": "", "text": "is proper. On the other hand, if reasonable and fair- minded men in the exercise of impartial judgment might reach different- conclusions, [summary judgment] should be denied, and the case submitted to the jury. A mere scintilla is insufficient to present a question for the jury. However, it is the function of the jury as the traditional finder of facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses. The Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion for [summary judgment]. Molnar v. Ebasco Constructors, Inc., 986 F.2d 115, 117-18 (5th Cir.1993) (citation omitted). B. TRUTH IN LENDING ACT In count one of his complaint the plaintiff alleges violations of the Truth in Lending Act (“TILA”). Specifically, the plaintiff alleges that Hancock Bank violated TILA and its regulatory counterpart, Regulation Z, by failing to disclose the NSF processing fees charged to his account. TILA is intended to promote the informed use of credit by requiring certain disclosures to consumers regarding the terms and cost of credit. 15 U.S.C. § 1604(a); 12 C.F.R. § 226.1(b). TILA provides that the Board of Governors of the Federal Reserve System shall promulgate appropriate regulations to carry out its purposes. 15 U.S.C. § 1604. Those regulations, commonly referred to as Regulation Z, are codified at 12 C.F.R. § 226. Among other things, TILA and Regulation Z require certain disclosures to be made regarding finance charges. Regulation Z applies: to each individual or business that offers or extends credit when four conditions are met: (i) the credit is offered or extended to consumers; (ii) the offering or extension of credit is done regularly; (iii) the credit is subject to a finance charge or is payable by a written agreement in more than four installments; and (iv) the credit is primarily for personal, family, or household purposes. 12 C.F.R. 226.1(c). Regulation Z defines “finance charge” as “the cost of consumer credit as" }, { "docid": "13795644", "title": "", "text": "stated purpose of TILA: It is the purpose of this subchapter [15 U.S.C. § 1601 et seq.] to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices. 15 U.S.C. § 1601(a). Not disclosing the $2,000 cost of the 0.9% financing means customers are making uninformed credit decisions. I believe the failure of Bob Baker Ford to disclose the foregone rebate violates TILA. I would reverse. . Regulation Z, 12 C.F.R. § 226, is the Federal Reserve Board’s regulations implementing the Truth in Lending Act. Its purpose \"is to promote the informed use of customer credit by requiring disclosures about its terms and costs.” Id. at § 226.1(b). To augment Regulation Z the Board also issues Official Staff Interpretations. 12 C.F.R. Pt. 226, Supp. I. The Supreme Court has said that because \"Congress ... delegated expansive authority to the Federal Reserve Board to elaborate and expand the legal framework governing commerce in credit” that \"absent a clear expression to the contrary” deference is due the Board's interpretations of TILA. Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 559-60, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980). . Credit cards and other forms of open-ended credit are exempt from this rule. See 15 U.S.C. § 1666f(b). The Virachacks’ financing is a closed-end credit plan. See 12 C.F.R. § 226.2(a)(10) (defining closed-end credit); 12 C.F.R. § 226.2(a)(20) (defining open-end credit). . , The district court in Virachack adopted the reasoning of the only other federal court opinion on this issue Coelho v. Park Ridge Oldsmobile, Inc., 247 F.Supp.2d 1004 (D.Ill.2003). No federal court of appeals has yet ruled on this issue." }, { "docid": "21173728", "title": "", "text": "held that the absence of the requisite certificate by the district court requires a dismissal of the appeal. We observed that the right of appeal is not negated, but must await the discretionary certification by the trial court. Otherwise, it is not a final judgment from which an appeal to this court can be taken. Texas Eastern Transmission Corp. v. McDonald, 7 Cir., 198 F.2d 929, 931 (1952). Southern Parkway Corp. v. Lakewood Park Corp., 106 U.S.App. D.C. 372, 273 F.2d 107 (1959). Cf. Stevens v. Turner, 7 Cir., 222 F.2d 352 (1955). In this case, the appeal already having been taken to this court, the district court was without jurisdiction to enter the delayed certificate. Bush v. Unit ed Benefit Fire Insurance Company, 5 Cir., 311 F.2d 893, 894 (1963); Arnhold v. United States, 9 Cir., 225 F.2d 649 (1955); District 65, etc. v. McKague, 3 Cir., 216 F.2d 153, 155 (1954); see 6 Moore’s Federal Practice, 54.41 [4]. Appellants cite and rely upon Norris Manufacturing Company v. R. E. Darling Co., 4 Cir., 315 F.2d 633 (1963), as authority supporting the entry of the nunc pro tunc order in the instant case. In Norris, a judgment debtor appealed, contending that the judgment of the district court was not a final, appealable order. The appellee conceded on appeal that the orders of the district court, which were entered without an express determination that there was no just cause for delay, were a complete and final adjudication. In the instant case, the appellant did not raise the jurisdictional issue and is not attempting to avoid the effect of a judgment on the grounds of lack of finality. The appel-lee here has contested the jurisdiction of this court. There is no showing, as in Norris, that there had been a final adjudication of the claims tendered by ap-pellee’s amended counterclaim. In Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445, 449, 76 S.Ct. 904, 100 L.Ed. 1311 (1956) , the Supreme Court, giving recognition to the fact that the district court made a nunc pro tunc certification," }, { "docid": "23182964", "title": "", "text": "of Appellant at 4. On April 30,1979, the district court noted that the only remaining individual claim (that of Winnie Harris) had been settled, and ordered that this case in its entirety be dismissed from its active docket. Second Supplemental Record on Appeal at 3. The district court on July 9, 1979 entered an order approving the terms of the parties’ settlement of Harris’ claim. Id. at 4-5. This court at oral argument sua sponte questioned its jurisdiction to entertain this appeal in light of the plaintiff’s failure to secure Rule 54(b) certification from the district court. After appellate oral argument, the plaintiff applied to the district court for Rule 54(b) certification nunc pro tunc. On May 30, 1980, the district court issued the nunc pro tunc certification of its September 29, 1978 judgment as requested. Id. at 6-7. Appellate Jurisdiction This court has authority to entertain “appeals from all final decisions of the district courts of the United States.” 28 U.S.C. § 1291. Rule 54(b) provides that in actions involving multiple claims for relief or multiple parties, an order that disposes of one or more but fewer than all of the claims for relief asserted, or completely determines the rights and liabilities of one or more but fewer than all of the parties, does not end the action in the district court and is subject to revision at any time unless the district court has (1) expressly determined that there is no just reason for delay and (2) expressly directed entry of judgment. In the absence of a certification by the district court that meets these two requirements, a partial disposition of a multi-claim or multiparty action is ordinarily not a final appeal-able order. See generally 10 C. Wright & A. Miller, Federal Practice and Procedure §§ 2653-2660 (1973). In this case, the plaintiff’s counsel did not request Rule 54(b) certification from the district court of its September 29, 1978 order dismissing the plaintiff’s complaint while another individual plaintiff’s (Winnie Harris’s) claim remained to be considered by the district court. Usually if a Rule 54(b) certification has not been" }, { "docid": "8272520", "title": "", "text": "credit disclosures were not made to him at the time of the contracting, in that the contract was blank when he signed it. A contention that the purchaser was not made aware of a particular component of the cash price would not be cognizable in a suit brought under the Act. . When cross-examined as to how she could remember with such precision the date of a trailer’s delivery some ten months previously, Mrs. Partin admitted that she could not recall the exact delivery date of the latest trailer brought into her park, though one had been brought in “recently.” . The Board of Governors of the Federal Reserve System is authorized by 15 U.S.C.A. § 1604 to “prescribe regulations to carry out the purposes of this subchapter.” The regulations pertaining to Truth in Lending, popularly known as “Regulation Z”, are reported at 12 G.F.R. § 226.1 et seq. . The few eases construing this recent legislation are collected in an annotation, “Civil Remedies of Consumer for Violations of Truth in Lending Act,” 11 A.L.R.Fed. 815 (1972). . Plaintiff testified that his 1972 income was approximately $5000. He stated that he rented the mobile home for $90 per month, a yearly gross of $1080. It is unclear whether his net income from renting the mobile home was included in his total earnings estimate of $5000." }, { "docid": "12257037", "title": "", "text": "as Regulation Z, are set forth in Title 12 of the Code of Federal Regulations, 12 C.F.R. § 226.1, et seq. The TILA and the underlying regulations impose mandatory disclosure requirements on insti tutions extending credit to consumers and control what charges flowing from a credit transaction may be charged to a borrower. Under the TILA, federal and state courts have concurrent jurisdiction. See Title 15 U.S.C. § 1640(e). Section 1640(e) of the Act provides that: Any action under this section may be brought in any U.S. District Court, or in any other Court of competent jurisdiction ... (emphasis added). The above language connotes the bringing of an action as an initial matter in federal or state court. Consequently, an action based on alleged violations of the TILA is removable pursuant to Title 28 U.S.C. § 1441(b) because the district court has original jurisdiction over these matters under Title 15 U.S.C. § 1640(e). Pace v. Hunt, 847 F.Supp. 508, 509 (S.D.Miss.1994) (civil action is removable where there is concurrent original jurisdiction in both federal and state courts). Defendants’ removal of this case was proper because to vindicate plaintiffs putative state law claims, this court must necessarily construe the TILA. The TILA, Title 15 U.S.C. § 1601, et seq., requires institutions which extend credit to consumers to make certain disclosures related to credit transactions. Under the Truth in Lending Act, lenders are required to disclose certain financial details of their consumer credit contracts. The purpose is to insure “meaningful disclosure of credit terms so that the consumer will be able ... to avoid the uninformed use of credit_” Title 15 U.S.C. § 1601. As the Supreme Court has stated, the “Truth in Lending Act reflects a transition in congressional policy from a philosophy of ‘Let the buyer beware’ to one of ‘Let the seller disclose.’ ” Mourning v. Family Publications Serv., Inc., 411 U.S. 356, 377, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973). The Federal Reserve Board is empowered by the Truth in Lending Act to prescribe regulations carrying out the purpose of “meaningful disclosure.” Title 15 U.S.C. § 1631(a)-(b). Regulation" }, { "docid": "3004383", "title": "", "text": "MEMORANDUM DECISION CALLISTER, District Judge. I. INTRODUCTION This action arises out of a consumer credit transaction. On May 23, 1978, plaintiffs Martinez entered into a credit transaction with defendant Idaho First National Bank in order to refinance a 1973 Datsun which plaintiffs were buying from West Park Toyota in Ontario, Oregon. The transaction is evidenced by the defendant lender’s Sale and Loan Agreement. The plaintiffs subsequently filed suit alleging several violations of the Truth in Lending Act, 15 U.S.C. § 1601, et seq., and Federal Reserve Board Regulation Z, 12 C.F.R. § 226.1, et seq., which implements the Act. This Court’s jurisdiction is invoked pursuant to 15 U.S.C. § 1640(e) and 28 U.S.C. § 1337. The plaintiffs have now moved for summary judgment, contending that the defendant has violated the Truth in Lending Act (hereinafter “TILA”) as a matter of law in the following respects: 1. By failing to place the signature lines following the full content of the document and by failing to properly direct the consumers’ attention to both sides of the document in violation of Regulation Z, 12 C.F.R. § 226.8(a) and Official Federal Reserve Board Interpretation § 226.801. 2. By failing to disclose the amount or the method of computing the amount, of any default, delinquency, or similar charges in the event of late payments in violation of Regulation Z, 12 C.F.R. § 226.8(b)(4). 3. By failing to disclose a security interest in the insurance proceeds in violation of Regulation Z, 12 C.F.R. § 226.8(b)(5). 4. By failing to disclose that defendant’s security interest in the plaintiffs’ automobile could be used to secure “future indebtedness,” namely additions to the loan balance of expenditures for taxes and insurance in violation of Regulation Z, 12 C.F.R. § 226.8(b)(5). 5. By failing to disclose the method used to determine how much of the finance charge would be rebated in the event of prepayment in violation of Regulation Z, 12 C.F.R. § 226.8(b)(7). 6. By making disclosures not required under TILA which detracted from the disclosures which are required by TILA in violation of Regulation Z, § 226.6(c). 7. By" }, { "docid": "5302030", "title": "", "text": "that this one does not Second, the district court was without jurisdiction to enter the delayed certificate. One further suggested basis for concluding that the district court lacks jurisdiction to act, nunc pro tunc or otherwise under Rule 54, is that it has previously entered a final judgment under Rule 58. See Wright & Miller, supra, at 88. Hence, it is contended that where, as here, no final judgment complying with Rule 58 had been entered prior to the attempted nunc pro tunc certification under Rule 54, the district court was not divested of jurisdiction when it entered the certification. However, it is the filing of the appeal, not the entering of a final judgment, that divests the district court of jurisdiction. See, e. g., Rules 50(b), 52(b), 59(b), 59(d), 59(e), and 60(b), F.R.C.P.; 9 Moore, Federal Practice § 203.11. In fact, there is no final judgment until the Rule 54(b) certification has been entered, Austracan (U.S.A.) Inc. v. M/V Lemoncore, supra; McCormick v. Landrieu, supra. If the appeal did not deprive the district court of jurisdiction because it was premature, Turner v. HMH Publishing Co., 5 Cir. 1964, 328 F.2d 136, then there has never been a valid appeal from a final judgment. Nor could the parties now timely appeal from the July 26, 1977, or June 3, 1976, Rule 54(b) judgment. Rule 4, F.R.A.P. Hence, a new certification pursuant to Rule 54(b) and an appeal therefrom are required before this court may consider the merits of the Columbia appeal apart from the whole case. IV. Both parties to this appeal suggest that the failure to obtain the certification timely was inadvertent; a certification has, in fact, been obtained, and another certification will be readily obtainable. Therefore, it is undesirable, indeed a mere technicality, to dismiss the appeal and require the parties to make an unnecessary round trip to the trial court. The argument finds some support in the texts. See Wright & Miller, supra, § 2660, at 88- 89. Compare 9 Moore’s Federal Practice, supra, § 203.11, at 734. However, while it is clear that the district court" }, { "docid": "17125673", "title": "", "text": "permits such a decision to be appealed as a final judgment. The rule “is intended ‘to strike a balance between the undesirability of more than one appeal in a single action and the need for making review available in multiple-party or multiple-claim situations at a time that best serves the needs of the litigants.’” Day v. NLO, Inc., 3 F.3d 153, 155 (6th Cir.1993), quoting Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2654(1983). This court has not addressed the specific issue raised by Ohio Edison’s request— whether a Rule 54(b) certification obtained after the filing of a notice of appeal can validate a prematurely filed appeal. In the absence of a Rule 54(b) certification, an order disposing of fewer than all of the asserted claims is not appealable as a final judgment under 28 U.S.C. § 1291. The court has held that a Rule 54(b) certification entered nunc ;pro tunc to a time prior to the filing of the notice of appeal is sufficient to confer appellate jurisdiction. See Lewelling v. Farmers Ins. of Columbus, Inc., 879 F.2d 212, 214-15 (6th Cir.1989); COMPACT v. Metropolitan Gov’t of Nashville and Davidson County, 786 F.2d 227, 228 n. 1 (6th Cir.1986). However, other decisions of the court contain language that a belated certification under the rule cannot cure the lack of a Rule 54(b) certification. See Haskell v. Washington Township, 891 F.2d 132, 133 (6th Cir.1989); Oak Construction Co. v. Huron Cement Co., 475 F.2d 1220, 1221 (6th Cir.1973). Closer review indicates that such statements are dicta. We now hold that a premature notice of appeal ripens upon the entry of a proper Rule 54(b) certification, regardless of whether the certification is entered nunc pro tunc. This holding is consistent with the majority of our sist^p circuits that have addressed this issue. See Clausen v. Sea-3, Inc., 21 F.3d 1181, 1184-85 (1st Cir.1994); Harrison v. Edison Bros. Apparel Stores, Inc., 924 F.2d 530, 532 (4th Cir.1991); Lewis v. B.F. Goodrich Co., 850 F.2d 641, 643-45 (10th Cir.1988) (en banc); Martinez v. Arrow Truck Sales, Inc., 865 F.2d 160," }, { "docid": "17427199", "title": "", "text": "191, 198 (2d Cir.2001) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). A court deciding a motion to dismiss pursuant to Rule 12(b)(6) must accept as true all factual allegations contained in the complaint and draw all inferences in favor of the non-moving party. Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 154 (2d Cir.2006). Nevertheless, the court “need not accord legal conclusions, deductions or opinions couched as factual allegations ... a presumption of truthfulness.” In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir.2007) (citation and internal quotation marks omitted). In deciding a motion to dismiss, the court is not limited to the face of the complaint, but may also consider “documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.2010) (citations omitted). II. Analysis A. Claims Under the Truth in Lending Act 1. The Truth in Lending Act The Truth in Lending Act, 15 U.S.C. § 1601 et seq. (“TILA”), was enacted by Congress “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices.” 15 U.S.C. § 1601(a); see Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998). In enacting TILA, Congress delegated authority to the Federal Reserve Board of Governors to promulgate implementing regulations and interpretations, known as Regulation Z. See 15 U.S.C. § 1604(a); see also 12 C.F.R. § 226 et seq. In general, TILA requires creditors to provide borrowers clear, conspicuous, and accurate disclosures of the loan terms and other material information. See 15 U.S.C. § 1632. The required material disclosures include, but are not limited to, the amount financed, the annual percentage rate, the finance charge, the total of payments, and the payment schedule. See 12 C.F.R. § 226.18; see" }, { "docid": "23182963", "title": "", "text": "district court entered an order confirming settlement of the individual claims of 143 members of the class: 103 class members received 15% re ductions and 40 class members rescinded and received damages. Only the individual claims of two class members, Ms. Moss and Winnie Harris, remained in dispute after August 18, 1978. The defendant thereafter filed a motion for summary judgment as to Ms. Moss’ individual claim, alleging that her claim was not a consumer credit transaction and was therefore exempt from Truth in Lending Act coverage. On September 29, 1978, the district court rendered its decision granting the defendant’s motion for summary judgment as to the plaintiff’s Truth in Lending Act claims and striking the plaintiff’s pendent state claims. The district court on that same day entered a separate judgment against the plaintiff. The plaintiff filed a notice of appeal from this judgment on October 26, 1978. Through inadvertence, however, counsel for the plaintiff did not request Federal Rule of Civil Procedure 54(b) certification from the district court before lodging this appeal. Supplemental Brief of Appellant at 4. On April 30,1979, the district court noted that the only remaining individual claim (that of Winnie Harris) had been settled, and ordered that this case in its entirety be dismissed from its active docket. Second Supplemental Record on Appeal at 3. The district court on July 9, 1979 entered an order approving the terms of the parties’ settlement of Harris’ claim. Id. at 4-5. This court at oral argument sua sponte questioned its jurisdiction to entertain this appeal in light of the plaintiff’s failure to secure Rule 54(b) certification from the district court. After appellate oral argument, the plaintiff applied to the district court for Rule 54(b) certification nunc pro tunc. On May 30, 1980, the district court issued the nunc pro tunc certification of its September 29, 1978 judgment as requested. Id. at 6-7. Appellate Jurisdiction This court has authority to entertain “appeals from all final decisions of the district courts of the United States.” 28 U.S.C. § 1291. Rule 54(b) provides that in actions involving multiple claims for relief" }, { "docid": "13979415", "title": "", "text": "no reason to believe that Lilly is prejudiced by appellants’ appeal. Most circuits have ruled that certification is sufficient to validate a premature notice of appeal. See generally Freeman v. Hittle, 747 F.2d 1299 (9th Cir.1984); Local P-171, Amalgamated Meat Cutters & Butcher Workmen v. Thompson Farms Co., 642 F.2d 1065 (7th Cir.1981); Metallurgical Industries, Inc. v. Fourtek, Inc., 771 F.2d 915 (5th Cir.1985) (when the only purpose of the district court’s certificate is to make an order appealable after the filing of a previous notice of appeal, it is not necessary to file a new notice of appeal); Leonhard v. United States, 633 F.2d 599 (2d Cir.1980) (in the absence of prejudice to the non-appealing party, the court declined to dismiss premature notices of appeal,where subsequent actions of the district court imbued the order appealed from with finality); 10 Wright, Miller and Kane, Federal Practice and Procedure: Civil Rules § 2660 (1986) at 9-10; but see A.O. Smith Corporation v. Sims Consolidated Ltd., 647 F.2d 118 (10th Cir.1981) (the court concluded that an appeal from an unappealable order cannot be saved by retroactive entry of final judgment in the district court under Rule 54(b)). The Supreme Court, moreover, has permitted belated certification in an analogous context involving 28 U.S.C. § 1292(b). See Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373,105 S.Ct. 1327, 84 L.Ed.2d 274 (1985). In Southern Parkway Corporation v. Lakewood Park Corporation, 273 F.2d 107 (D.C.Cir.1959), this court explicitly reversed its former position to hold broadly that nunc pro tunc compliance with Rule 54(b) would not suffice. The opinion in Southern, however, specifically addresses only whether the court should remand for a nunc pro tunc certification when none has been made and the case argued on appeal. In the instant case, a Rule 54(b) certification was obtained prior to this court addressing the merits of the case. Dismissal of the appeal because the certification was belated would result in what one court called mere “empty paper shuffling.” Thompson Farms Co., 642 F.2d at 1074. In Thompson Farms Co., the court concluded by noting that: [W]hen" }, { "docid": "873712", "title": "", "text": "REGAN, District Judge. At issue is whether the Truth in Lending Act, 15 U.S.C. §§ 1601 et seq. (1976), and Federal Reserve Board Regulation Z, 12 C.F.R. §§ 226.1 — .15 (1977), mandate disclosure of an acceleration clause in a retail installment contract. The district court, the Honorable Earl R. Larson, ruled this question in the affirmative. We reverse. The material facts are not in dispute. Plaintiff contracted with Superior Ford for the purchase of a new automobile, the purchase being financed with Ford Motor Credit Company. The contract form contains on the front a disclosure statement, including one concerning delinquency charges on installments in default and one pertaining to rebate of the unearned portion of the finance charge in the event the buyer prepays in full his obligations under the contract prior to the maturity of the final installment thereunder. On the reverse side of the contract is a provision which in certain events, including default in any payment, authorizes but does not require the creditor to declare all amounts due or to become due “immediately due and payable.” This acceleration clause was not disclosed on the face of the contract. Plaintiff’s recovery of $1,000 damages and attorney’s fees is based solely on this omission. There is no contention that at the time this suit was brought plaintiff was in default or that defendants had utilized the acceleration clause. The Truth in Lending Act is unquestionably remedial legislation, the expressed purpose of which is “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” 15 U.S.C. § 1601. The Act sets forth certain specific items and credit terms which the creditor must disclose to the credit customer, together with the time and method of such disclosure. Id. § 1638(a), (b). The Board of Governors of the Federal Reserve System is directed to prescribe regulations to carry out and implement the purposes of the Act, Id. § 1604, and in carrying out this directive the Board has" }, { "docid": "23182973", "title": "", "text": "(1975). In the first instance, the district court in its discretion on remand should decide whether the plaintiff’s pendent claims should be reinstated. . Accordingly, we leave for yet another day consideration of plaintiffs alternative contention that the appeal should not be dismissed since the failure to obtain the Rule 54(b) certificate was allegedly inadvertent and the district court has now entered the required certificate nunc pro tunc. This court in 1963 held that belatedly entered Rule 54(b) certificates would not retroactively confer appellate jurisdiction in these situations, since the district court was without jurisdiction to enter the delayed certificate. Bush v. United Benefit Fire Insurance Company, 311 F.2d 893 (5th Cir. 1963). More recently, this court questioned the wisdom of the Bush holding and noted that some commentators support giving retroactive effect to Rule 54(b) nunc pro tunc certificates. Kirtland v. McDermott & Co., 568 F.2d 1166, 1170 (5th Cir. 1978). See 10 C. Wright & A. Miller, Federal Practice and Procedure § 2660 at 88-89 (1973). . The Truth in Lending Act is subchapter 1 of the Consumer Credit Protection Act, 15 U.S.C. §§ 1601-1667. The Board of Governors of the Federal Reserve System is authorized by 15 U.S.C. § 1604 to “prescribe regulations to carry out the purpose of this subchapter.” Pursuant to this authority, the Board has issued an interpretative regulation, popularly referred to as “Regulation Z.” 12 C.F.R. §§ 226.1-.1503. See generally, “Civil Remedies of Consumer for Violations of Truth in Lending Act,\" 11 A.L.R. Fed. 815 (1972). For a recent appraisal of the Truth in Lending Act, see Lander & Rohner, A Functional Analysis of Truth in Lending, 26 UCLA L.Rev. 711 (1979). . While prior jurisprudence is an aid to classification, the nature of the credit transaction is ultimately determined by the entire surrounding factual circumstances. See, e. g., Poe v. First National Bank of DeKalb County, supra (purpose of loan transaction was to finance corporation, and thus transaction is commercial, notwithstanding that individual debtors joined in note and gave personal security); Gerasta v. Hibernia Nat'l Bank, 411 F.Supp. 176, 185 (E.D.La.1975), modified," }, { "docid": "22445423", "title": "", "text": "occurs at the time such disclosure is first required to be made, or whether it is a continuing violation until such time as the disclosure is actually made. In order to decide this question we must examine the overall purpose of the Act as well as the particular sections referred to in the complaint. The purpose of Congress in enacting the Truth in Lending Act is set forth in 15 U.S.C. § 1601 as follows: § 1601. Congressional findings and declaration of purpose The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit. Pursuant to § 1604 the Board of Governors of the Federal Reserve System issued its Regulation Z (12 CFR § 226 (1969)) which provides, in part, as follows : REGULATION Z PART 226 — TRUTH IN LENDING § 226.1 Authority, scope, purpose, etc. (a) Authority, scope, and purpose. (1) This part comprises the regulations issued by the Board of Governors of- the Federal Reserve System pursuant to title I (Truth in Lending Act) and title V (General Provisions) of the Consumer Credit Protection Act, as amended (15 U.S.C. Section 1601 et seq.). Except as otherwise provided herein, this part applies to all persons who in the ordinary course of business regularly extend, or offer to extend, or arrange, or offer to arrange, for the extension of consumer credit as defined in paragraph (k) of § 226.2 and to all persons who issue credit cards. (2) This part implements the Act, the purpose of which is to assure that every customer who has need for consumer credit is given meaningful information with respect to the cost of" }, { "docid": "23182974", "title": "", "text": "subchapter 1 of the Consumer Credit Protection Act, 15 U.S.C. §§ 1601-1667. The Board of Governors of the Federal Reserve System is authorized by 15 U.S.C. § 1604 to “prescribe regulations to carry out the purpose of this subchapter.” Pursuant to this authority, the Board has issued an interpretative regulation, popularly referred to as “Regulation Z.” 12 C.F.R. §§ 226.1-.1503. See generally, “Civil Remedies of Consumer for Violations of Truth in Lending Act,\" 11 A.L.R. Fed. 815 (1972). For a recent appraisal of the Truth in Lending Act, see Lander & Rohner, A Functional Analysis of Truth in Lending, 26 UCLA L.Rev. 711 (1979). . While prior jurisprudence is an aid to classification, the nature of the credit transaction is ultimately determined by the entire surrounding factual circumstances. See, e. g., Poe v. First National Bank of DeKalb County, supra (purpose of loan transaction was to finance corporation, and thus transaction is commercial, notwithstanding that individual debtors joined in note and gave personal security); Gerasta v. Hibernia Nat'l Bank, 411 F.Supp. 176, 185 (E.D.La.1975), modified, 575 F.2d 580 (5 th Cir. 1978) (second mortgage on future intended residence is consumer transaction); Adema v. Great N. Dev. Co., 374 F.Supp. 318, 319 (N.D.Ga.1973) (lot purchases for investment reasons are commercial transactions); Puckett v. Georgia Homes, Inc., 369 F.Supp. 614, 619 (D.S.C.1974) (purchase of home for intended rental purpose is commercial transaction); Sapenter v. Dreyco, Inc., 326 F.Supp. 871, 873 (E.D.La.), affd., 450 F.2d 941 (5th Cir. 1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1775, 32 L.Ed.2d 120 (1972) (second mortgage on residence to meet payments on rental property is commercial transaction); Allen v. City Dodge, Inc., 5 Cons. Cred. Guide (CCH) 1:98,428 (N.D.Ga. Sept. 8, 1975) (truck purchase for personal as well as business use is a consumer credit transaction)." }, { "docid": "5302027", "title": "", "text": "“upon a decision by the court . . . that all relief shall be denied” that the Clerk of Court “unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court . . . .” Rule 54(b) orders, however, require the exercise of judicial discretion and the text of the Rule provides that, in the absence of a judicial determination to enter a final judgment, the order or decree remains interlocutory. The logical distinction for the difference in results is predicated on the terms of the rules. Moreover, the problem is not one for pristine fervor; the result is determined by the prior decisions of other panels of the circuit. III. If Rule 54(b) has not been complied with at the time the appeal is filed, the usual practice of the circuit courts is to dismiss the appeal. See 6 Moore, Federal Practice § 54.41(4), 772-773, and 10 Wright & Miller, Federal Practice & Procedure § 2660, at 88-89. As these authors point out, when the problem first arose some appellate courts did retain the case on their dockets and allowed the parties to seek a nunc pro tunc certification from the trial court. See Vale v. Bonnett, 1951, 89 U.S.App.D.C. 116, 191 F.2d 334; compare Kaufman & Ruderman v. Cohn & Rosenberger, 2 Cir. 1949, 177 F.2d 849, 850, where the court of appeals had already affirmed the decision below on the merits and then expressly permitted the district court to enter a nunc pro tunc certification. See also, Cold Metal Process Co. v. United Eng. & Fdry. Co, 1956, 351 U.S. 445, 449-450, 76 S.Ct. 904, 907, 100 L.Ed. 1311. That practice has apparently been disapproved by every court to consider the matter since 1954. TMA Fund, Inc. v. Biever, 3 Cir. 1975, 520 F.2d 639, 642, note 4; Oak Construction Co. v. Huron Cement Co., 6 Cir. 1973, 475 F.2d 1220; Williams v. Bernhardt Bros. Tugboat Service, Inc., 7 Cir. 1966, 357 F.2d 883; Wolfson v. Blumberg, 2 Cir. 1965, 340 F.2d 89; Bush v. United Benefit Fire" } ]

[ { "docid": "22418113", "title": "", "text": "duty of the Circuit Court of Appeals to consider and pass upon.” Rexford v. Brunswick-Balke Co., 228 U.S. 339, 343-344, 33 S.Ct. 515, 57 L.Ed. 864 (1913); United States v. Vasi-lick, 160 F.2d 631, 632 (3 Cir. 1947). . Berkshire Employees Ass’n, Etc. v. National Labor R. Bd., 121 F.2d 235, 238-239 (3 Cir. 1941). . 102 U.S.App.D.C. 391, 392, 254 F.2d 90, 91 (1958). . North American Airlines v. Civil Aeronautics Board, 100 U.S.App.D.C. 5, 12, 240 F.2d 867, 874 (1956), cert. denied, 353 U.S. 941, 77 S.Ct. 815, 1 L.Ed.2d 760 (1957). . Neisloss v. Bush, 110 U.S.App.D.C. 396, 402, 293 F.2d 873, 879 (1961); Massachusetts Bay Telecasters v. F. C. C., 104 U.S. App.D.C. 226, 261 F.2d 55 (1958); WKAT, Inc. v. F. C. C., 103 U.S.App. D.C. 324, 258 F.2d 418 (1958). . R. A. Holman & Co. v. Securities and Exchange Commission, supra text; and see 17 C.F.R. §§ 200.62, 201.11 (Supp. 1962). . Federal Radio Comm’n v. Nelson Bros. Co., 289 U.S. 266, 277, 53 S.Ct. 627, 72 L.Ed. 1166 (1933). . And not by way of review of the Commission’s orders. Cf. Farmer v. United Electrical, Radio & Machine Workers, 93 U.S.App.D.C. 178, 181, 182, 211 F.2d 36, 39, 40 (1953), cert. denied, 347 U.S. 943, 74 S.Ct. 638, 98 L.Ed. 1091 (1954). . This case does not present a “rule of necessity” situation. Cf. Marquette Cement Mfg. Co. v. Federal Trade Commission, 147 F.2d 589, 593, 594 (7 Cir. 1945). And see Federal Trade Comm’n v. Cement Institute, 333 U.S. 683, 700, 703, 68 S.Ct. 793, 92 L.Ed. 1010 (1948). . 15 U.S.C.A. § 78b. . It may be noted the Commission in April 11, 1962 order deemed it advisable1 to issue a “restatement of relevant issues” and otherwise defined the future scope of the proceedings and the nature of the evidence deemed relevant to its purposes. It is not our function nor within the ambit of our authority with the case in its present posture to pass on that order, and we expressly refrain from doing so. Should new proceedings be" } ]

[ { "docid": "9707636", "title": "", "text": "453, 58 S.Ct. 656, 82 L.Ed. 954; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; National Labor Relations Board v. Fainblatt, 306 U.S. 601, 307 U.S. 609, 59 S.Ct. 668, 83 L.Ed. 1014; Coronado Coal Co. v. United Mine Workers, 268 U.S. 295, 45 S.Ct. 551, 69 L.Ed. 963; Local 167 v. United States, 291 U.S. 293, 54 S.Ct. 396, 78 L.Ed. 804; Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 43 S.Ct. 470, 67 L.Ed. 839; Houston, E. & W. Texas Ry. Co. v. United States (Shreveport Case), 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341; Southern R. Co. v. United States, 222 U.S. 20, 32 S.Ct. 2, 56 L. Ed. 72; Baltimore & Ohio R. Co. v. Interstate Commerce Comm., 221 U.S. 612, 31 S.Ct. 621, 55 L.Ed. 878; Jacob Ruppert, Inc., v. Caffey, 251 U.S. 264, 40 S.Ct. 141, 64 L. Ed. 260; Everard’s Breweries v. Day, 265 U.S. 545, 44 S.Ct. 628, 68 L.Ed. 1174; Westfall v. United States, 274 U.S. 256, 47 S.Ct. 629, 71 L.Ed. 1036; Railroad Commission of State of Wisconsin v. Chicago, B. & Q. R. Co., 257 US. 563, 42 S.Ct. 232, 66 L.Ed. 371, 22 A.L.R. 1086; United States v. New York Central R. Co., 272 U.S. 457, 464, 47 S.Ct. 130, 71 L.Ed. 350; Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441; Thornton v. United States, 271 U.S. 414, 46 S.Ct. 585, 70 L.Ed. 1013; United States v. Rock Royal Co-op., 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446. But 1 know of no case, and Plaintiff cites none, which goes so far as to hold that where the facts are as here stipulated, Congress has in this Act undertaken to do so. The holding in Super-Cold Southwest Co. v. McBride, supra; Jax Beer Co. v. Redfern, supra; Swift & Co. v. Wilkerson, supra; and Klotz v. Ippolito, supra, is to the contrary. From what has been said, it follows that judgment must be rendered" }, { "docid": "15905993", "title": "", "text": "violation of the Act and the Board’s Economic-Regulations, “involving the holding out and operation of regular services in air transportation between designated points without authority.” The foregoing allegations were admitted by an amended answer filed in behalf of “Twentieth Century Air Lines, Inc., Trans National Airlines, Inc., Trans American Airways, Inc., North American Aireoaeh System, Inc., Stanley D. Weiss, James Fisehgrund, Jack B. Lewin and R. R. Hart, individually and as partners, d. b. a. Republic Aircoach System, also d. b. a. Twentieth Century Aircraft Company, also d. b. a. California Aircraft Company- and Stanley D. Weiss and James Fischgrund, as partners, d. b. a. Standard Air-motive Company.” . 49 U.S.C. § 481(h). . § 292.1(d) (5). . 49 U.S.C. § 642(c); and as to violations of Section 408(a) of the Act, 49 U.S.C. § 488(a), see 49 U.S.C. § 488(e). . 14 C.F.R. Part 291 (1952). . Marquette Cement Mfg. Co. v. Federal Trade Commission, 7 Cir., 1945, 147 F.2d 589; cf. Federal Trade Commission v. Cement Institute, 1948, 333 U.S. 683, 700-703, 68 S.Ct. 793, 92 L.Ed. 1010; Hammond v. Hull, 1942, 76 U.S.App.D.C. 301, 306, 131 F.2d 23, 28, certiorari denied, 1943, 318 U.S. 777, 63 S.Ct. 830, 87 L.Ed. 1145; United States v. L. A. Tucker Truck Lines, 1952, 344 U.S. 33, 36-37, 73 S.Ct. 67, 97 L.Ed. 54; Colonial Airlines Case, 1949, 9 C.A.B. 273. . United States v. Morgan, 1941, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429; National Labor Relations Bd. v. Botany Worsted Mills, 3 Cir., 1939, 106 F.2d 263; Federal Trade Commission v. Cement Institute, supra note 23." }, { "docid": "22462613", "title": "", "text": "the carrier pursuant to § 4(e) of the National Gas Act, 15 U.S.C. § 717c (e), had gone into effect at the end of the suspension period, subject to a refund obligation. These rate increases were later superseded, thus becoming “locked-in.” The Commission terminated the § 4(e) proceedings, thus allowing the rate increases to remain effective during the “locked-in” period, when it found that the increased revenues generated by the higher fares had not been sufficient to cover the company’s computed cost of service for the historical test period, and thus that no refunds were due. The Supreme Court affirmed, 373 U.S. at 304-306, 83 S.Ct. 1266, 10 L.Ed.2d 357. See also Michigan Wisconsin Pipe Line Co. v. FPC, 263 F.2d 553, 555-556 (6th Cir. 1959). . West Ohio Gas Co. v. Public Utils. Comm’n, 294 U.S. 79, 82, 55 S.Ct. 324, 79 L.Ed. 773 (1935); see Trans World Airlines, Inc. v. CAB, 128 U.S.App.D.C. 126, 134, 385 F.2d 648, 656 (1967), cert. denied 390 U.S. 944, 88 S.Ct. 1029, 19 L.Ed.2d 1133 (Mar. 5, 1968); Summerfield v. CAB, 92 U.S.App.D.C. 248, 252-253, 207 F.2d 200, 203-205 (1953), aff’d sub nom. Western Airlines, Inc. v. CAB, 347 U.S. 67, 74 S.Ct. 347, 98 L.Ed. 508 (1954). . See Wisconsin v. FPC, supra note 95; Smith v. Illinois Bell Tel. Co., 282 U.S. 133, 142, 161-162, 51 S.Ct. 65, 75 L.Ed. 255 (1930); Southwestern Bell Tel. Co. v. Kansas State Corp. Comm’n, 53 P.U.R.3d 337 (Kan.Sup.Ct.1964); City of Pittsburgh v. Pennsylvania Pub. Utils. Comm’n, 169 Pa.Super. 400, 82 A.2d 515, 519-520 (1951). But see State Corp. Comm’n of Kansas v. FPC, 215 F.2d 176, 183-184 (8th Cir. 1954). . That is, the period during which Order No. 245, In re D.C. Transit Sys., Inc., supra note 2, was in effect. See notes 90, 91, supra. . In re D.C. Transit Sys., Inc. (Order No. 684), supra note 34; see text accompanying notes 114, 115, supra. . Atlantic Coast Line R.R. v. State of Florida, supra note 96, 295 U.S. at 317, 55 S.Ct. at 720, 79 L.Ed. 1451. . See Transit" }, { "docid": "22160484", "title": "", "text": "of the Administratqr as to the facts, if supported by substantial evidence, shall be conclusive.” The same result is reached by the Administrative Procedure Act, 5 U.S.C.A. § 1009, where the reviewing court is directed to “set aside agency action, findings, and conclusions found to be * * * (5) unsupported by substantial evidence * * * subject to the requirements of sections 1006 and 1007 * * Sections 1006 and 1007 involve hearings and procedure in cases of rule making, § 1003, and adjudication, § 1004. That this is the purpose of the Administrative Procedure Act see Attorney General’s Manual, supra, p. 93 and reference to section 10(e), p. 230 Senate Doe. 248, supra. Consolidated Edison Co. v. National Labor Relations Board, 1938, 305 U.S. 197, 229-230, 59 S.Ct. 206, 217, 83 L.Ed. 126. Ibid. 305 U.S. at page 229, 59 S.Ct. at page 217, 83 L.Ed. 126. See discussions in Pennsylvania R. Co. v. Chamberlain, 1932, 288 U.S. 333, 339-343, 53 S. Ct. 391, 77 L.Ed. 819; Ballston-Still-water Knitting Co. ,v. National Labor Relations Board, 2 Cir., 1938, 98 E.2d 758, 760; N. L. R. B. v. Thompson Products, 6 Cir., 1938, 97 E.2d 13, 15; Appalachian Electric Power Co. v. N. L. R. B., 4 Cir., 1938, 93 F.2d 985, 989; see also Daniels, Jud. Review of Fact Findings of the Federal Trade Commission, 14 Wash.L.Rev. 37 (1939). Washington, Virginia & Maryland Coach Co. v. N. L. R. B., 1937, 301 U.S. 142, 147, 57 S.Ct. 648, 81 L.Ed. 965; Del Vecchio v. Bowers, 1935, 296 U.S. 280, 287, 56 S.Ct. 190, 80 L.Ed. 229; State of Florida v. United States, 1934, 292 U.S. 1, 12, 54 S.Ct. 603, 78 L.Ed. 1077; Federal Trade Commission v. Algoma Lumber Co., 1934, 291 U.S. 67, 73, 54 S.Ct. 315, 78 L.Ed. 655. Cf. N. L. R. B. v. Norfolk Shipbuilding & Drydock Corp., 4 Cir., 1940, 109 F.2d 128, 130; N. L. R. B. v. Empire Furniture Corp., 6 Cir., 1939, 107 F.2d 92, 94; Appalachian Electric Power Co. v. N. L. R. B., supra, footnote 24. 9 Cir.," }, { "docid": "1988754", "title": "", "text": "v. Finn, 341 U.S. 6, 16-18, 71 S.Ct. 534, 95 L.Ed. 702 (1951) ; Mansfield, C. & L. M. Ry. v. Swan, 111 U.S. 379, 382-386, 4 S.Ct. 510, 28 L.Ed. 462 (1884); Page v. Wright, 116 F.2d 449 (7th Cir. 1940), cert. dismissed, 312 U.S. 710, 61 S.Ct. 831, 85 L.Ed. 1142 (1941). See also Arrowsmith v. United Press International, 320 F.2d 219, 221 (2d Cir. 1963). . 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948). . Id. at 193. . See Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 167-168, 60 S. Ct. 153, 84 L.Ed. 167 (1939) ; Robertson v. Railroad Labor Bd., 268 U.S. 619, 622-623, 45 S.Ct. 621, 69 L.Ed. 1119 (1925) ; Goldstone v. Payne, 94 F.2d 855 (2d Cir.), cert. denied, 304 U.S. 585, 58 S. Ct. 1057, 82 L.Ed. 1547 (1938). See also People’s Bank v. Calhoun, 102 U.S. 256, 260-261, 26 L.Ed. 101 (1880). . But cf. United States ex rel. Rudick v. Laird, 412 F.2d 16, 20 (2d Cir.), cert. denied, 396 U.S. 918, 90 S.Ct. 244, 24 L.Ed.2d 197 (1969). . Act of September 19, 1966, Pub.L. No. 89-590, 80 Stat. 811. . See S.Rep. No. 1502, 89th Cong., 2d Sess. (1966). . As this court is not one of those two districts, see page 802 supra, the transfer provision of section 2241(d) is not available for transfer to a proper district. United States ex rel. Griffin v. LaVallee, 270 F.Supp. 531 (E.D.N.Y.1967). . Cf. United States ex rel. Rudick v. Laird, 412 F.2d 16, 20 (2d Cir.), cert. denied, 396 U.S. 918, 90 S.Ct. 244, 24 L.Ed.2d 197 (1969). . See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962) ; Hohensee v. News Syndicate, Inc., 369 U.S. 659, 82 S.Ct. 1035, 8 L.Ed.2d 273 (1962) (per curiam), vacating 286 F.2d 527 (3d Cir. 1961) ; Taylor v. Love, 415 F.2d 1118 (6th Cir. 1969) cert. denied. 397 U.S. 1023, 90 S.Ct. 1257, 25 L.Ed.2d 533 (1970) ; Mayo Clinic v. Kaiser, 383 F.2d 653 (8th Cir. 1967) ; Dubin" }, { "docid": "21542168", "title": "", "text": "court had jurisdiction under the Administrative-Procedure Act, 60 Stat. 243, 5 U.S.C.A.. § 1009. . This interlocutory injunction did not affect the Board’s grant of a hearing after institution of the dual rate system agreement. We are advised that such a hearing is now in progress. . 1953, 345 U.S. 975, 73 S.Ct. 1122, 97 L.Ed. 1391. . This section provides that the action in court, by an aggrieved party for review of a final administrative order of the Maritime Board, “shall be brought against the United States.” 64 Stat. 1130 (1950), 5 U.S.C.A. § 1034. . 26 Stat. 209 (1890), as amended, 15 U.S. C.A. .§ 1 et seq. . See note 9 supra. . Columbia Broadcasting System v. United States, 1942, 316 U.S. 407, 425, 62 S.Ct. 1194, 86 L.Ed. 1563. See also Powell v. United States, 1937, 300 U.S. 276, 284-285, 57 S.Ct. 470, 81 L.Ed. 643; and B. F. Goodrich Co. v. Federal Trade Comm., 1953, 93 U.S.App.D.C. -, 208 F.2d 829, 833-834. . Chicago & Southern Air Lines v. Waterman Steamship Corp., 1948, 333 U.S. 103, 113, 68 S.Ct. 431, 92 L.Ed. 568; see also Philadelphia Co. v. Securities and Exchange Comm., 1947, 82 U.S.App.D.C. 335, 343-346, 164 F.2d 889, 897-900, certiorari denied 1948, 333 U.S. 828, 68 S.Ct. 452, 92 L.Ed. 1113; Pollak v. Public Utilities Comm., 1951, 89 U.S.App. D.C. 94, 98, 191 F.2d 450, 454, reversed on other grounds, 1952, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068. . Algonquin Gas Transmission Co. v. Federal Power Comm., 1 Cir., 1953, 201 F.2d 334, 337; see also Columbia Broadcasting System v. United States, note 15 supra; Rochester Telephone Corp. v. United States, 1939, 307 U.S. 125, 143-144, 59 S.Ct. 754, 83 L.Ed. 1147; Phillips v. Securities and Exchange Comm., 2 Cir., 1948, 171 F.2d 180, 183. . Board’s brief, p. 11. . Joint Anti-Fascist Refugee Committee v. McGrath, 1951, 341 U.S. 123, 175, 71 S.Ct. 624, 95 L.Ed. 817 (Concurring opinion of Mr. Justice Douglas). . Farmer v. United Electrical Radio & Machine Workers, 1953, 93 U.S.App. D.C. -, 211 F.2d 36." }, { "docid": "957672", "title": "", "text": "; National Labor Relations Board v. National Laundry Co., 78 U.S.App.D.C. 184, 138 F.2d 589 (L.C.Cir., 1943); California Lumbermen’s Council v. Federal Trade Comm., 103 F.2d 304 (9 Cir., 1939). . Mississippi Valley Structural Steel Co. v. National Labor Relations Board, 145 F.2d 664 (1944). . Pub.L. No. 85-269, 71 Stat. 595 (1957), 18 U.S.C.A. § 3500. . Title I of the Internal Security Act of 1950, 64 Stat. 987, 50 U.S.C.A. § 781 et seq. . 64 Stat. 998, 50 U.S.C.A. § 792. . 60 Stat. 237 (1946), as amended, 5 U.S.C.A. § 1001 et seq. . Federal Communications Comm’n v. Pottsville Broadcasting Co., 309 U.S. 134, 143-144, 60 S.Ct. 437, 84 L.Ed. 656 (1940). . Fed.R.Civ.P. 34, 28 U.S.C.A.; Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957); Pub.L.No. 85-269, 71 Stat. 595 (1957), 18 U.S.C.A. § 3500. . Although the request for production of Markward’s F.B.I. report on the Frank-feld statement was made at the original hearing, the Party preserved this point on appeal by its motion of August 17, 1956, to adduce additional evidence, . Supra note 19. . See 3 Wigmore, Evidence § 1010 (3d ed. 1940). . Supra note 3, 351 U.S. at page 125, 76 S.Ct. at page 668." }, { "docid": "12750332", "title": "", "text": "who had previously testified, in addition to any new evidence the parties wished to adduce. Appellants never asked to re-present all or part of the evidence to the court, and when the court gave them the opportunity, they failed to take advantage of it. They chose only to produce on a minor matter an expert, who had testified before the commission, in order to supplement the testimony previously given; and also to introduce several affidavits relating to matters not touched upon before the commission. When appellants, having been given an opportunity for a full hearing which they refused to take advantage of, merely insisted that they were entitled to have the discharged commission decide the case, the court was perfectly justified in deciding the case on the basis of the record made before the commission. Although the Supreme Court has said that “one who decides must hear,” Morgan v. United States, 1936, 298 U.S. 468, 481, 56 S.Ct. 906, 80 L.Ed. 1288, it is well established that the due process clause does not require under all circumstances that factual determinations be made by the person hearing the evidence. National Labor Relations Board v. Mackay Radio & Telegraph Co., 1938, 304 U.S. 333, 350, 58 S.Ct. 904, 82 L.Ed. 1381; Morgan v. United States, supra, 298 U.S. at pages 480-482, 56 S.Ct. at pages 911, 912; De La Rama v. De La Rama, 1916, 241 U.S. 154, 36 S.Ct. 518, 60 L.Ed. 932; D. M. W. Contracting Co. v. Stolz, 1946, 81 U.S.App.D.C. 334, 158 F.2d 405, certiorari denied 1947, 330 U.S. 839, 67 S.Ct. 980, 91 L.Ed. 1286; Eastland Co. v. Federal Communications Comm., 1937, 67 App.D.C. 316, 92 F.2d 467, certiorari denied 1937, 302 U.S. 735, 58 S.Ct. 120, 82 L.Ed. 568; United States ex rel. Minuto v. Reimer, 2 Cir., 1936, 83 F.2d 166; Crow v. Industrial Comm., 1943, 104 Utah 333, 140 P.2d 321, 148 A.L.R. 316. Cf. Smith v. Dental Products Co., 7 Cir., 1948, 168 F.2d 516; S. Buchsbaum & Co. v. Federal Trade Comm., 7 Cir., 1946, 153 F.2d 85, certiorari granted, and judgment" }, { "docid": "4509852", "title": "", "text": "FRANK, Circuit Judge. In answer to a petition by the National Labor Relations Board for enforcement of its order against respondent, the latter asserts that it was denied a fair and impartial hearing, that the Board’s findings of fact are not based on substantial evidence, and that changed circumstances have made enforcement of the Board's order unjust and inequitable. Respondent rests its contention as to the absence of a fair and impartial hearing on the alleged bias of the trial examiner. That would be a serious matter, if there was such bias and (equally important) if it affected, or probably affected, the Board’s findings and order. Cf. Ohio Bell Tel. Co. v. Public Utilities Commission, 301 U.S. 292, 304, 305, 57 S.Ct. 724, 81 L.Ed. 1093; Tumey v. Ohio, 273 U.S. 510, 523, 535, 47 S.Ct. 437, 71 L.Ed. 749, 50 A.L.R. 1243. Jordan v. Massachusetts, 225 U.S. 167, 176, 32 S.Ct. 651, 56 L.Ed. 1038. For a fair trial is a civil right of “peculiar sacredness” guaranteed by the Constitution. It is for that reason that, if the misconduct of a trial judge, in the presence of a jury, probably affected the jury in such manner as to have influenced their verdict, judgment must be reversed. United States v. Minuse, 2 Cir., 1940, 114 F.2d 36, 39; Mason v. United States, 2 Cir., 1933, 63 F.2d 791, 793. If there were equivalent factors here, the record would be contaminated and unquestionably the Board could not lawfully act on it. But here the fact-finder was the Board, not the trial examiner. Even if bias against respondent was manifested in the examiner’s intermediate report and recommendations, that bias became immaterial, since the Board ignored that report and relied solely and directly on the evidence in the record. The Board, patently, is not in the same position with respect to its examiner as is the jury with respect to the trial judge; no one would say that the judgment of a trial judge, sitting without a jury, should be reversed because of inflammatory remarks addressed to him by a lawyer for one" }, { "docid": "17107460", "title": "", "text": "claim to be recognized as the representative defined in section 9(a); the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.” O. D. Jennings & Company, 68 N.L.R.B. 516, 517—518 (1946), and cases therein cited. 61 Stat. 141, 29 U.S.C.A. § 158(a). 61 Stat. 146, 29 U.S.C.A. § 160(b) and (c). 61 Stat. 147, 29 U.S.C.A. § 160(e). 61 Stat. 148, 29 U.S.C.A. § 160(f). 61 Stat. 144, 29 U.S.C.A. § 159(d). A. F. of L. v. National Labor Relations Board, 1940, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347; Inland Empire Dist. Council v. Millis, 1945, 325 U.S. 697, 65 S.Ct. 1316, 89 L.Ed. 1877; May Dept. Stores Co. v. National Labor Relations Board, 1945, 326 U.S. 376, 388, 66 S.Ct. 203, 90 L.Ed. 145; National Labor Relations Board v. Falk Corp., 1940, 308 U.S. 453, 459, 60 S.Ct. 307, 84 L.Ed. 396. These cases dealt with . the National Labor Relations Act before its amendment by the Labor Management Relations Act of 1947, but the statutory scheme of procedure for judicial review of Board action was not changed by the amendment. Amazon Cotton Mill Co. v. Textile Workers Union, 4 Cir., 1948, 167 F.2d 183; Amalgamated Ass’n etc. v. Dixie Motor Coach Corp., 8 Cir., 1948, 170 F.2d 902, 907. Switchmen’s Union v. National Mediation Board, 1943, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61, dealt with another statute, but the principle applies in the case at bar. Heller Bros. Co. v. Lind, 1936, 66 App.D.C. 306, 86 F.2d 862, certiorari denied, 1937, 300 U.S. 672, 57 S.Ct. 611-613, 81 L.Ed. 878; Petroleum Exploration v. Public Service Comm., 1938, 304 U.S." }, { "docid": "11467169", "title": "", "text": "so was not acutely cognizant of the practical results of the scientific phenomenon. In this state of affairs a reviewing court faces two difficulties which militate against its attempting to compel the Commission to issue a license. In the first place it is difficult, if not impossible, upon facts such as these to say that causes and circumstances came to the knowledge of the Commission earlier than it says they did. In the second place what is in the public interest is, as the Supreme Court has said many times, within wide limits for the Commission to determine. We note that in the present case we do not have a rejection of an. application or even an indefinite postponement of its consideration. We have merely a temporary postponement. We think that the state of facts shown in this proceeding, considered in the light of our limited function of review, does not warrant our reversal or modification of the Commission’s order in respect to Harbenito. In view of the foregoing, other contentions need not be discussed. We have considered them, and they do not alter our conclusions. The Commission’s order will be Affirmed. . See. 402(b) of the Communications Act of 1934 as amended, 66 Stat. 718 (1952), . Federal Communications Comm. v. National Broadcasting Co., 1943, 319 U.S. 239, 63 S.Ct. 1035, 87 L.Ed. 1374.F . 12 Fed.Reg. 3359. . L. B. Wilson, Inc. v. Federal Communications Comm., 1948, 83 U.S.App.D.C. 176, 170 F.2d 793; WJR, The Goodwill Station v. Federal Communications Comm., 1948, 84 U.S.App.D.C. 1, 174 F.2d 226, reversed, 1949, 337 U.S. 265, 69 S.Ct. 1097, 93 L.Ed. 1353, mandate followed, 1949, 85 U.S.App.D.C. 392, 178 F.2d 720; WJR, The Goodwill Station, v. Federal Communications Comm., 1948, 84 U.S.App.D.C. 23, 174 F.2d 248. . 1948, 83 U.S.App.D.C. 176, 170 F.2d 793. . Sec. 316, 66 Stat. 717 (1952), 47 U.S. O.A. § 316. . 48 Stat. 1089 (1934), as amended, 47 U.S.G.A. § 319(c). . WJR, the Goodwill Station v. Federal Communications Comm., 1948, 84 U.S. App.D.C. 1, 174 F.2d 226, reversed, 1949, 337 U.S. 265, 93 L.Ed." }, { "docid": "957671", "title": "", "text": "(a). . 64 Stat. 999, 50 U.S.C.A. § 792(c). . Available from the Government Printing Office. . Supra note 2. . 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938). . Consolidated Edison Co. v. National Labor Relations Board, 95 F.2d 390, 397 (2 Cir., 1938). . Supra note 8, 305 U.S. at page 226, 59 S.Ct. at page 215. . 49 Star. 454 (1935), 61 Stat. 148 (1947). 29 U.S.C.A. § 160(e), reading in pertinent part: “If either party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Board, its member, agent, or agency, the court may order such additional evidence to be taken before the Board, its member, agent, or agency, and to be made a part of the transcript.” . National Labor Relations Board v. Fairchild Engine & Airplane Corp., 145 F.2d 214 (4 Cir., 1944) ; National Labor Relations Board v. National Laundry Co., 78 U.S.App.D.C. 184, 138 F.2d 589 (L.C.Cir., 1943); California Lumbermen’s Council v. Federal Trade Comm., 103 F.2d 304 (9 Cir., 1939). . Mississippi Valley Structural Steel Co. v. National Labor Relations Board, 145 F.2d 664 (1944). . Pub.L. No. 85-269, 71 Stat. 595 (1957), 18 U.S.C.A. § 3500. . Title I of the Internal Security Act of 1950, 64 Stat. 987, 50 U.S.C.A. § 781 et seq. . 64 Stat. 998, 50 U.S.C.A. § 792. . 60 Stat. 237 (1946), as amended, 5 U.S.C.A. § 1001 et seq. . Federal Communications Comm’n v. Pottsville Broadcasting Co., 309 U.S. 134, 143-144, 60 S.Ct. 437, 84 L.Ed. 656 (1940). . Fed.R.Civ.P. 34, 28 U.S.C.A.; Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957); Pub.L.No. 85-269, 71 Stat. 595 (1957), 18 U.S.C.A. § 3500. . Although the request for production of Markward’s F.B.I. report on the Frank-feld statement was made at the original hearing, the Party preserved this point on appeal by its motion" }, { "docid": "12499646", "title": "", "text": "Agency, § 8; 2 C.J.S. Agency § 2(d); 35 Am.Jur., Master & Servant, § 5; 56 C.J.S. Master and Servant § 3; Restatement, Agency, § 2(c), § 220(2) (c). . 29 U.S.C.A. § 152 et seq. . National Labor Relations Board v. Hearst Publications, 1944, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170. . National Labor Relations Board v. Hearst Publications, supra, Note 9, 322 U.S. at page 125, 64 S.Ct. 851, at page 857. As stated in another case, “It is the total situation that controls.” Bartels v. Birmingham, 1947, 332 U.S. 126, 130, 67 S.Ct. 1547, 1550, 91 L.Ed. 1947. And see, United States v. Silk, 1947, 331 U.S. 704, 716-718, 67 S.Ct. 1463, 91 L.Ed. 1757. . 29 U.S.C.A. § 201 et seq. . Walling v. American Needlecrafts, 6 Cir., 1943, 139 F.2d 60, 64; McComb v. Homeworkers' Handicraft Cooperative, 4 Cir., 1949, 176 F.2d 633. . Walling v. American Needlecrafts, supra, Note 12, 139 F.2d at page 63. See, United States v. Silk, supra, Note 10, loc. cit.; Stewart-Jordan Distributing Co. v. Tobin, 5 Cir., 1954, 210 F.2d 427, 432. . 15 U.S.C.A. § 45(a) (1). . 15 U.S.C.A. § 45(a) (6). . C. Howard Hunt Pen Co. v. Federal Trade Commission, 3 Cir., 1952, 197 F.2d 273, 281; and see, Federal Trade Commission v. Winsted Hosiery Co., 1922, 258 U.S. 483, 494, 42 S.Ct. 384, 66 L.Ed. 729. . International Art Co. v. Federal Trade Commission, 7 Cir., 1940, 109 F.2d 393, 396. And see, Consumer Sales Corp. v. Federal Trade Commission, 2 Cir., 1952, 198 F.2d 404, 406-407. . Parke, Austin & Lipscomb, Inc. v. Federal Trade Commission, 2 Cir., 1944, 142 F.2d 437, 440. . Standard Distributors v. Federal Trade Commission, 2 Cir., 1954, 211 F.2d 7, 13. . Galter v. Federal Trade Commission, 7 Cir., 1951, 186 F.2d 810, 815-816. . Federal Trade Commission v. Goodyear Tire & Rubber Co., 1938, 304 U.S. 257, 260, 58 S.Ct. 863, 82 L.Ed. 1326. See, National Labor Relations Board v. Mexia Textile Mills, 1950, 339 U.S. 563, 567, 70 S.Ct. 833, 94 L.Ed. 1067." }, { "docid": "12198843", "title": "", "text": "922, 84 S.Ct. 267, 11 L.Ed.2d 166 (1964) ; Parmelee Transp. Co. v. Keeshin, 292 F.2d 794 (7th Cir.), cert. denied, 368 U.S. 944, 82 S.Ct. 376, 7 L.Ed.2d 340 (1961); United States v. Klearflax Linen Looms, 63 F.Supp. 32, 39 (D.Minn.1945); Arzee Supply Corp. of Conn. v. Ruberoid Co., 222 F.Supp. 237 (D.Conn.1963); Fulda, supra note 5, at 597. . See also Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684 (1927); Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 625, 73 S.Ct. 872, 97 L.Ed. 1277 (1953); United States v. Klearflax Linen Looms, 63 F.Supp. 32 (D.Minn. 1945); Gamco, Inc. v. Providence Fruit & Produce Bldg., Inc., 194 F.2d 484 (1st Cir.), cert. denied, 344 U.S. 817, 73 S.Ct. 11, 97 L.Ed. 636 (1952); Poster Exchange Inc. v. National Screen Service Corp., 362 F.2d 571, at 574 (5th Cir. 1966). . The concept of agreement as an element in a Section 1 violation is extensively analyzed in Turner, The Definition of Agreement under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75 Harv.D.Rev. 655 (1962). . Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958); Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959); Fashion Originators’ Guild of America, Inc. v. Federal Trade Commission, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941) ; Eastern States Retail Lumber Dealers’ Ass’n v. United States, 234 U.S. 600, 34 S.Ct. 951, 58 L. Ed. 1490 (1914). See also Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U.S. 211, 214, 71 S.Ct. 259, 95 L.Ed. 219 (1951); Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 625, 73 S.Ct. 872, 97 L.Ed. 1277 (1953). See generally Barber, Refusals to Deal under the Federal Antitrust Laws, 103 U.Pa.LJEtev. 847 (1955); Buxbaum, Boycotts and Restrictive Marketing Arrangements, 64 MichX.Rev. 671 (1966); Att’y Gen. Nat’l Comm. Antitrust Rep. 132-34 (1955). . See cases cited in note 9, supra. . Poller v. Columbia Broadcasting System, Inc., 368" }, { "docid": "2069586", "title": "", "text": "justified in the public interest. It is sufficient that the determination finds substantial support on the record as made, and lies within the competence of the agency entrusted with the administration of the Act. The Commission’s order is affirmed. . 1952, 91 U.S.App.D.C. 72, 202 F.2d 298. . 48 Stat. 1085, 47 U.S.C.A. § 309(b). . 47 U.S.C.A. § 316(a). . Federal Communications Comm. v. N. B. C., 1943, 319 U.S. 239, 246, 63 S.Ct. 1035, 87 L.Ed. 1374. . 47 C.F.R. § 3.24 and 47 C.F.R. § 3.28 (c) (Supp.1954). . We understand the Commission to be saying no more than the simple fact that “there was no evidence in rebuttal which would contradict or weaken” the “showing that a need exists” as found by the Commission, in accordance with its Rule, 47 C.F.R. § 3.28(c). Whether WBNY had opposed the application, or not, the Rule required a “showing.” Conversely, WBNY was entitled to its “reasonable opportunity to show cause.” Federal Communications Comm. v. WJR, 1949, 337 U.S. 265, 282, 69 S.Ct. 1097, 93 L.Ed. 1353. . Communications Act of 1934, 48 Stat. 1095, as amended, 47 U.S.C.A. § 405; and see O’Neill Broadcasting Company v. United States and Federal Communications Commission, 1956, 100 U.S.App.D.C.— , 241 F.2d 443; cf. Seaboard & Western Airlines, Inc. v. Civil Aeronautics Board, 1950, 87 U.S.App.D.C. 78, 183 F.2d 975. . 1946, 329 U.S. 143, 155, 67 S.Ct. 245, 251, 91 L.Ed. 136. . 1938, 69 App.D.C. 1, 6, 98 F.2d 282, 287, certiorari denied 1938, 305 U.S. 625, 59 S.Ct. 86, 83 L.Ed. 400; cf. F. P. C. v. Colorado Interstate Gas Co., 1955, 348 U.S. 492, 500-501, 75 S.Ct. 467, 99 L.Ed. 583. . See also Democrat Printing Company v. Federal Communications Commission, 1952, 91 U.S.App.D.C. 72, 78, 202 F.2d 298, 303-304; United States v. L. A. Tucker Truck Lines, 1952, 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54; National Labor Relations Board v. Cheney Cal. Lumber Co., 1946, 327 U.S. 385, 389, 66 S.Ct. 553, 90 L.Ed. 739; cf. Tampa Times Co. v. Federal Communications Commission, 1956, 97" }, { "docid": "9584861", "title": "", "text": "S.Ct. 559, 44 L.Ed. 647; Harvey v. Harvey, 7 Cir., 290 F. 653. . Mallonee-Assoeiation make the blunt assertion that as to the instant proceeding “there are no indispensable parties;” that “no action by appellants is necessary to effectuate the order (granting interim attorneys’ fees to counsel for plaintiifs in the Los Angeles action) nor can their non-consent prevent its en-foreement.” . Abrams v. Daugherty, 60 Cal.App. 297, 302, 212 P. 942; California Employment Commission v. Malm, 59 Cal.App.2d 322, 324, 138 P.2d 744; Mt. Carmel Public Utility & Service Co. v. Public Utilities Commission, 297 Ill. 303, 130 N.E. 693, 696, 21 A.L.R. 571. . Reams v. Cooley, 171 Cal. 150, 152 P. 293; Cowell Lime & Cement Co. v. Williams, 182 Cal. 691, 180 P. 838. . Red River Broadcasting Co. v. Federal Communications Comm., 69 App.D.C. 1, 98 F.2d 282, 287. See Marshall v. Pletz, 317 U.S. 383, 388, 63 S.Ct. 284, 87 L.Ed. 348; Tagg Bros. & Moorhead v. United States, 280 U.S. 420; 444, 50 S.Ct. 220, 74 L.Ed. 524. . Siegel v. United States, D.C., 87 F. Supp. 555; Interstate Commerce Comm. v. Louisville & N. R. Co., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431; Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 318-319, 53 S.Ct. 350, 77 L.Ed. 796; Dismuke v. United States, 297. U. S. 167, 169, 56 S.Ct. 400, 80 L.Ed. 561; Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093; Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 999, 82 L.Ed. 1129. In the prayer of the complaint in the Los Angeles Action no demand is made that the court order, or attempt to order, an administrative hearing by the Commissioner on his three challenged orders. For prayer of .complaint see pp. 9493 to 9496 printed transcript in appeal No. 12,511. See also prayer of cross-claim of Los Angeles pp. 583 to 586 of printed transcript in appeal No. 12,511. It is upon arguments of the character here noted that Los Angeles bases the claim that" }, { "docid": "14286126", "title": "", "text": "because the legislature has not delegated to it the power to promulgate them. 7. To the extent that the legislature has delegated to the board the power to make the rules, that delegation is illegal under the Georgia Constitution. We find that plaintiffs are correct in their first challenge, that the procedure employed deprives them of their right to an impartial tribunal. We also find, however, that the rules themselves are a valid exercise of the board’s power over the optometry profession in Georgia, and that plaintiffs’ other constitutional claims are without merit. It is one of the mainstays of our system of laws that a state cannot affect a person’s personal or property rights except after a hearing before a fair and impartial tribunal. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L. Ed.2d 556 (1972). In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955); Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921). A fair and impartial tribunal requires at least that the trier of fact be disinterested. Turney v. Ohio, 273 U.S. 5Í0, 47 S.Ct. 437, 71 L.Ed. 749 (1927), and that he also be free from any form of bias or predisposition regarding the outcome of the case, Pillsbury Co. v. FTC, 354 F.2d 952 (5th Cir. 1966); N.L.R.B. v. Phelps, 136 F.2d 562 (5th Cir. 1943). Not only must the procedures be fair, “the very appearance of complete fairness” must also be present. Amos Treat & Co. v. SEC, 113 U.S.App.D.C. 100, 306 F.2d 260, 267 (1962). These principles apply not only to trials, but equally, if not more so, to administrative proceedings. Ohio Bell Telephone Company v. Public Utilities Com’n., 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093 (1937); N.L.R.B. v. Phelps, supra, Jaffe and Nathanson, Administrative Law, 3rd Ed. (1968), 955 et seq. Plaintiffs argue that the defendant board members should not be allowed to participate in the determination of whether they have engaged in unprofessional conduct, because the defendants would tend to benefit from a determination that they have engaged" }, { "docid": "4281110", "title": "", "text": "if supported by substantial evidence on the record considered as a whole shall be conclusive. * * * ” . See also National Labor Relations Board v. Waterman S.S. Corporation, 1940, 309 U.S. 206, 208-209, 60 S.Ct. 493, 84 L.Ed. 704; National Labor Relations Board v. Link-Belt Co., 1941, 311 U.S. 584, 597, 61 S.Ct. 358, 85 L.Ed. 368; Phelps-Dodge Corporation v. National Labor Relations Board, 1941, 313 U.S. 177, 194, 61 S.Ct. 845, 85 L.Ed. 1271; Federal Security Administrator v. Quaker Oats Co., 1943, 318 U.S. 218, 227-228, 63 S.Ct. 589, 87 L.Ed. 724; National Labor Relations Board v. Southern Bell Telephone & Telegraph Co., 1943, 319 U.S. 50, 60, 63 S.Ct. 905, 87 L.Ed. 1250; National Labor Relations Board v. Hearst Publications, Inc., 1944, 322 U.S. 111, 130-131, 64 S.Ct. 851, 88 L.Ed. 1170; American Trucking Associations, Inc., v. United States, 1953, 344 U.S, 298, 310, 73 S.Ct. 307, 97 L.Ed. 337; National Labor Relations Board v. Lettie Lee, Inc., 9 Cir., 1944, 140 F.2d 243, 247; Local Union No. 12, Progressive Mine Workers of America v. National Labor Relations Board, 7 Cir., 1951, 189 F.2d 1, 4, certiorari denied, 1951, 342 U.S. 868, 72 S.Ct. 109, 96 L.Ed. 653. . See also Pittsburgh Plate Glass Co. v. National Labor Relations Board, 1941, 313 U.S. 146, 152, 61 S.Ct. 908, 85 L.Ed. 1251; National Labor Relations Board v. Hearst Publications, supra, 322 U.S. at page 134, 64 S.Ct. 851, 88 L.Ed. 1170; May Department Stores Co. v. National Labor Relations Board, 1945, 326 U.S. 376, 380, 66 S.Ct. 203, 90 L.Ed. 145; National Labor Relations Board v. Lettie Lee, supra, 9 Cir., 140 F.2d at page 248; National Labor Relations Board v. Graham, 9 Cir., 1947, 159 F.2d 787, 788; National Labor Relations Board v. National Plastic Products Co., 4 Cir., 1949, 175 F.2d 755, 758; Mueller Brass Co. v. National Labor Relations Board, 1950, 86 U.S.App.D.C. 153, 180 F.2d 402, 405; National Labor Relations Board v. Somerville Buick, Inc., 1 Cir., 1952, 194 F.2d 56, 59. . See also National Labor Relations Board F.2d 810, 812-813. v." }, { "docid": "11467170", "title": "", "text": "We have considered them, and they do not alter our conclusions. The Commission’s order will be Affirmed. . See. 402(b) of the Communications Act of 1934 as amended, 66 Stat. 718 (1952), . Federal Communications Comm. v. National Broadcasting Co., 1943, 319 U.S. 239, 63 S.Ct. 1035, 87 L.Ed. 1374.F . 12 Fed.Reg. 3359. . L. B. Wilson, Inc. v. Federal Communications Comm., 1948, 83 U.S.App.D.C. 176, 170 F.2d 793; WJR, The Goodwill Station v. Federal Communications Comm., 1948, 84 U.S.App.D.C. 1, 174 F.2d 226, reversed, 1949, 337 U.S. 265, 69 S.Ct. 1097, 93 L.Ed. 1353, mandate followed, 1949, 85 U.S.App.D.C. 392, 178 F.2d 720; WJR, The Goodwill Station, v. Federal Communications Comm., 1948, 84 U.S.App.D.C. 23, 174 F.2d 248. . 1948, 83 U.S.App.D.C. 176, 170 F.2d 793. . Sec. 316, 66 Stat. 717 (1952), 47 U.S. O.A. § 316. . 48 Stat. 1089 (1934), as amended, 47 U.S.G.A. § 319(c). . WJR, the Goodwill Station v. Federal Communications Comm., 1948, 84 U.S. App.D.C. 1, 174 F.2d 226, reversed, 1949, 337 U.S. 265, 93 L.Ed. 1353, 69 S.Ct. 1097, mandate followed, 1949, 85 U.S. App.D.C. 392, 178 F.2d 720; WJR, The Goodwill Station v. Federal Communications Comm., 1948, 84 U.S.App.D.C. 23, 174 F.2d 248. . Supra note 7." }, { "docid": "12750333", "title": "", "text": "all circumstances that factual determinations be made by the person hearing the evidence. National Labor Relations Board v. Mackay Radio & Telegraph Co., 1938, 304 U.S. 333, 350, 58 S.Ct. 904, 82 L.Ed. 1381; Morgan v. United States, supra, 298 U.S. at pages 480-482, 56 S.Ct. at pages 911, 912; De La Rama v. De La Rama, 1916, 241 U.S. 154, 36 S.Ct. 518, 60 L.Ed. 932; D. M. W. Contracting Co. v. Stolz, 1946, 81 U.S.App.D.C. 334, 158 F.2d 405, certiorari denied 1947, 330 U.S. 839, 67 S.Ct. 980, 91 L.Ed. 1286; Eastland Co. v. Federal Communications Comm., 1937, 67 App.D.C. 316, 92 F.2d 467, certiorari denied 1937, 302 U.S. 735, 58 S.Ct. 120, 82 L.Ed. 568; United States ex rel. Minuto v. Reimer, 2 Cir., 1936, 83 F.2d 166; Crow v. Industrial Comm., 1943, 104 Utah 333, 140 P.2d 321, 148 A.L.R. 316. Cf. Smith v. Dental Products Co., 7 Cir., 1948, 168 F.2d 516; S. Buchsbaum & Co. v. Federal Trade Comm., 7 Cir., 1946, 153 F.2d 85, certiorari granted, and judgment vacated on respondent’s waiver of decision in its favor, 1946, 328 U.S. 818, 66 S.Ct. 1016, 90 L.Ed. 1600. The importance of demeanor evidence to the particular case is an important but not always determinative consideration. In any event, the present appeal does not squarely raise the constitutional issue, for appellants Clark and Reeves never desired or attempted to have the trier of fact — the district court — hear the evidence before deciding the case. This case is more akin to Bobinski, involving this same condemnation proceeding, in which we held that the district court, when it determines that findings of a commission are clearly erroneous, is not required to resubmit the case to the commission, but may make its own findings. 2 Cir., 1957, 244 F.2d 299, The Fifth Circuit has recently taken the same position. United States v. Twin City Power Co., 5 Cir., 1958, 253 F.2d 197, 204. See also United States v. Twin City Power Co., 4 Cir., 1957, 248 F.2d 108, 112; United States v. 44.00 Acres of Land," } ]

[ { "docid": "22867727", "title": "", "text": "Per Curiam. The motions for leave to proceed in forma pauperis and the petitions for writs of certiorari are granted. The judgments are vacated and the cases ate remanded to the Supreme Court of Florida for further consideration in light of Gideon v. Wainwright, 372 U. S. 335. Mr. Justice Harlan, dissenting. I am unable to agree with the Court’s summary disposition of these 10 Florida cases, and believe that the federal question which they present in common is deserving of full-dress consideration. That question is whether the denial of an indigent defendant’s right to court-appointed counsel in a state criminal trial as established last Term in Gideon v. Wainwright, 372 U. S. 335, overruling Betts v. Brady, 316 U. S. 455, invalidates his pre-Gideon conviction. When this Court is constrained to change well-established constitutional rules governing state criminal proceedings, as has been done here and in other recent cases, see, e. g., Mapp v. Ohio, 367 U. S. 643; Ker v. California, 374 U. S. 23; Douglas v. California, 372 U. S. 353, it seems to me that the question whether the States are constitutionally required to apply the new rule retrospectively, which may well require the reopening of cases long since finally adjudicated in accordance with then applicable decisions of this Court, is one that should be decided only after informed and deliberate consideration. Surely no general answer is to be found in “the fiction that the law now announced has always been the law.” Griffin v. Illinois, 351 U. S. 12, 26 (Frankfurter, J., concurring). Nor do I believe that the circumstance that Gideon was decided in the context of a state collateral proceeding rather than upon direct review, as were the new constitutional doctrines enunciated in Mapp and Ker, forecloses consideration of the retroactivity issue in this instance. In the current swift pace of constitutional change, the time has come for the Court to deal definitively with this important and far-reaching subject. Without intimating any view as to how the question should be decided in these cases, I would set one or more of them for" } ]

[ { "docid": "11922856", "title": "", "text": "(1962). Under such an analysis, for example, a distinction might be drawn between Gideon and a ease such as Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). It might be argued, in this regard, that the exclusionary rule of Mapp is not designed to protect the ‘fairness’ of the actual trial, but rather to serve as a deterrent to oppressive police conduct. If this is true, it might be maintained that Mapp has less of a daim to retroactive application than does Gideon, since Mapp could hardly be expected to ‘deter’ searches which took place prior to the date of its. decision. See United States ex rel. Linkletter v. Walker, 323 F.2d 11 (5th Cir. 1963). It is not now necessary to express any view as to the validity of this sort of analysis, and we expressly disclaim any intention here to decide whether Mapp is to be retroactively applied. Consid erations of this sort do, however, indicate that Gideon and Mapp present quite different questions, and that a holding that the former is retroactive by no means compels a similar result when the latter issue is before us.” . The lines of demarcation drawn between eases at the periphery of any rule may frequently appear to be somewhat arbitrary. Nevertheless, in our opinion, the fact that the mitigating considerations, discussed in the Preliminary Comment of this opinion, that favored applying the Mapp rule in Ker, Fahy and Stoner are absent in Angelet provides a rational basis for distinguishing those cases. MARSHALL, Circuit Judge (with whom SMITH, Circuit Judge, concurs), dissenting: I respectfully dissent. I cannot, and as I read the opinion in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), we may not restrict its application to illegal searches and seizures, or convictions based upon illegally seized evidence, occurring after that decision. “It is significant that the Supreme Court did not specifically declare that the effect of its decision was to operate only in the future, as it might have done.” Hall v. Warden, 313 F.2d 483, 496 (4" }, { "docid": "19537724", "title": "", "text": "law-meaning one announced after the convictions became final-unless that new rule was a \"substantive rule\" or a \"watershed rul[e] of criminal procedure.\" 489 U.S., at 311, 109 S.Ct. 1060. The Teague prescription followed from Justice Harlan's view of the \"retroactivity problem\" detailed in his separate opinion in Desist v. United States, 394 U.S. 244, 256, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (dissenting opinion), and later in Mackey v. United States, 401 U.S. 667, 675, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (opinion concurring in judgment in part and dissenting in part). Placing the rule's first exception in context requires more analysis than the majority has applied. The Court in the mid-20th century was confounded by what Justice Harlan called the \"swift pace of constitutional change,\" Pickelsimer v. Wainwright, 375 U.S. 2, 4, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963) (dissenting opinion), as it vacated and remanded many cases in the wake of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Justice Harlan called upon the Court to engage in \"informed and deliberate consideration\" of \"whether the States are constitutionally required to apply [Gideon 's] new rule retrospectively, which may well require the reopening of cases long since finally adjudicated in accordance with then applicable decisions of this Court.\" Pickelsimer, supra, at 3, 84 S.Ct. 80. The Court answered that call in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Linkletter began with the premise \"that we are neither required to apply, nor prohibited from applying, a decision retrospectively\" and went on to adopt an equitable rule-by-rule approach to retroactivity, considering \"the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.\" Id., at 629, 85 S.Ct. 1731. The Linkletter framework proved unworkable when the Court began applying the rule-by-rule approach not only to cases on collateral review but also to cases on direct review, rejecting any distinction \"between convictions now final\" and \"convictions at various stages of trial and direct review.\" Stovall v. Denno, 388 U.S. 293, 300," }, { "docid": "872097", "title": "", "text": "of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, (1967); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). It is manifest that the considerations which require our rejection of the district court’s former grand jury selection procedure are not grounded in the Constitution, Hoyt v. Florida, supra. Moreover, that procedure posed no demonstrated threat to the integrity of the fact-finding process. Only when such considerations are present is there a rational basis for retroactive application. E.g., Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to counsel), held retroactive in Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650 (1964); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (right to confront and cross examine witnesses), held retroactive in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968) and Barber v. Page, 390 U. S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), held retroactive in Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (right to counsel on appeal), held retroactive in Smith v. Crouse, 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039 (1964); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1970) (right to counsel at sentencing), held retroactive in McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (right to counsel at preliminary hearings in which substantial rights may be adversely" }, { "docid": "16359971", "title": "", "text": "announced, and in their wake, a novel discussion arose as to whether a new constitutional rule of criminal procedure should be applied retroactively on direct or collateral review. This debate, a “product of the Court’s disquietude with the impacts of its fast-moving pace of constitutional innovation in the criminal field,” Mackey v. United States, 401 U.S. 667, 676, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in part and dissenting in part), culminated in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). In Linkletter, a defendant was convicted based on evidence that was obtained during a warrantless search. A year after the defendant had exhausted his state appeals, the Supreme Court decided Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Subsequently, the defendant filed a habeas petition arguing that Mapp required reversal of his conviction. The Supreme Court held that even though “the Constitution neither prohibits nor requires retrospective effect,” Linkletter, 381 U.S. at 629, 85 S.Ct. 1731, a constitutional rule of criminal procedure would not be retroactive unless, under a case-by-case analysis, three factors — the purpose of the new rule, reliance on prior doctrine, and the effect of retroactivity on the administration of justice — favor retroactive application of the rule. Id. at 636, 85 S.Ct. 1731. The Linkletter rule applied to convictions pending on direct review as well as to final convictions challenged collaterally by a federal habeas petition. Johnson v. New Jersey, 384 U.S. 719, 732, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). The tripartite Linkletter test proved difficult to apply. Justice Harlan observed that it had fostered the creation of “an extraordinary collection of rules to govern the application of that principle.” Desist v. United States, 394 U.S. 244, 256-57, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting). He contended that the test produced inconsistent results, leading to different treatment for similarly-situated defendants. See id. Justice Harlan remained critical of the Linkletter test throughout a series of subsequent cases. See, e.g., Mackey, 401 U.S. at 675, 91 S.Ct. 1160 (Harlan, J.," }, { "docid": "14294666", "title": "", "text": "792, 9 L. Ed.2d 799 (1963), — retrospective by Doughty v. Maxwell, 376 U.S. 202, 84 S. Ct. 702, 11 L.Ed.2d 650 (1964); or provide for prospective application only by a subsequent case, Mapp v. Ohio, 367 U. S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961),- prospective for judgments after 6/19/61. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). In three cases where the new rule was applied retrospectively, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), “the principle * * * applied went to the fairness of the trial— the very integrity of the fact-finding process.” Linkletter v. Walker, supra, (381 U.S. at 639, 85 S.Ct. at 1743). Other considerations are “the necessity for an effective deterrent to illegal police action,” and on the other hand “the wholesale release of the guilty victims.” Linkletter v. Walker (381 U.S. at 636-637, 85 S.Ct. at 1741-1742). The reliance on the old rule in criminal cases is not by the litigant, the defendant. The reliance is on the part of the law enforcement officers. Johnson v. New Jersey, 384 U.S. 719, 731, 86 S.Ct 1772, 16 L.Ed.2d 882 (1966). These considerations are not present in a civil case. The problem in the civil case is different, and the last paragraph of Simpson and the five way test from Hanover v. United Shoe Co., supra, point the way. The major consideration is — did a party to the present litigation rely on a rule of law which has now been changed, so that it would be inequitable to apply the new rule to such party. There is another consideration which could conceivably come within the meaning of “any equities” referred to in Simpson. We note it briefly. A substantial number of cases in which a plaintiff seeking damages has succeeded in persuading an appellate court to establish a new rule favorable to him, have applied" }, { "docid": "23623391", "title": "", "text": "evade application of this principle by naming additional defendants in the subsequent action has no effect, usually, so long as the plaintiff is attempting to re-litigate the same causes of action and the same issues. Cf. Helmig v. Rockwell Manufacturing Company, 389 Pa. 21, 131 A.2d 622 (1957); Sopp v. Gehrlein, 236 F.Supp. 823 (W.D.Pa.1964). Be that as it may, it is not altogether clear that the dismissal of the suit at Mise. No. 3323 can be accorded conclusive effect in this action. See: Urbano v. Calissi, 353 F.2d 196 (3d Cir. 1965); Armstrong v. Rushing, 352 F.2d 836 (9th Cir. 1965); Williams v. Murdoch, 330 F.2d 745 (3d Cir. 1964); Harmon v. Superior Court, 307 F.2d 796 (9th Cir. 1962); 1B Moore, supra, ¶ 0.409 [1], p. 1006. Since we believe that there exist sufficient other reasons for dismissing this suit, we do not feel compelled to rule upon the effect of such prior litigation. OTHER MATTERS We hold further that plaintiff has stated no federal claim upon which relief can be granted with respect to the attempted assertion of liability against the defendants arising out of reliance upon claimed retrospective application of eases such as Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed. 2d 977 (1964); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964); Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963); Wong Sun v United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R. 2d 933 (1961). Plaintiff’s state court convictions did not become final until certiorari was denied on February 19, 1962. Cf. Linkletter v. Walker, 381 U.S. 618, 622, f. n. 5, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Whatever relevance that fact may have in the context of a habeas corpus petition, however, it has none here. To hold" }, { "docid": "22106566", "title": "", "text": "the defendant’s indigency and desire for appellate counsel. When an accused person retains counsel on the original trial, the State may rely on the presumption that the accused’s lawyer will protect his client’s rights on appeal. But that presumption is rebuttable. Here, if Pate is telling the truth, he rebutted the presumption. If indeed Pate wrote the County Solicitor, wrote the Attorney General of Alabama, and twice wrote the trial judge, telling of his difficulties and asking for the assistance of appellate counsel, he did all, and perhaps somewhat more, than was necessary to put in motion the machinery for adequate review of an indigent’s conviction. Cf. Miller v. Bomar, M.D.Tenn. 1963, 230 F.Supp. 204. Like Gideon and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, Douglas is silent on the question of its retrospective effect. In Doughty v. Maxwell, 1964, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650, in a short per curiam opinion the Supreme Court reversed a state court conviction where the accused had failed to request counsel when pleading guilty; Doughty was convicted two years before Gideon’s 1961 conviction. United States ex rel. Durocher v. LaValle, 2 Cir. 1964, 330 F.2d 303, cert. den’d 377 U.S. 998, 84 S.Ct. 1921, 12 L.Ed.2d 1048, relying on Doughty v. Maxwell, applied Gideon where a defendant pleaded guilty without being apprised of his right to counsel. This Court has applied Mapp prospectively, and distinguished it from Griffin where the object of the ruling was to provide fairness in the trial itself rather than to provide a deterrent to unlawful police action. United States ex rel. Linkletter v. Walker, 5 Cir. 1963, 323 F.2d 11. In a recent comment the author suggests that “retroactivity” in habeas proceedings is an illusion: “The illusion of 'retroactivity’ is created because the judicial inquiry into the legality of detention under a final conviction leads necessarily to a review of the conviction (res judicata being inapplicable), which may have been valid under the law at the time it was rendered. * * * Despite the necessary involvement of what happened" }, { "docid": "872098", "title": "", "text": "Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650 (1964); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (right to confront and cross examine witnesses), held retroactive in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968) and Barber v. Page, 390 U. S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), held retroactive in Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (right to counsel on appeal), held retroactive in Smith v. Crouse, 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039 (1964); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1970) (right to counsel at sentencing), held retroactive in McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (right to counsel at preliminary hearings in which substantial rights may be adversely affected), held retroactive in Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968). Generally, rulings not primarily designed to enhance the reliability of the fact-finding or truth-determining process have not been applied retroactively. The exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) was held not to be fully retroactive in Linkletter v. Walker, supra. The rule of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1955), forbidding prosecutorial comment on the defendant’s failure to testify was denied complete retroactive effect in Tehan v. United States ex rel. Shott, supra. Johnson v. New Jersey, supra, denied retroactivity to the landmark decisions of Escobedo v. Illinois, 378 U. S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. And this court in United States ex rel. Allison v. New Jersey, 418 F.2d 332 (1969), denied retroactivity to the doctrine of Massiah v. United States, 377 U.S. 201, 84 S.Ct." }, { "docid": "919187", "title": "", "text": "purpose of the rule announced in Simmons is to insure that defendants will not be deterred from asserting their Fourth Amendment rights in suppression hearings by fear that their testimony may later be used against them before the jury. 390 U.S. at 392-394, 88 S.Ct. 967. Since the rule is not concerned with the reliability of the defendant’s suppression hearing testimony, the integrity and reliability of the fact finding process, which is a fundamental factor influencing .retroactivity, is not- involved. Compare Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) with Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772 (1966) ; Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731 (1965) and Stovall v. Denno, 388 U.S. 293, 88 S.Ct. 1967 (1967) . Furthermore, the purpose of Simmons would not be served by retro-activity, since retroactive application would only serve to benefit those like Hart who were not deterred from testifying at a suppression hearing. If, on the other hand, a defendant did not testify in such a suppression hearing, the issue would never arise. The other relevant considerations also point in the direction of denying retroactive application to Simmons. Prosecutors may reasonably have relied upon the preponderance of authority prior to Simmons to the effect that a defendant’s suppression hearing testimony was admissible at least where the motion to suppress was denied. Simmons 390 U.S. at 392 n. 16, 88 S.Ct. 967. Furthermore, the only other federal court which has considered the question has concluded that retroactive application of Simmons might significantly disrupt the administration of criminal justice. See Monroe v. United States, 288 F.Supp. 139 (E.D.La.1968). Appellant contends, however, that he should have the benefit of Simmons because his case is before this court on direct appeal and not on collateral attack. Such a distinction has been drawn with respect to the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and the prohibition on a state prosecutor’s commentary on defendant’s" }, { "docid": "21491659", "title": "", "text": "ex rel. Craig v. Myers, 220 F.Supp. 762 (E.D.Pa. 1963), aff’d supra note 18, granted Craig’s petition for habeas corpus, District Judge Body holding “there is no doubt at all” Gideon applies to cases prior thereto. . Jones v. Cunningham, 319 F.2d 1, 4-5 (4 Cir. 1963). The decision of the court expressly declined to rule on the retroactivity question, since it found denial of counsel had been unconstitutional even under the special circumstances test. Id. at 3. See Striker v. Pancher, 317 F.2d 780, 783-84 (6 Cir. 1963), where the dictum of Judge Prottyman states that Betts v. Brady has been overruled by Gideon, “and the law as announced in the later case must be viewed as the law in the prior period.” . See dissent of Mr. Justice Harlan in Pickelsimer v. Wainwright, 375 U.S. 2, 3, 84 S.Ct. 80, 81, 11 L.Ed.2d 41, 42 (1963), where he states: “I am unable to agree with the Court’s summary disposition of [those] 10 Florida cases, and believe that' the federal question which they present in common is deserving of full-dress > consideration. The question is whether the denial of an indigent defendant’s right to court-appointed counsel in a state criminal trial as established last Term in Gideon v. Wainwright, 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799], overruling Betts v. Brady, 316 U.S. 455 [62 S.Ct. 1252, 86 L.Ed. 1595], invalidates his pre-Gideon conviction.” . 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650 (1963). . United States ex rel. Durocher v. La Vallee, supra note 27, at 310. . Doughty v. Maxwell, 173 Ohio St. 407, 183 N.E.2d 368 (1962). . Doughty v. Maxwell, 372 U.S. 781, 83 S.Ct. 1106, 10 L.Ed.2d 139 (1963). . 175 Ohio St. 46, 191 N.E.2d 727 (1963). . 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). . Supra note 20. . In United States ex rel. Durocher, supra note 27, at 311, the Court of Appeals, in quoting the' late Judge Clark, states that subsequent to Gideon, the Supreme Court has remanded upwards of forty cases in light of" }, { "docid": "4129014", "title": "", "text": "he had no knowledge that he had possession of the money orders in the brief case. “The first time that I ever saw those checks in quantity was when the FBI opened the bag.” There is no question concerning the validity of the arrest. The question presented by relator is whether, absent a search warrant, the search was illegal as not being incident to the arrest. His case support for this proposition is Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, decided by the Supreme Court on June 23, 1969, and Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L.Ed.2d 777 (1964). On the day that Chimel was decided, the Court refused in two other cases to consider whether its ruling should be applied retroactively. Von Cleef v. New Jersey, 395 U.S. 814, 89 S.Ct. 2051, 23 L.Ed.2d 728; Shipley v. California, 395 U.S. 818, 89 S.Ct. 2053, 23 L.Ed.2d 732. In Desist v. United States, 394 U.S. 244, 252-253, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), the Court held that the ruling of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), should apply only to eavesdropping conducted after the date of its decision. It pointed out that the limited retroactivity permitted by Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) , of the rule enunciated in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), flowed from the fact that Mapp had already been so construed without any discussion of the point. Since the possibility of applying the rule of Katz prospectively was still open, the Court in Desist adopted the rule it did. See also Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968); Johnson v. New Jersey, 384 U. S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) . From a reading of the cases cited, I find that the rule of Chimel should be applied prospectively and does not apply to searches made prior to June 23, 1969. We" }, { "docid": "15640609", "title": "", "text": "Justice Stewart put Griffin v. People of State of California in the same category as the rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081, 84 A.L.R.2d 933 (1961). Both were held to rest on “considerations of quite a different order from those underlying other recent constitutional decisions which have been applied retroactively” (382 U.S. at 416, 86 S.Ct. at 465). Mr. Justice Stewart then immediately added: The basic purpose of a trial is the determination of truth, and it is self-evident that to deny a lawyer’s help through the technical intricacies of a criminal trial or to deny a full opportunity to appeal a conviction because the accused is poor is to impede that purpose and to infect a criminal proceeding with the clear danger of convicting the innocent. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733; Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650; Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R. 2d 1055; Eskridge v. Washington State Board of Prison Terms & Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269. The same can surely be said of the wrongful use of a coerced confession. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205; McNerlin v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 1041; Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948. In the final analysis, the question of whether Douglas should be applied retrospectively turns on whether denial of counsel on appeal is to be equated with the broad principles recognized in Griffin v. People of State of Illinois and Gideon v. Wainwright, which are to be applied retrospectively, or with Mapp, Griffin v. People of State of California, Escobedo, and Miranda, which are to be applied only prospectively. Logic dictates that Douglas belongs with Gideon, Griffin v. People of State of Illinois, and the other cases which are cited by Tehan as having" }, { "docid": "5433154", "title": "", "text": "v. Denno, 378 U.S. 368, 385 and 386, 84 S.Ct. 1774, 1785 (1964). . Mr. Justice White noted that “[u]nder the New York rule the judge is not required to exclude the jury while he hears evidence as to voluntariness and perhaps is not allowed to do so.” (citations omitted) Jackson v. Denno, 378 U.S. 368, 377, 84 S.Ct. 1774, 1781, note 7 (1964). See also Malloy v. Hogan, 378 U.S. 1, 6-8, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). . See, e. g., Com. ex rel. Butler v. Rundle, 416 Pa. 321, 206 A.2d 283 (Jan. 1, 1965); United States ex rel. Milford v. McMann, 231 F.Supp. 731, 733 (N.D. N.Y.1964); United States ex rel. Petersen v. McMann, 234 F.Supp. 287 (N.D. N.Y.1964); Rudolph v. Holman, 236 F. Supp. 62, 68 and 69 (N.D.Ala.1964). See also Smith v. State of Texas, 236 F.Supp. 857 (S.D.Tex.1964), distinguishing Jackson v. Denno, supra note 39. . The most notable recent examples are Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961). For Mr. Justice Harlan’s dissent to the Supreme Court’s per curiam opinion vacating the ten preGideon convictions, see Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963). For cases giving retroactive effect to the Mapp decision, see the following: California v. Hurst, 325 F.2d 891 (9th Cir. 1963), petition for cert. filed 32 U.S.L.Week 3323 (U.S. March 13, 1964), Hall v. Warden, 313 F.2d 483 (4th Cir. 1963) cert. denied 374 U.S. 809, 83 S.Ct. 1693, 10 L.Ed.2d 1032 (1963); contra, United States ex rel. Linkletter v. Walker, 323 F.2d 11 (5th Cir. 1964), cert. granted 377 U.S. 930, 84 S.Ct. 1340, 12 L.Ed.2d 295 (1964). Gaitan v. United States, 317 F. F.2d 494 (10th Cir. 1962). United States ex rel. Angelet v. Fay, 333 F.2d 12 (2d Cir. June 11, 1964). Linkletter and Walker were set for oral argument before the United States Supreme Court on March 1, 1965, 379 U.S. 955, 85 S. Ct. 639, (Feb. 16, 1965). . For" }, { "docid": "22247492", "title": "", "text": "retroactive application of the new standards.” (Stovall v. Denno (1967) 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199.) “Foremost among these factors is the purpose to be served by the new constitutional rule.” (Desist v. United States (1969) 394 U.S. 244, 249, 89 S,Ct. 1030, 1033, 22 L.Ed.2d 248.) Heavy weight should be given the last two factors — the extent of reliance and consequent burden on the administration of justice — “only when the purpose of the rule in question [does] not clearly favor either retroactivity or prospectivity.” (Desist v. United States, supra, 394 U.S. at 251, 89 S.Ct. at 1035.) Accordingly, where the rule is fashioned to correct a serious flaw in the fact-finding process and therefore goes to the basic integrity and accuracy of the guilt-innocence determination, retroactive effect will be accorded. (E. g., McConnell v. Rhay (1968) 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2; Roberts v. Russell (1968) 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100; Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; Jackson v. Denno (1964) 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Griffin v. Illinois (1956) 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; see Linkletter v. Walker (1965) 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, 639.) Retroactivity has been denied or limited only in instances where the rule does not go to the fairness of the trial, or where the flaw in the fact-finding process is either of secondary importance or of infrequent occurrence. (E. g., Desist v. United States, supra; Stovall v. Denno, supra; Tehan v. United States ex rel. Shott (1966) 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453; Johnson v. New Jersey (1966) 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882; Linkletter v. Walker, supra; Williams v. United States (9th Cir. 1969) 418 F.2d 159.). The invalidated portion of the presumption was an integral part of the fact-finding process. The use of the presumption affected the integrity of" }, { "docid": "22247515", "title": "", "text": "affect Scott, it would not be dicta. In the last five years the Supreme Court has handed down over a dozen decisions governing the retroactivity of its major criminal rights decisions. From the language and result of those decisions we must determine the retroactivity to be accorded Leary. We begin our examination with the premise that the Constitution does not dictate our action. In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), Justice Clark observed: “[W]e believed that the Constitution neither prohibits nor requires retrospective effect.” [page 629, 85 S.Ct. at 1737]. To the same effect Johnson v. New Jersey, 384 U.S. 719 at 733, 86 S. Ct. at 1781 (1966), held “* * * [T]here are no jurisprudential or constitutional obstacles to the rule” of prospective application. See also Desist v. United States, 394 U.S. 244 at 252, 89 S.Ct. 1030 (1969). Considered treatment of the retroactivity problem began with Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Linkletter had been convicted in a state case in 1959 and proceeded below by habeas corpus. His was a collateral attack based on Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). In Link-letter, the Mapp search and seizure decision was held not to apply to convictions which had become final before the date of Mapp and to apply only to those cases on direct review on the date of the Mapp decision. “It was the judgment of this Court that changed the rule and the date of that opinion is the crucial date.” [page 639, 85 S.Ct. page 1743]. Link-letter himself was denied relief. A similar result was reached in Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1965). Tehan had been convicted in state court in 1961 and brought habeas corpus in the district court. His was a collateral attack based on Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The court held as in Linkletter that the new rule applied only" }, { "docid": "4029633", "title": "", "text": "unreasonable. The search in this ease, however, occurred before the Court rendered its decision in Chimel. We must decide, therefore, whether Chimel applies retroactively. In Stovall v. Denno, 1967, 388 U.S. 293, 87 S.Ct.1967, 18 L.Ed.2d 1199, the Supreme Court listed the criteria governing the retroactivity of a new constitutional standard in criminal law. The criteria guiding resolution of the question implicates (a) the purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of a retroactive application of the new standards.” 388 U.S. at 297, 87 S.Ct. at 1970. “Foremost among these factors is the purpose to be served by the new constitutional rule. Desist v. United States, 1969, 394 U.S. 244, 89 S.Ct. 1048, 22 L.Ed.2d 248, 255. Chimel seeks to deter illegal police action, specifically over-broad, exploratory searches of an area not within an arrestee’s immediate control — without a search warrant. This purpose makes Chimel a companion case to Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 and Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. Mapp and Katz are not given retroactive effect. For example, see Linkletter v. Walker, 1965, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 and Desist v. United States. In Linkletter the Court denied habeas corpus relief to a petitioner convicted on evidence illegally seized before Mapp. Similarly, in Desist the Court held that eavesdropping by an electronic device (“seizure of a conversation”) before Katz did not entitle the prisoner to relief. The language of Linkletter, quoted in Desist, is applicable here: all of the cases * * * requiring the exclusion of illegal evidence have been based on the necessity for an effective deterrent to illegal police action. * * We cannot say that this purpose would be advanced by making the rule retrospective. The misconduct of the police * * * has already occurred and will not be corrected by releasing the prisoners involved.” 381 U.S. at 637, 85" }, { "docid": "11859728", "title": "", "text": "of defendants convicted in prior trials.” Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1970), plurality opinion. See also Roberts v. Russell, 392 U.S. 293, 294, 88 S.Ct. 1921, 1922, 20 L.Ed.2d 1100 (1968) : “ We have * * * retroactively applied rules of criminal procedure fashioned to correct serious flaws in the fact-finding process at trial.’ Stovall v. Denno, 388 U.S. 293, 298 [87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199]. See Jackson v. Denno, 378 U.S. 368 [84 S.Ct. 1774, 12 L.Ed.2d 908]; Gideon v. Wainwright, 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799]; Reck v. Pate, 367 U.S. 433 [81 S.Ct. 1541, 6 L.Ed.2d 948]; Linkletter v. Walker, 381 U.S. 618, 639 [85 S.Ct. 1731, 1743, 14 L.Ed.2d 601] n. 20; Johnson v. New Jersey, 384 U.S. 719, 727-728 [86 S.Ct. 1772, 1777-1778, 16 L.Ed.2d 882]; cf. Brookhart v. Janis, 384 U.S. 1 [86 S.Ct. 1245, 16 L.Ed.2d 314].” . Linkletter, supra, at 639, 85 S.Ct. 1731. . Michigan v. Payne, supra, at 52 of 412 U.S., at 1969 of 93 S.Ct. . United States v. Whitaker, supra, at 319 of 447 F.2d. . Desist v. United States, supra. . Cf. Linkletter, supra, at 636 of 381 U.S., 85 S.Ct. 1731. . “[I]n this ease, we are concerned only with whether the exclusionary principle enunciated in Mapp applied to state court convictions which had become • final5 before “5. By final we mean when the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before our decision in Mapp v. Ohio [367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081].” 381 U.S. at 622, 85 S.Ct. at 1734. rendition of our opinion. * * s}: }}« #" }, { "docid": "14839916", "title": "", "text": "(U.S., May 18, 1964). . United States ex rel. Linkletter v. Walker, 323 F.2d 11, 16 (5th Cir. 1963), cert. granted, 84 S.Ct. 1340 (U.S., May 18, 1964) (No. 999 Misc.). See also, Bender, The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio, 110 U.Pa.L.Rev. 650, 670 (1962). . “The traditional Blaekstonian view was that a court does not pronounce a new law, but maintains and expounds the old one; when a decision has been overruled, the first one was merely evidence of the law, which had turned out to be erroneous evidence. See Note, 71 Yale L.J. 907, 908 (1962). That is, a judge finds the law; he does not malee it.” United States ex rel. Linkletter v. Walker, 323 F.2d 11, 14 (5th Cir. 1963), cert. granted 84 S.Ct. 1340 (U.S., May 1964) (No. 999 Misc.). . “[T]lie more modern view, as espoused by Mr. Justice Cardozo and the legal realists, is that judges exercise a law-creating function, although, of course, subject to the limitation of unreasonable ‘judicial legislation.’ See Note, 71 Yale L.J. 907, 911 (1962).” United States ex rel. Linkletter v. Walker, 323 F.2d 11, 14 (5th Cir. 1963), cert. granted 84 S.Ct. 1340 (U.S., May 18, 1964) (No. 999 Misc.). See also, Warring v. Colpoys, 74 App.D.C. 303, 122 F.2d 642, 136 A.L.R. 1025 (1941), cert. denied, 314 U.S. 678, 62 S.Ct. 184, 86 L.Ed. 543. . See Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650 (1964), Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963), and United States ex rel. Durocher v. LaVallee, 330 F.2d 303 (2d Cir., March 26, 1964). . “[T]he purpose of the exclusionary rule ‘is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.’ ” Mapp v. Ohio, 367 U.S. 643, 656, 81 S.Ct. 1684, 1692, (1961). “[T]he exclusionary rule’s purpose of deterrence, unrelated in any way with actual guilt or the probative value of the evidence has been recognized by the writers. See Traynor" }, { "docid": "14839917", "title": "", "text": "71 Yale L.J. 907, 911 (1962).” United States ex rel. Linkletter v. Walker, 323 F.2d 11, 14 (5th Cir. 1963), cert. granted 84 S.Ct. 1340 (U.S., May 18, 1964) (No. 999 Misc.). See also, Warring v. Colpoys, 74 App.D.C. 303, 122 F.2d 642, 136 A.L.R. 1025 (1941), cert. denied, 314 U.S. 678, 62 S.Ct. 184, 86 L.Ed. 543. . See Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650 (1964), Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963), and United States ex rel. Durocher v. LaVallee, 330 F.2d 303 (2d Cir., March 26, 1964). . “[T]he purpose of the exclusionary rule ‘is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.’ ” Mapp v. Ohio, 367 U.S. 643, 656, 81 S.Ct. 1684, 1692, (1961). “[T]he exclusionary rule’s purpose of deterrence, unrelated in any way with actual guilt or the probative value of the evidence has been recognized by the writers. See Traynor ‘Mapp v. Ohio at Large in the Fifty States,’ 1962 Duke L.J. 319, 320, 341; Bender, [The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio, 110 U.Pa. L.Rev. 650, 670 (1962)]; Note 71 Yale L.J. 907, 942 (1962); Note 16 Rutgers L.Rev. 587, 593 (1962).” United States ex rel. Linkletter v. Walker, 323 F.2d 11, 18 (5th Cir. 1963). See also, People v. Hurst, 325 F.2d 891, 895 (9th Cir. 1963), pet. for cert. filed, 32 U.S.L.Week 3360 (U.S. April 14, 1964) (No. 913). . We agree with the Second Circuit that “Gideon and Mapp present quite different questions, and * * * a holding that the former is retroactive by no means compels a similar result” with the latter issue. United States ex rel. Durocher v. LaVallce, 330 F.2d 310 at note 3 (2d Cir., March 26, 1964). . The Court held that if appellate review of conviction is an integral part of the trial system, refusal to give a free transcript for purposes of appeal to indigent defendants violated the Due" }, { "docid": "14294665", "title": "", "text": "* no distinction was drawn between civil and criminal litigation,” (p. 627, 85 S.Ct. p. 1736) the Court meant that in either a civil or criminal case, the new decision might be retrospective or prospective depending on the determination of the factors set forth above. We think that under the reasoning of Linkletter, supra, in applying the test set forth, there are various distinctions between civil and criminal cases bearing on the question as to whether the rule should be applied to the case at bar. In the criminal case, whether the question arises on direct or collateral attack, the defendant has been convicted of a crime and the decision to be made is, the validity or invalidity of the conviction. That decision must be made in the particular case then on appeal or review. The court may also provide in the same case for its retrospectivity Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); or do so in a subsequent case Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed.2d 799 (1963), — retrospective by Doughty v. Maxwell, 376 U.S. 202, 84 S. Ct. 702, 11 L.Ed.2d 650 (1964); or provide for prospective application only by a subsequent case, Mapp v. Ohio, 367 U. S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961),- prospective for judgments after 6/19/61. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). In three cases where the new rule was applied retrospectively, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), “the principle * * * applied went to the fairness of the trial— the very integrity of the fact-finding process.” Linkletter v. Walker, supra, (381 U.S. at 639, 85 S.Ct. at 1743). Other considerations are “the necessity for an effective deterrent to illegal police action,” and on the other hand “the wholesale release of the guilty victims.” Linkletter v. Walker" } ]

[ { "docid": "22234076", "title": "", "text": "now are, actually open for use. The Desplaines River, after being of practical service as a highway of commerce for a century and a half, fell into disuse, partly through changes in the course of trade or methods Of navigation, or changes in its own condition, partly as the result of artificial obstructions. In consequence, it has been out of use for a hundred years; but a hundred years is a brief space in the life of a nation; improvements in the methods of water transportation or increased cost in other methods of transportation may restore the usefulness of this stream; since it is a natural interstate waterway, it is within the power of Congress to improve it át the public expense; and it is not difficult to believe that many other streams are in like condition and require only the exertion of federal control to make'them again important avenues of commerce among the States. If they are to’ be abandoned, it is for Congress, not the courts, so to declare. The policy of Congress is clearly evidenced in the Act of 1899, and, in the present case at least, nothing remains but to give effect to it. It is contended that, supposing the Desplaines is navigable, the purpose of the Act of 1899 was in effect accomplished because appellant or its predecessor, before proceeding with the enterprise, submitted the plans for the proposed dam to the War Department, and that Department “in substance gave its approval,” although it did not formally approve.the plans because it did not consider the Desplaines River a navigable water of the United States. J.i appears, however, that there was no application for- an approval under the Act of 1899; and the Department was not called upon to- exercisé its jurisdiction under that act.. There was an informal hearing before the Secretary, at which the representatives of appellant, assuring him that the Desplaines was' not a navigable stream either in law or in fact, and that the Department had no jurisdiction over it, asked not for a permit, but in effect for an assurance that" } ]

[ { "docid": "22323436", "title": "", "text": "times. Our past decisions have taken due account of the changes and complexities in the circumstances of á river. We do not purport now to lay down any single definitive test. • We draw from the prior decisions in this field and apply them, with due regard to the dynamic nature of the problem', to the particular circumstances presented by the New River. To these circumstances certain judicial standards are to be applied for determining whether the complex of the conditions in respect to its capacity for use in interstate commerce render it a navigable stream within the Constitutional requirements. Both the standards and the ultimate conclusion involve questions of law inseparable from the particular facts to which they are applied. ' Navigability. The power of the United States over its waters which are capable of use as interstate highways arises ■ from the commerce , clause of the Constitution. “The Congress shall have Power ... To regulate Commerce . . . among the several States.” It was held early in our history that the power to regulate commerce necessarily included power over navigation. To make its control effective the Congress may keep the “navi gable waters of the United States” open and free and provide by sanctions against any interference with the country’s water assets. It may- legislate to forbid or license dams in the waters; its power over improve-, ments for navigation in rivers is “absolute.” The states possess control of the waters within their borders, “subject to the acknowledged jurisdiction of the United States under the Constitution in regard to commerce and the navigation of the waters of rivers.” It is this subordinate local control that, even as to navigable rivers, creates between the respective governments-a contrariety of interests relating- to the regulation and pro-, tection of waters through licenses, the operation of structures and the acquisition of projects at the end of the license term. But there is no doubt that the United States, possesses the power to control the erection of structures in navigable waters. The navigability of the New River is, of course,' a" }, { "docid": "22234061", "title": "", "text": "be built under authority of the legislature of a State across rivers and other waterways the navigable portions of which lie wholly within the limits of a single State, provided the location and plans thereof are submitted to and approved by the Chief of Engineers and by the Secretary of War before construction is commenced. ...” There is no contention that the consent of Congress for the building of the proposed dam has been obtained, that its construction has been authorized by the legislature of the State of Illinois, or that the location and plans have been submitted to and approved by the Chief of Engineers and the Secretary of War. The substantial defense is that the Desplaines River, at the site of ,the proposed dam, which is below the City of Joliet and just above the point where the Desplaines joins the Kankakee to form the Illinois River, is not navigable in fact and not within the description “navigable river, or other navigable water of the United States,” as employed in the Act of 1899. The District Court found that there was no evidence of actual navigation within the memory of living men, and that there would be no present interference with navigation by the building of the proposed dam. The Circuit Court of Appeals did not disturb this finding. 256 Fed. Rep. 792, 798. But both courts found that in its natural state the river was navigable in fact, and that it was actually used for the purposes of navigation and trading in the customary way, and with the kinds of craft ordinarily in use for that purpose on rivers of the United States, from early fur-trading days (about 1675) down to the end of the first quarter of the nineteenth century. Details are given in the opinion of the Circuit Court of Appeals, and need not be repeated. Suffice it to say that there was a well-known route by water, called the ChicagoDesplaines-Illinois route, running up the Chicago River .from its mouth on Lake Michigan to a point on the west fork of the south branch; thence" }, { "docid": "22391694", "title": "", "text": "determined.” Pet. for Cert. 8. The efforts to distinguish “fast lands” from public rights in waterways subject to the navigational servitude, however, has been the subject of litigation for more than a century, and in the absence of something more unusual than the situation presented here it is the Hawaiian fishpond that must fit into the decisions of this Court, rather than the latter being tailored to exclude the fishpond. See, e. g., United States v. Republic Steel Corp., 362 U. S. 482 (1960) (deposit of industrial solids into river held to create an “obstruction” to the “navigable capacity” of the river forbidden by § 10 of the Rivers and Harbors Appropriation Act of 1899). The Corps of Engineers has adopted the following general definition of “navigable waters”: “Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity.” 33 CFR §329.4 (1978). “Navigable water” subject to federal admiralty jurisdiction was defined as including waters that are navigable in fact in The Propeller Genesee Chief v. Fitzhugh, 12 How. 443 (1852). See also, e. g., The Belfast, 7 Wall. 624 (1869). And in Ex parte Boyer, 109 U. S. 629 (1884), this Court held that such jurisdiction extended to artificial bodies of water: “Navigable water situated as this canal is, used for the purposes for which it is used, a highway for commerce between ports and places in different States, carried on by vessels such as those in question here, is public water of the United States, and within the legitimate scope of the admiralty jurisdiction conferred by the Constitution and statutes of the United States, even though the canal is wholly artificial, and is wholly within the body of a State, and subject to its ownership and" }, { "docid": "8765629", "title": "", "text": "L.Ed. 847, said: “The Desplaines river, after being of practical service as a highway of commerce for a century and a half, fell into disuse, partly through changes * * * in its own condition, partly as the result of artificial obstructions. In consequence, it has been out of use for a hundred years; but a hundred years is a brief space in the life of a nation. Improvements in the methods of water transportation or increased cost in other methods of transportation may restore the usefulness of this stream; since it is a natural interstate waterway, it is within the power of Congress to improve it at the public expense; and it is not difficult to believe that many other streams are in like condition and require only the exertion of federal control to make them again important avenues of commerce among the states. If they are to be abandoned, it is for Congress, not the courts, so to declare.” The claim is also made that since the passage of the Federal Power Act, the cases just cited are inapplicable. The argument is that Congress was aware that many streams are “no longer useful and have no prospect of being useful as avenues of commerce” and if Congress had intended to give the Commission jurisdiction over all navigable waters, it would not have added the phrase “are used or suitable for use.” To agree with this argument we would have to disregard United States v. Appalachian Power Co., supra. In that case the court, 311 U.S. at page 408, 61 S.Ct. at page 299, 85 L.Ed. 243, said: “When once found to be navigable, a waterway remains so,” and, continuing at page 409 of 311 U. S., at page 300 of 61 S.Ct., 85 L.Ed. 243, “Even absence of use over long periods of years, because of changed conditions, the coming of the railroad or improved highways does not affect the navigability of rivers in the constitutional sense.” The ultimate finding of navigability is a factual question, United States v. Appalachian Power Co., supra, 311 U.S. at page 405," }, { "docid": "16687030", "title": "", "text": "as an improvement for navigation purposes. See Payne, 730 F.2d at 1435, 1437. However, it does not appear altogether incongruous that the creation of navigable water where there was none before could be deemed “an improvement to navigation.” Nevertheless, relying on Ex parte Boyer, 109 U.S. 629, 3 S.Ct. 434, 27 L.Ed. 1056 (1884), and Ballam, the government asserts that its navigational servitude would still dominate Payne’s private property interests even if it is assumed that the river was nonnavigable prior to the Corps’ construction. Yet, as the Supreme Court cautioned in Kaiser Aetna, 444 U.S. at 170-71, 100 S.Ct. at 388, it is important to appraise the purpose for which the concept of “navigability” was invoked in a particular case before attempting to delimit the bounds of the navigational servitude. In Boyer, the Supreme Court held that a navigable, artificial canal used in interstate commerce was public water of the United States and within the legitimate scope of admiralty jurisdiction of the federal courts. There was no question that navigability existed at the time of the incident giving rise to the suit in Boyer and the fact that the canal was not navigable or did not exist at some time prior to the incident made no difference to whether the federal court had jurisdiction. Here, if navigability did not exist when the events giving rise to the taking commenced, the navigational servitude cannot apply. To allow the navigational servitude to attach to nonnavigable water or land which is being made navigable would allow the government to build artificial canals for use in interstate commerce without ever paying just compensation for the land in which a canal was built. Thus, a successful demonstration by the appellant that the river was nonnavigable prior to construction would be a valid basis for upholding the appellant’s general claim that the government’s navigational servitude would not foreclose recovery of compensation for a taking by the government. Navigability is a question of fact determined from the particular circumstances of each case, United States v. Utah, 283 U.S. 64, 87, 51 S.Ct. 438, 445, 75 L.Ed." }, { "docid": "679152", "title": "", "text": "for purposes of public access to surface waters in the United States, the most common one had its genesis in cases dealing with admiralty jurisdiction and the Commerce Clause power. The pronunciamento in The Daniel Ball, 77 U.S. (10 Wall.) 557, 563, 19 L.Ed. 999 (1870), while not involving seawaters, is generally applied: “Those rivers must be regarded as public navigable rivers in law which are navigable in fact.” Anent that statement, one expert has observed that “a navigable river is any river with enough water in it to float a Supreme Court opinion.” Although Kuapa Pond floated shallow-draft boats for fishing purposes, one crucial element of the government’s case was certainly missing prior to the transformation of the pond into the Hawaii-Kai Marina, viz., navigation in interstate commerce. There is no evidence that the barrier beach and the pond’s stone walls ever admitted the possibility of even the shallowest boats floating directly .from Kuapa Pond to the open bay. The government, however, maintains that the principle established in United States v. Appalachian Electric Power Co., supra, applies here, viz., that a waterway must also be considered to be navigable in law if reasonable im provement would render it navigable in fact. Thus, an inquiry under Appalachian must focus on Kuapa Pond in its natural state and entail a comparison of the cost of improvement with need. However, the government has presented no evidence on the subject, other than that the marina may now be or may be made susceptible to interstate commerce. The mere fact that the defendants decided that it was reasonable for them to spend the money necessary to develop Kuapa Pond into a marina as a recreational body of water adjunct to its private residential subdivision, for the apparent purpose of enhancing the property value of homesites thereon and about, does not lead, per se, to the conclusion that it was ever financially reasonable to develop Kuapa Pond into a highway just for interstate commerce by water. A third test of natural-state navigability has been applied in several federal courts in recent years, viz., the “ebb" }, { "docid": "19067024", "title": "", "text": "ordered, that the complaint in each case should be dismissed for the alleged reason that there was no proof of negligence on the part of any employee of the government which could be said to constitute the proximate cause of the death of the Dye brothers and King. Prom the evidence adduced, much of which has been detailed, we think this conclusion of the District Court was clearly erroneous. The Court distinguished cases cited by appellants’ attorneys upon reasoning that, in the present cases, it was not denied that Dam 41 is constructed skillfully under valid authority of an Act of Congress, State of Arizona v. California, 283 U.S. 423, 452, 457, 51 S.Ct. 522, 75 L.Ed. 1154, and that the federal government has authority to create obstructions in the river for the purpose of improving navigation. Apparently the able judge considered that the United States could not lawfully be held responsible for the loss of lives in the cases at bar, inasmuch as the obstruction in the river had been skillfully constructed under valid authority of the Congress. The Court did not seem to regard it as decisive, in the circumstances of the cases, to determine whether the United States owed to the public, including appellants' intestates, the duty to give adequate warning of the risk involved in operating small boats in the Ohio River near Dam 41; and, if so, whether the government had fulfilled that duty. The three decedents undoubtedly were traveling lawfully on the Ohio River. That river is a navigable stream and a public highway of common right upon which small boats have an equal right of navigation with larger craft, including steamboats. See Monongahela River Consolidated Coal & Coke Company v. Lancaster’s Administrator, 169 Ky. 24, 30,183 S.W. 258. See also Floyd County v. Allen, 190 Ky. 532, 227 S.W. 994; 56 Am.Jur., Waters, sec. 209, page 671. Although the dam was constructed under lawful authority, a duty rested upon the operator of the dam to give adequate warning of a dangerous condition, when existing, and a failure to do so would impose liability" }, { "docid": "8765625", "title": "", "text": "of interstate commerce would be affected by such proposed construction, such person shall not construct, maintain or operate such dam or other project works until he shall have applied for and shall have received a license under the provisions of the Act. In the Act, Congress defined “navigable waters” as those parts of streams or other bodies of water “which either in their natural or im proved condition notwithstanding interruptions between the navigable parts of such streams or waters by falls, shallows, or rapids compelling land carriage, are used or suitable for use for the transportation of persons or property in interstate or foreign commerce,” § 3(8), 16 U.S.C.A. § 796(8). However, long before the passage of the Federal Power Act, courts had occasion to define what were “navigable waters” of the United States. An early and instructive discussion of the question confronting us is to be found in The Daniel Ball, 77 U.S. 557, 563, 19 L.Ed. 999. Tn that case the court said: “Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are suscentible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.” The uses to which the stream may be put vary from the carriage of ocean liners to the floating of logs, United States v. Appalachian Power Co., supra, 311 U.S. 405, 61 S.Ct. 291, 85 L.Ed. 243, and there has never been doubt that the navigability referred to was navigability despite the obstruction of falls, rapids, sand bars, carries or shifting currents. United States v. Appalachian Power Co., supra, 311 U.S. 409, 61 S.Ct. 291, 85 L.Ed. 243. In The Montello, 87 U.S. 430, 441, 22 L.Ed. 391, the court said: “The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent and manner of that use. If it" }, { "docid": "22323442", "title": "", "text": "said that the federal power over navigation is enlarged by the improvements to the waterways. It is merely that improvements make applicable to certain waterways the existing power over commerce. In determining the navigable character of the New River it is proper to consider the feasibility of interstate use after reasonable improvements which might be made. Nor is it necessary for navigability that the use should be continuous. The character of the region, its products . and the difficulties or dangers of the navigation influence the regularity and extent of the use. Small traffic compared to the available commerce of the region is sufficient. Even absence of use over long periods of years, because of changed conditions, the coming of the railroad or improved highways does not affect the navigability of rivers in the constitutional sense. It is well recognized too that the navigability may be of a substantial part only of the waterway in question. Of course, these evidences of nonnavigability in whole or in part are to be appraised in totality to determine the effect of all. With these legal tests in mind we proceed to examine the facts to see whether.the 111-mile reach of this river from Allisonia to Hinton, across the Virginia-West Virginia state line, has “capability of use by the public for the purposes of transportation and commerce.” Physical Characteristics. New River may be said to assume its' character as such at the mouth* of Wilson Creek near the North Carolina-Virginia line. From that point it flows first in a northeast and then in a northwest direction something over- 250 miles to Kanawha Falls, West Virginia.. It passes through \"Allisonia and Radford, Virginia, and then Hinton,- West Virginia. It is joined by many tributaries, the largest of which is the Gauley. At Kanawha Falls it changés its name to the Kanawha, a navigable river of commercial importance which joins the Ohio 97 miles below. The whole - territory traversed by the New is broken and mountainous. Between Hinton and Kanawha Falls, the river is swift and the gorge precipitous. Above Hinton the river flows more" }, { "docid": "23244208", "title": "", "text": "the State joins the Gauley River to form the Kanawha River, which flows thence to the state boundary and into the Ohio River. The New and Kanawha Rivers are one continuous interstate stream, which throughout its course constitutes navigable waters of the United States. There are many locations for dam sites on the rivers; four dams have been constructed on the New River at points in Virginia and West Virginia, and a fifth at Hawks Nest, West Virginia, upon which the present litigation centers, is now approaching completion. The United States has constructed ten dams on the Kanawha River for the purpose of improving navigation and is now engaged in construction work on two additional dams on the Kanawha River immediately below the Hawks Nest project, and has in contemplation the construction of a large reservoir at Bluestone, West Virginia, on the New River above the Hawks Nest project, for purposes of flood control, production of power and in aid of navigation. It is alleged that the New and Kanawha Rivers throughout West Virginia constitute a continuous stream which was in its natural condition and still is susceptible of navigation, and is a highway capable of being improved and used for purposes of interstate and foreign commerce; that any obstructions to its navigability will be removed or overcome by improvements initiated by the United States and now in operation or in the course of construction; that the Hawks Nest project will seriously obstruct navigation in the New and Kanawha Rivers, by producing fluctuations in the flow of New River; and that, upon the filing by New-Kanawha Power Company of a declaration of intention to construct the dam, pursuant to § 23 of the Federal Water Power Act, c. 285, 41 Stat. 1063, 1075, 16 U. S. C. 791, 817, the Federal Power Commission determined that the proposed Hawks Nest dam would affect the interests of inter-state commerce and that under the Act the dam could not lawfully be built without a license from the Commission. It is further alleged that the defendant, New-Kanawha Power Company, has obtained from the Public" }, { "docid": "6937595", "title": "", "text": "for maritime commerce. A dam and bridge which prevent a riverboat casino from traveling over 300 yards are presumably not susceptible to commercial shipping, and thus fail the test set forth in The Daniel Ball. In addition, if the enclosed portion of the Fox River at issue here is not navigable upstream or downstream for commercial shipping, it is also impossible to engage in interstate travel from this location. This part of the river, located in Aurora, Illinois, is entirely intrastate. “Those cases in which circuit courts have found dammed waterways navigable for jurisdictional purposes are easily distinguished by the fact that the waterway in question formed the border between two states, thereby rendering it capable of supporting interstate commerce despite the existence of artificial dams blocking downstream flow.” Le-Blanc, 198 F.3d at 359. Because the waterway in this instance is located entirely within the state of Illinois, and given the circumstances of this case, we conclude that this small, enclosed, intrastate section of river is unlikely to qualify as a navigable water under general maritime law. Even so, it is theoretically possible that although the river is impassable for the City Lights I (a boat whose dimensions might differ significantly from the dimensions of other craft), this part of the river could still serve as a continuous highway for other vessels designed for commercial shipping. While the record is silent on this question, outside sources indicate that the Fox River is very likely not navigable. A detailed map reveals that the Fox River is riddled with dams, both within the confines of the city of Aurora and within a short distance upstream and downstream of the city. Despite these apparent obstructions to navigation, it appears from the record that no consideration was given to the possibility that the evidence precluded the river from meeting the legal test for navigability. There was certainly no reference to navigability in the district court opinion. Although Hollywood argues strenuously in its supplemental brief that the absence of navigable waters precluded jurisdiction, this is the first time this claim has been raised. Indeed, Hollywood’s" }, { "docid": "22323455", "title": "", "text": "river above Hinton and the practicality of the improvements. By 1891, $109,-733.21 had been spent. It was in that year estimated $159,000 more would be required to’ complete the project the full length from Wilson Creek to Hinton. Useful navigation moved regularly between Hintpn and near Glen Lyn and between Radford and Allisonia. About, half the reach between Hinton and Allisonia was improved. The Radford-Wiley’s Falls section was never improved! It was reported that conditions had changed and the project should not be completed. The provisions for improvements were repealed in 1902. By 1912 the' region’s need for use of the fiver had so diminished that the army engineers advised against undertaking improvements again, and - even referred to the cost as “prohibitive.” From the use of the Radford-Wiley’s Falls stretch and the evidence as to its’ready, improva-' bility at a low cost for easier keelboat use, we conclude that this section of the New River is navigable. It follows from this, together with the undisputed commercial usé of the two stretches above Radford and Hinton, that the New River from Allisonia, Virginia, to Hinton, West Virginia, is a navigable water of the United‘States. License Provisions. The determination that the New River is navigable eliminates from this case issues which may arise only where the river involved is nonnavigable. But even accepting the navigability of the New River, the respondent urges that certain provisions of the license, which seek to control affairs of the licensee, are unconnected with navigation and are- beyond the power of the Commission, indeed beyond the constitutional power of Congress to authorize. The issue arises because of the prayer of the bill that the respondent be compelled to accept the license as required by law or remove the dam as an obstruction and the answer of the respondent that the license required by law and tendered to it by the Commission contains provisions, unrelated to navigation or the protection of navigable capacity, which are beyond the constitutional authority, of Congress to require on account of the Fifth and Tenth Amendments. There is no contention that the" }, { "docid": "22323487", "title": "", "text": "definition and applied the criteria this court has announced in appraising the effect of the facts found. As shown by the cases cited in the margin, a stream to ‘be navigable in fact must have “a capacity for general and common usefulness for purposes of trade and commerce.” Exceptional use or capability of use at high water or under other abnormal conditions will not suf fice.. Moreover,-the stream must be used, or.available to use, “for commerce óf a substantial and permanent character.” Where the stream “has never been impressed with the character of navigability by past use in commerce, . . '. commerce actually in esse or at least in posse is essential to navigability” and.“a theoretical or potential navigability or one that is temporary, precarious and unprofitable is not sufficient.” The most important criterion by which to. ascertain the navigability of a stream is that navigability in fact must exist under “natural and ordinary conditions.” Application of these tests by the court below to the evidence in the case led to but one conclusion, — that New River has not been, and is not now, a navigable water of the United States. If the findings below had been the other way, the Government would be here strenuously contending that they could not be set aside, as it successfully did in Brewer-Elliott Oil & Gas Co. v. United States, supra. 2. The petitioner contends that the application of the accepted tests to the facts disclosed amounts to a ruling of law, and asserts that error in their application is reviewable. As I read the court’s opinion, the argument is not found persuasive. While apparently endorsing it in the abstract the court, instead of relying on it, adopts two additional tests in the teeth’ of the uniform current of authority. If anything has been settled by our decisions it is that, in order for a water to be found navigable, navigability-in-fact must exist under “natural and ordinary conditions.” -This means all conditions, including a multiplicity of obstacles, falls and rapids which make navigation a practical impossibility. The court now, however, announces" }, { "docid": "22323443", "title": "", "text": "the effect of all. With these legal tests in mind we proceed to examine the facts to see whether.the 111-mile reach of this river from Allisonia to Hinton, across the Virginia-West Virginia state line, has “capability of use by the public for the purposes of transportation and commerce.” Physical Characteristics. New River may be said to assume its' character as such at the mouth* of Wilson Creek near the North Carolina-Virginia line. From that point it flows first in a northeast and then in a northwest direction something over- 250 miles to Kanawha Falls, West Virginia.. It passes through \"Allisonia and Radford, Virginia, and then Hinton,- West Virginia. It is joined by many tributaries, the largest of which is the Gauley. At Kanawha Falls it changés its name to the Kanawha, a navigable river of commercial importance which joins the Ohio 97 miles below. The whole - territory traversed by the New is broken and mountainous. Between Hinton and Kanawha Falls, the river is swift and the gorge precipitous. Above Hinton the river flows more slowly, through a broadei valley and between less rugged mountains. The same may be said of the area above Radford. Throughout the river there is an abundance of water, and the respondent hardly denies that the flowage suffices if other conditions make the New available for navigation. It will conserve discussion to appraise the navigability of the 111-mile stretch between Allisonia and Hinton in three sections which together form the whole reach between these points: the 28 miles from Allisonia to Rad-ford, which the-United States improved. between 1876 and 1883; the 59-mile stretch from. Radford to Wiley’s Falls, Virginia, never improved except at Wiley’s Falls itself; and the 24 miles from Wiley’s Falls across the state line to Hinton, West Virginia, which, like the upper section, the Government improved during 1876-1883. We shall examine chiefly the disputed middle section, for as to the others the evidence of navigability is much stronger and that of obstructions much weaker. For instance, the report of the Chief of Engineers for 1873 refers to certain keelboats operating on the" }, { "docid": "22234075", "title": "", "text": "the present case treated it as not persuasive, because it appeared that evidence was wanting which is present here; and we cannot say that the court below erred in not following it. We concur in the opinion of the Circuit Court of Appeals that a river having actual navigable capacity in its natural state and capable of carrying commerce among the States, is within the power of Congress to preserve for purposes of future transportation, even though it be not at present used for such commerce, and be incapable of such use according to present methods, either by reason of changed conditions or because of artificial obstructions. And we agree that the provisions of § 9 of the Act of 1899 (30 Stat. 1151) apply to such a stream. The act in terms applies to “any . . . navigable river, or other navigable water of the United States”; and, without doing violence to its manifest purpose, we cannot limit its prohibition to such navigable waters as were, at the time of its passage, or now are, actually open for use. The Desplaines River, after being of practical service as a highway of commerce for a century and a half, fell into disuse, partly through changes in the course of trade or methods Of navigation, or changes in its own condition, partly as the result of artificial obstructions. In consequence, it has been out of use for a hundred years; but a hundred years is a brief space in the life of a nation; improvements in the methods of water transportation or increased cost in other methods of transportation may restore the usefulness of this stream; since it is a natural interstate waterway, it is within the power of Congress to improve it át the public expense; and it is not difficult to believe that many other streams are in like condition and require only the exertion of federal control to make'them again important avenues of commerce among the States. If they are to’ be abandoned, it is for Congress, not the courts, so to declare. The policy of Congress" }, { "docid": "6937594", "title": "", "text": "activities). The key to determining whether there are navigable waters is the river’s present navigability where the injury transpired. For example, the Second Circuit recently held that there was no admiralty jurisdiction in a case involving an accident between a kayak and a recreational motor boat on the Hudson River. See LeBlanc, 198 F.3d 353. In LeBlanc, the court held that the river was not navigable at the location of the accident because of rapids, dams, and several waterfalls, despite the fact that other portions of the river were navigable and the river as a whole was historically used for commerce. Accordingly, the LeBlanc court determined that there was no admiralty jurisdiction. The case before us presents a similar factual scenario. Based on the stipulations in this case, it is probable that the waters in which the City Lights I made its 300- yard trips are not “navigable in fact.” The dam and bridge which obstructed the City Lights I indicate — at this location — a river which cannot be used as a highway for maritime commerce. A dam and bridge which prevent a riverboat casino from traveling over 300 yards are presumably not susceptible to commercial shipping, and thus fail the test set forth in The Daniel Ball. In addition, if the enclosed portion of the Fox River at issue here is not navigable upstream or downstream for commercial shipping, it is also impossible to engage in interstate travel from this location. This part of the river, located in Aurora, Illinois, is entirely intrastate. “Those cases in which circuit courts have found dammed waterways navigable for jurisdictional purposes are easily distinguished by the fact that the waterway in question formed the border between two states, thereby rendering it capable of supporting interstate commerce despite the existence of artificial dams blocking downstream flow.” Le-Blanc, 198 F.3d at 359. Because the waterway in this instance is located entirely within the state of Illinois, and given the circumstances of this case, we conclude that this small, enclosed, intrastate section of river is unlikely to qualify as a navigable water under general" }, { "docid": "5801500", "title": "", "text": "United States, even though it has been privately developed and maintained, or passes through private property. The test is generally as developed above; that is, whether the water body is capable of use for purposes of interstate commerce. Canals which connect two navigable waters of the United States and which are used for commerce clearly fall within the test, and themselves become navigable. A canal open to navigable waters of the United States on only one end is itself navigable where it in fact supports interstate commerce * * Kaiser Aetna reasons from this language that since Kuapa Pond was not navigable in its natural state but was artificially rendered navigable, and since it is open to navigable waters of the United States at one end only and does not, in fact, support commerce, under the regulation it does not constitute navigable water of the United States. The government responds: “The short answer is that this portion of the regulations has absolutely no bearing here because Kuapa Pond is not an ‘artificial water body.’ It is artificially improved but not artificially created.\" We do not find this construction unreasonable and have been cited to no authority construing the regulations otherwise.3 On its face, if its purpose is to limit jurisdiction of the Corps, the regulation is not clear. It states at one point: “The test is generally as stated above, that is whether the water body is capable of use for purposes of interstate commerce.” This would appear to cover the marina. The portions of the regulation on which Kaiser Aetna relies deal with canals and apply here only by analogy. To apply those portions here would be to hold that the government voluntarily has surrendered jurisdiction of the Corps with respect to improved natural water bodies in all cases save those where the water body in fact supports interstate commerce, and this despite the government’s protest against such construction of its regulation and despite the generous provisions of the Rivers and Harbors Act as construed by the Supreme Court. Under the circumstances we shall not hold the Corps to" }, { "docid": "22185394", "title": "", "text": "the affidavits that the commission has been duly constituted. Now it is debated by counsel whether the construction of a dam at the place named in New Mexico, a place wholly within the territorial jurisdiction of the United States, is a violation of any of the treaty stipulations above referred to — they being, primarily at least, limited to that portion of the river which forms the boundary line between the two nations ; and also whether the fact that the Rio Grande is partially within the limits of Mexico, would give that nation, under the rules of international law, any right to complain of the total appropriation of its waters for legitimate uses of the people of the United States. Such questions might under some circumstances be interesting and important; but here the Rio Grande, so far as it is a navigable stream, lies as much within the territory of the United States as in that of Mexico, it being where navigable the boundary between the two nations, and the middle of the channel being the dividing line. Now, the obligations of the United States to preserve for their own citizens, the navigability of its navigable waters, is certainly as great as any arising by treaty or international law to other nations or their citizens, and if the proposed dam and appropriation of the waters of the Rio Grande constitute a breach of treaty obligations or of international duty to Mexico, they also constitute an equal injury and wrong to the people of the United States. ¥e may, therefore, properly limit our inquiry to the effect of the proposed dam and appropriation of waters upon the navigability of the Rio Grande, and, in case such proposed action tends to destroy such navigability, the extent of the right of the Government to interfere. The intended construction- of the dam and impounding of the water are charged in the bill and admitted in the answer. The bill further charges that the purpose is to obtain control of the entire flow of the river, and divert and use it for irrigation and" }, { "docid": "22323451", "title": "", "text": "boat, four bateaux, and numerous flat boats, skiffs and canoes — more than twenty vessels in all — were taken down to Hinton, a number of them from points above Radford. This was- accomplished, as the Chief of Engineers’ report shows, despite difficulties occasioned by “weather, low water, and scarcity of labor.” In addition to the testimony of use in the days before railways and good roads, there was a demonstration of the possibility of navigation by a government survey boat with an outboard motor, 16 feet long, five feet wide, drawing 2% to 3 feet, loaded with a crew of five and its survey equipment. This boat made a round trip from the Narrows, just above Wiley’s Falls, to Allisonia, a distance of 72 miles one way, in July, 1936, when the river stage was normal summer low water. While the crew was out of the boat and used poles a number of times, there were no carries or portages. Going upstream it was not necessary to pull or push the boat more than a mile and a quarter and not more than a few hundred feet on the return trip. Use of a stream long abandoned by water commerce is difficult to prove by abundant evidence. Fourteen authenticated instances of use in a century and a half by explorers and trappers, coupled with general historical references to the river as a water route for the early fur traders and their supplies in pirogues and Durham or flat-bottomed craft similar to the keelboats of the New, sufficed upon that phase in the case of the DesPlaines. Nor is lack of commercial traffic a.bar to a conclusion of navigability where personal or private use by boats demonstrates the availability of the stream for the simpler types of commercial navigation. The evidence of actual use of the Radford-Wiley’s Falls section for commerce and for private convenience, when taken in connection with its physical condition, makes it quite plain that by reasonable improvement the reach would be navigable for the type of boats employed on the less obstructed sections. Indeed the evidence" }, { "docid": "22323452", "title": "", "text": "a mile and a quarter and not more than a few hundred feet on the return trip. Use of a stream long abandoned by water commerce is difficult to prove by abundant evidence. Fourteen authenticated instances of use in a century and a half by explorers and trappers, coupled with general historical references to the river as a water route for the early fur traders and their supplies in pirogues and Durham or flat-bottomed craft similar to the keelboats of the New, sufficed upon that phase in the case of the DesPlaines. Nor is lack of commercial traffic a.bar to a conclusion of navigability where personal or private use by boats demonstrates the availability of the stream for the simpler types of commercial navigation. The evidence of actual use of the Radford-Wiley’s Falls section for commerce and for private convenience, when taken in connection with its physical condition, makes it quite plain that by reasonable improvement the reach would be navigable for the type of boats employed on the less obstructed sections. Indeed the evidence detailed above is strikingly similar to that relied upon by this Court in United States v. Utah to establish the navigability of the Colorado from Cataract Canyon to the Utah-Arizona boundary line. There had been seventeen through trips over a period of sixty years from the original exploration; and these together with sporadic trips on parts of the stretch, and considerable use — in connection with gold placer mining — of other parts from 1888 to 1915, sufficed to sustain navigability. Effect of Unprovability. Respondent denied the practicability of artificial méans to bring about the navigability of the New River and the effectiveness of any improvement to make the river a navigable water of the United States. The Government supported its allegation of improvability by pointing out that the use of the section for through navigation and local boating on favorr able stretches of the Radford-Wiley’s Falls reach showed the feasibility of such use and that little was needed in the way of improvements to make the section a thoroughfare for the typical, light commercial" } ]

[ { "docid": "1847949", "title": "", "text": "jurisdiction. 18 U.S.C. § 5032. “Certification is a jurisdictional requirement.” United States v. Juvenile Male (Kenneth C.), 241 F.3d 684, 686 (9th Cir.2001) (internal quotation marks omitted). JF argues that a violation of 18 U.S.C. § 111 is not a crime of violence, and that the District Court erred in assuming jurisdiction over her. A. When exercising jurisdiction over a juvenile, this Court follows what has been termed a “categorical approach” to determine whether an offense is a crime of violence. See Leocal v. Ashcroft, 543 U.S. 1, 8, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (using a categorical approach to determine whether a crime was a crime of violence warranting deportation); United States v. David H., 29 F.3d 489, 494 (9th Cir.1994); United States v. Baker, 10 F.3d 1374, 1393-94 (9th Cir.1993), overruled on other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir.2000). Under the categorical approach, “the generic, rather than the particular, nature of the predicate offense is determinative in defining a crime of violence.” Baker, 10 F.3d at 1394 (internal quotations omitted). A crime “qualifies as a crime of violence ... if and only if the full range of conduct covered by it falls within the meaning of that term.” Valencia v. Gonzales, 439 F.3d 1046, 1049 (9th Cir.2006) (internal quotation marks omitted). We recently held that 18 U.S.C. § 111 sets out three separate crimes. United States v. Chapman, 528 F.3d 1215, 1218 (9th Cir.2008) (“[SJeveral of our sister circuits have held that § 111 creates three distinct offenses, one misdemeanor and two felonies. We agree that this formulation of the statute is required.”) (internal citations omitted). Unfortunately, “[t]he statute itself offers little guidance on the precise contours of the three separate offenses created by § 111.” United States v. Hathaway, 318 F.3d 1001, 1007 (10th Cir.2003); see also Chapman, 528 F.3d at 1218 (“Section 111(a) is inartfully drafted.”). In Chapman, we held that “[vjiolations of the ‘simple assault’ provision constitute misdemeanors. Violations of the ‘all other cases’ or dangerous weapon or bodily harm provisions constitute felonies.” 528 F.3d at 1218 (internal citation" } ]

[ { "docid": "7168613", "title": "", "text": "crime of violence.” United States v. Denson, 728 F.3d 603, 607 (6th Cir. 2013). We conclude that a violation of § 111(b)—the portion of the statute under which Rafidi was convicted — constitutes a “crime of violence” under § 924(c), and the district court accordingly did not err in denying Rafidi’s motion. Rafidi was indicted and found guilty of violating 18 U.S.C. § 924(c)(1)(A)(ii), which provides for a sentence “of imprisonment of not less than 7 years” if a person brandishes a firearm “during and in relation to any crime of violence or drug trafficking crime.” Section 924(c)(3) defines a “crime of violence” for purposes of the subsection as: an offense that is a felony and— (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk -that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. § 924(c)(3). The government argues that § 111 constitutes a “crime of violence” under the “elements clause” of § 924(c)(3)(A). Appellee Br. at 32. We use a “categorical approach” to determine whether an offense constitutes a “crime of violence” for purposes of § 924(c)(3). See Evans v. Zych, 644 F.3d 447, 453 (6th Cir. 2011); see also United States v. Fuertes, 805 F.3d 485, 497-99 (4th Cir. 2015); United States v. Serafin, 562 F.3d 1105, 1107-08 (10th Cir. 2009); United States v. Piccolo, 441 F.3d 1084, 1086-87 (9th Cir. 2006). Under the categorical approach, a court “focuses on the statutory definition of the offense, rather than the manner in which an offender may have violated the statute in a particular circumstance.” Denson, 728 F.3d at 607. “Courts use ‘a variant of this method— labeled (not very inventively) the “modified categorical approach”' — -when a prior conviction is for violating a so-called “divisible statute,” ’ which ‘sets out one or more elements of the offense in the alternative.’ ” Id. (quoting Descamps v. United States, — U.S. -, 133 S.Ct. 2276," }, { "docid": "22880469", "title": "", "text": "129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (internal quotation marks omitted). Conde was convicted under parts (1) and (3) of the following Texas statute: A person commits an offense if, without the effective consent of the owner, the person: (1) enters a habitation ... not then open to the public, with intent to commit a felony ... or (2) remains concealed, with intent to commit a felony ... in a ... habitation; or (3)enters a ... habitation and commits or attempts to commit a felony.... Tex. Penal Code § 30.02(a). The first question raised is whether the court can consult outside documents to determine whether Conde’s prior burglary conviction constitutes a “crime of violence” under the Sentencing Guidelines. USSG § 2L1.2(b)(l). We hold that we can. Under the Sentencing Guidelines, “crime of violence” convictions include state convictions for “burglary of a dwelling.” USSG § 2L1.2 cmt. n. l(B)(iii). There are two ways we can determine whether Conde’s predicate offense qualifies as a “burglary of a dwelling,” and consequently a “crime of violence.” One is to look only to the elements of Conde’s predicate offense. If § 30.02(a)’s elements are the same as or narrower than those of the generic offense of burglary of a dwelling, Conde’s predicate offense qualifies as a “crime of violence.” See Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). The Supreme Court has called this test the categorical approach, as the test looks to the category of conduct the statute criminalizes rather than the facts underlying the defendant’s predicate offense. The second way to determine whether Conde’s prior conviction qualifies as a “burglary of a dwelling” under the Sentencing Guidelines is to look beyond the elements of the statute to a limited set of documents. Under this test, called the modified categorical approach, the court can look at so-called Shepard documents, which include the charging document, written judicial confession, and judgment. United States v. Garcia-Arellano, 522 F.3d 477, 480-81 (5th Cir.2008). The categorical approach is the default test. Cf. Descamps, 133 S.Ct. at 2281. The modified categorical approach, however," }, { "docid": "1847952", "title": "", "text": "McCulligan, 256 F.3d 97, 102 (3d Cir. 2001); United States v. Chestaro, 197 F.3d 600, 607-08 (2d Cir.1999); United States v. Nunez, 180 F.3d 227, 233 (5th Cir.1999). In light of these cases, the plain language of the statute, and our determination that “convictions under this statute require at least some form of assault,” Chapman, 528 F.3d at 1221, JF’s argument that the third offense subsumes five other non-assaultive offenses, because it also lists those who resist, oppose, impede, intimidate, or interfere with designated officers, fails. JF also argues that regardless of whether § 111 lays out three separate offenses, under the categorical approach, the panel must consider the entire range of conduct criminalized by the statute. This is unpersuasive. The categorical approach does not focus on a criminal statute in its entirety, but on the offense or crime. See, e.g., Leocal, 543 U.S. at 7, 125 S.Ct. 377 (The Court “look[s] to the elements and the nature of the offense of conviction.”) (emphasis added); United States v. Gomez-Leon, 545 F.3d 777, 783 (9th Cir.2008) (considering only subsection (c)(3) of Cal. Penal Code § 192); Baker, 10 F.3d at 1394 (“[T]he generic, rather than the particular, nature of the predicate offense is determinative.”) (emphasis added). B. The appropriate question before us, therefore, is whether an “assault involving a deadly or dangerous weapon or resulting in bodily injury,” under 18 U.S.C. § 111, is, categorically, a crime of violence. We hold that it is. Under 18 U.S.C. § 16, a crime of violence is defined as (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. “In construing both parts of § 16, we cannot forget that we ultimately are determining the meaning of the term ‘crime of violence.’ The ordinary meaning of this term, combined with §" }, { "docid": "20777673", "title": "", "text": "offender.” Before a defendant can be classified as a career offender, a court must find that he meets three requirements: (1) he was at least eighteen years old when he committed the offense charged; (2) the offense charged is a felony that qualifies as a crime of violence or a controlled substance offense; and (3) he has at least two prior felony convictions for either crimes of violence or controlled substance offenses. U.S.S.G. § 4Bl.l(a). The Guidelines then define crime of violence in § 4B1.2(a): The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. The final portion of § 4B1.2(a)(2), beginning with “otherwise,” is known as the “residual clause.” See, e.g., United States v. Ford, 560 F.3d 420, 421 (6th Cir.2009). When determining which crimes fall within § 4B1.2(a)’s definition of crime of violence, or the “violent felony” provision of Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), federal courts use the “categorical approach.” Id. at 421-22. The United States Supreme Court recently clarified the scope and application of the categorical approach in Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2283-87, 186 L.Ed.2d 438 (2013). The Descamps Court traced the development of the categorical approach from its first appearance in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to the present. Descamps, 133 S.Ct. at 2283-86. In Taylor, the Court adopted a “formal categorical approach” that precludes sentencing courts from looking “to the particular facts underlying [a defendant’s prior] convictions” when determining whether a pri- or conviction counts as a predicate felony for purposes of the ACCA. Descamps, 133 S.Ct. at 2283 (quoting Taylor, 495 U.S. at 600, 110 S.Ct. 2143) (internal quotation marks omitted). Instead," }, { "docid": "23600503", "title": "", "text": "to show “that diligent search failed to disclose the record, report, statement, or data compilation, or entry.” Fed.R.Evid. 803(10). As public records, the C.I.S. and C.L.A.I.M.S. databases are self-authenticating. See United States v. Loyola-Dominguez, 125 F.3d 1315, 1318 (9th Cir.1997). We reject Valdovinos-Mendez’s arguments on this issue. c. We held in United States v. Grajeda, 581 F.3d 1186, 1189-92 (9th Cir.2009), cert. denied, - U.S. -, 131 S.Ct. 583, 178 L.Ed.2d 425 (2010), that a prior conviction for assault with a deadly weapon or by force likely to produce great bodily injury, under CaLPenal Code. § 245, is a “crime of violence” pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii). Accordingly, the district court properly imposed the 16-level enhancement to Valdovinos-Mendez’s base offense level under the Sentencing Guidelines. D. Valdovinos-Mendez next argues that his Sixth Amendment right to a jury trial was violated by a sentencing enhancement based on a conviction not proved to a jury beyond a reasonable doubt. Pursuant to 8 U.S.C. § 1326(a), the statutory maximum sentence for a defendant convicted of illegal re-entry is two years. But under § 1326(b), the maximum penalty increases to ten years for aliens having a prior felony conviction and twenty years for aliens having a prior aggravated felony conviction. Valdovinos-Mendez asserts that the recent Supreme Court opinion in Nijhawan v. Holder, - U.S. -, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), effectively overruled Almendarez-Torres, 523 U.S. at 235, 118 S.Ct. 1219. Almendarez-Torres allowed the district court at sentencing to find that Valdovinos-Mendez had a prior aggravated felony without submitting the issue to the jury. Because ValdovinosMendez raises an Apprendi issue, we review his claim de novo. United States v. Smith, 282 F.3d 758, 771 (9th Cir.2002). In Almendarez-Torres, the Supreme Court held that a prior conviction under § 1326(b)(2) was a sentencing factor, not an element of the offense. 523 U.S. at 237, 118 S.Ct. 1219; see, e.g., United States v. Gerritsen, 571 F.3d 1001, 1009 (9th Cir.2009); United States v. Mendoza-Zaragoza, 567 F.3d 431, 434-37 (9th Cir.2009), cert. denied, - U.S. -, 130 S.Ct. 420, 175 L.Ed.2d 288 (2009); United States v." }, { "docid": "23063950", "title": "", "text": "A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. . Id. § 4B 1.2(b). . Id. § 4B1.2(a)(2). . Id. (\"The term 'crime of violence’ means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... is burglary of a dwelling. ...’’). . Tex. Health & Safety Code § 481.112(a). . See, e.g., United States v. Price, 516 F.3d 285, 287 (5th Cir. 2008); United States v. Gonzales, 484 F.3d 712, 714-15 (5th Cir. 2005); United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005). . Descamps v. United States, - U.S. -, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). . Tex. Health & Safety Code §481.112(a). We held post -Descamps that §481.112(a), which criminalizes the \"discrete acts” of \"manufacturing, delivering, and possessing with intent to deliver,” is divisible and the parties do not contend otherwise. See United States v. Teran-Salas, 767 F.3d 453, 459 (5th Cir. 2014). . Tex. Health & Safety Code § 481.002(8). . U.S.S.G. § 4131.2(b). . See, e.g., United States v. Carrasco-Tercero, 745 F.3d 192, 195 (5th Cir. 2014) (\"This court employs a categorical approach in determining whether an offense qualifies as a crime of violence under § 2L1.2. ‘[W]e examine the elements of the offense, rather than the facts underlying the conviction or the defendant’s actual conduct, to determine whether an offense meets the definition of a [crime of violence].’ ” (quoting United States v. Ortiz-Gomez, 562 F.3d 683, 684 (5th Cir. 2009))). . See id. . See, e.g., Descamps v. United States, - U.S. -, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). . Id. (emphasis in original).' . Id. . Tex. Health & Safety Code § 481.002(8). . Descamps, - U.S." }, { "docid": "9356851", "title": "", "text": "by two felony convictions for “crimefs] of violence.” Id. § 2K2.1(a)(2). One of the definitions of crimes of violence covers “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id. § 4B1.2(a); see id. § 2K2.1 cmt. n.l. This provision, often called the “elements clause,” mirrors the elements clause in the Armed Career Criminal Act, and we typically interpret them the same way. See United States v. Rede-Mendez, 680 F.3d 552, 555 n.2 (6th Cir. 2012). Both clauses apply only to offenses that require a finding of “violent force — that is, force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). A few ground rules inform whether an offense qualifies as a crime of violence under the elements clause. When an offense of conviction does not list multiple elements in the alternative, it is not “divisible.” Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). And when the relevant statute is not divisible, as all agree is the case here, we apply the “categorical approach” to determine what the state offense entails. Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2284, 186 L.Ed.2d 438 (2013). That means we look only to the offense’s statutory definition along with controlling judicial interpretations of it, rather than at the facts underlying the conviction, to determine whether the offense is a crime of violence. See Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In Michigan, any “person who assaults another person with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon without intending to commit murder or to inflict great bodily harm less than murder is guilty of’ felonious assault, also called assault with a dangerous weapon. Mich. Comp. Laws § 750.82. That language, re-framed as elements, requires “(1)" }, { "docid": "7168618", "title": "", "text": "v. Kimes, 246 F.3d 800, 807 (6th Cir. 2001). We thus consider whether § 111(b) — and not § 111(a), by itself — “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” See § 924(c)(3)(A). More specifically, we must determine whether § 111(b) has as an element the use or attempted use of “violent force — that is, force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (“Johnson I”) (interpreting the “use of physical force” clause under the ACCA); see also Leocal v. Ashcroft, 543 U.S. 1, 11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (construing the term “crime of violence” in 18 U.S.C. § 16— essentially identical to § 924(c)(3) — as “suggesting] a category of violent, active crimes”). We hold that it does. Significantly, a defendant must act “forcibly” to violate § 111. See Kimes, 246 F.3d at 807. The element of force may be satisfied in two ways, each of which is sufficient to categorize § 111(b) as a “crime of violence.” First, this element “may be satisfied by proof of actual physical contact.” United States v. Street, 66 F.3d 969, 977 (8th Cir. 1995); see also United States v. Chambers, 195 F.3d 274, 277 (6th Cir. 1999) (relying on Street’s definition of “forcibly”). Rafidi contends that this element does not require the “use of force” as interpreted by Johnson I be- ' cause “violent force” is not required; rather, Rafidi argues, the element may be established through any degree of physical contact. Appellant Br. at 22-23; see United States v. Dominguez-Maroyoqui, 748 F.3d 918, 921 (9th Cir. 2014) (holding that § 111(a) is not a “crime of violence” for purposes of U.S.S.G. § 2L1.2 because “a defendant may be convicted of violating section 111 if he or she uses any force whatsoever against a federal officer” (internal quotation marks omitted)). But although this might prevent § 111(a) from being a categorical “crime of violence” — an issue" }, { "docid": "5242567", "title": "", "text": "battery,” La.Rev.Stat. § 14:34 — namely, “the intentional use of force or violence upon the person of another,” id. § 14:33 — (2) that is “committed with a dangerous weapon,” id. § 14:34, which here means (a) “any ... instrumentality” that (b) “in the manner used, is calculated or likely to produce death or great bodily harm,” id. § 14:2(3). We therefore repeat our categorical analysis and consider whether the offense, as narrowed, criminalizes conduct that does not involve the use, attempted use, or threatened use of force. See Descamps, 133 S.Ct. at 2281 (explaining that if the court can narrow the statute of conviction pursuant to the modified categorical approach, we “can then do what the cate gorical approach demands”). As we emphasized above, “the ‘force’ necessary to make an offense a COV [is] synonymous with ‘destructive or violent force,’ ” and “offensive touching” is insufficient. Dominguez, 479 F.3d at 348 (citing, inter alia, United States v. Sanchez-Torres, 136 Fed.Appx. 644, 647-48 (5th Cir.2005) (holding that Washington fourth-degree assault statute does not qualify as COV because it could be committed by an “offensive touching”)); see Johnson, 559 U.S. at 140, 130 S.Ct. 1265 (holding that “in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force — that is, force capable of causing physical pain or injury to another person,” and rejecting the government’s argument that the common-law definition of the crime of battery, which “held this element of ‘force’ to be satisfied by even the slightest offensive touching,” should govern the definition under the Armed Career Criminal Act). However, we held that “the touching of an individual with a deadly weapon [does] ereate[ ] a sufficient threat of force to qualify as a crime of violence.” Dominguez, 479 F.3d at 348. We conclude that that the Louisiana crime of aggravated battery under section 14:34, as narrowed under the modified categorical approach to exclude poisoning, is a crime of violence because it necessarily contains, as an element, the use, attempted use, or threatened use of force. Louisiana aggravated battery requires both physical contact" }, { "docid": "14005310", "title": "", "text": "cause harm indirectly (e.g., pulling the trigger on a gun) meets the definition of “physical force,” as used in misdemeanor crime of violence, then it stands to reason-that the same action meets the definition of “physical force,” as used in felony crime of violence. Otherwise, § 4B1.1(a)(1) would only apply to.offenses that explicitly require a punch, kick, or some -other form of touching, that is more than offensive. We therefore find that the “use” of “physical force,” as used in § 4B1.2(a)(l), involves the intentional employment of something capable of causing physical pain or injury to another person, regardless of whether the perpetrator struck the victim’s body. B. The Framework for Comparing Chapman’s Convictions to the Definition of “Crime of Violence” To determine whether a conviction qualifies as a crime of violence, courts use the categorical-approach, which calls for a comparison of “the elements of the statute forming the basis of the defendant’s conviction” with the definition of crime of violence. Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). Under this approach, we “‘look only to the statutory definitions’—i.e., the elements—of a defendant’s prior offense[ ], and not ‘to the particular facts underlying th[e] conviction[ ].’ ” Id. at 2283 (emphasis in original) (quoting Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). In the context of determining whether a conviction is a crime of violence, as defined by § 4B1.2(a)(l), we ask whether “the use or threat of physical force [against the person of another]” is an element of the offense. Brown, 765 F.3d at 189 (alteration in original) (internal quotation marks omitted). If the statute has this element, or “defines the crime more narrowly,” then the conviction can serve as a predicate offense. See Descamps, 133 S.Ct. at 2283. But if the “statute sweeps more broadly than the [Guidelines-defined crime of violence], a conviction under [that statute] is not a career offender predicate even if the defendant actually committed the offense in a way that involved the use (or threatened use)' of physical force against" }, { "docid": "7168619", "title": "", "text": "be satisfied in two ways, each of which is sufficient to categorize § 111(b) as a “crime of violence.” First, this element “may be satisfied by proof of actual physical contact.” United States v. Street, 66 F.3d 969, 977 (8th Cir. 1995); see also United States v. Chambers, 195 F.3d 274, 277 (6th Cir. 1999) (relying on Street’s definition of “forcibly”). Rafidi contends that this element does not require the “use of force” as interpreted by Johnson I be- ' cause “violent force” is not required; rather, Rafidi argues, the element may be established through any degree of physical contact. Appellant Br. at 22-23; see United States v. Dominguez-Maroyoqui, 748 F.3d 918, 921 (9th Cir. 2014) (holding that § 111(a) is not a “crime of violence” for purposes of U.S.S.G. § 2L1.2 because “a defendant may be convicted of violating section 111 if he or she uses any force whatsoever against a federal officer” (internal quotation marks omitted)). But although this might prevent § 111(a) from being a categorical “crime of violence” — an issue that we do not decide — a violation of § 111(6) involving a deadly weapon is meaningfully different than a violation of § 111(a), by itself. As we explained in United States v. Rede-Mendez, 680 F.3d at 558, “[n]ot every crime becomes a crime of violence when committed with a deadly weapon.” But if a statute “ha[s] as an element some degree of, or the threat of, physical force in the more general sense,” then “the use of a deadly weapon may transform” this more general “force into the necessary ‘violent force’ ” to constitute a “crime of violence” within the meaning of Johnson I. Id. Under this reasoning, if a defendant commits a violation of § 111 through intentionally causing physical contact with the federal officer — even if this physical contact is not in itself “capable of causing physical pain or injury,” Johnson I, 559 U.S. at 140, 130 S.Ct. 1265— § 111(6)’s additional required element of using a deadly weapon during this encounter would elevate this lower degree of physical force into" }, { "docid": "10766612", "title": "", "text": "147 (4th Cir.2014). Even if we hold that the North Carolina offense is not a crime of violence, and thus that the district court committed procedural error, we may still affirm Dominguez’s 65-month term of imprisonment if we find that the error did not affect his sentence. United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir.2014). As discussed below, we find that the State Offense is not a crime of violence, and that the district court’s conclusion to the contrary was not harmless. A. 1. First, we assess whether the State Offense is a crime of violence under § 2L1.2. To answer this question, we apply the so-called “categorical approach” set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and recently clarified in Descamps v. United States, — U.S.-, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). “Under that approach, we consider only the elements of the statute of conviction rather than the defendant’s conduct underlying the offense.” Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir.2014). If the State Offense has the same elements as for a “crime of violence” as defined in § 2L1.2, then Dominguez’s prior conviction is a predicate offense under that section. Id. But if the State Offense “sweeps more broadly” by criminalizing more conduct than is captured under § 2L1.2(b)(l)(A)(ii), then the State Offense is not a qualifying offense. Id. (quoting Descamps, 133 S.Ct. at 2283). In essence, we must compare the contours of a “crime of violence” under § 2L1.2 with the breadth of conduct proscribed by N.C.G.S.A. § 14-34.1(a). We begin with § 2L1.2, which states that a 16-level enhancement applies if “the defendant previously was deported ... after ... a conviction for a felony that is ... a crime of violence.” U.S.S.G. § 2L1.2(b)(l)(A)(ii). The text of § 2L1.2 does not expressly define the phrase “crime of violence.” But the application note clarifies that the phrase contemplates any offense “under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person" }, { "docid": "8503535", "title": "", "text": "Holder, 764 F.3d 1077, 1084-86 (9th Cir.2014). To be divisible, a state statute must contain “multiple, alternative elements of functionally separate crimes.” Rendon, 764 F.3d at 1085 (emphasis omitted). If a state statute is divisible, a court may then take into consideration certain documents, such as charging documents or a plea agreement, to determine whether the defendant was convicted of violating a prong of the statute that meets the ACCA’s definition of “violent felony.” Id. at 1083-84. If, however, a state statute defines as criminal more conduct than is included in the ACCA’s definition of “violent felony” and is not divisible, then a conviction under that statute cannot serve as a predicate “violent felony” conviction under the ACCA for application of a mandatory minimum sentence. See Descamps, 133 S.Ct. at 2283-86. B. Application of the Categorical Approach to CPC §211 We turn first to whether CPC § 211 is a categorical match to the ACCA’s definition of “violent felony.” We conclude that CPC § 211 is not a categorical match because it criminalizes conduct not included within the ACCA’s definition of “violent felony.” CPC § 211 prohibits “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” We previously determined that CPC § 211 is categorically a “crime of violence” under U.S.S.G. § 2L1.2 because, in all its applications, CPC § 211 always constitutes either generic robbery or generic extortion, both of which are included in U.S.S.G. § 2L1.2’s definition of “crime of violence.” See United States v. Flores-Mejia, 687 F.3d 1213, 1215-16 (9th Cir.2012); United States v. Becerril-Lopez, 541 F.3d 881, 892-93 (9th Cir.2008). Unlike U.S.S.G. § 2L1.2, however, the ACCA’s definition of “violent felony” includes only generic extortion; it omits generic robbery. See 18 U.S.C. § 924(e)(2)(B)(ii). Thus, although they are useful precedents, Flores-Mejia and Becerril-Lopez do not control the outcome of this ease. Generic extortion, which is an enumerated offense included in the ACCA’s definition of “violent felony,” is defined broadly enough to encompass many violations of CPC §" }, { "docid": "6295822", "title": "", "text": "Law Enforcement Act of 1994, Pub.L. No. 103-322, § 320101(a)(1), 108 Stat. 1796, 2108. Adhering to Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), several other circuits have found post-1994 amendment § 111 to constitute three separate offenses: first, misdemeanor simple assault under § 111(a); second “all other cases” felony assault under § 111(a); and third, felony assault involving a deadly or dangerous weapon or resulting in bodily injury under § 111(b). See, e.g., United States v. Hathaway, 318 F.3d 1001,1006-08 (10th Cir.2003); United States v. Yates, 304 F.3d 818, 821-22 (8th Cir.2002); United States v. McCulligan, 256 F.3d 97, 102 (3d Cir.2001); United States v. Chestaro, 197 F.3d 600, 608 (2d Cir.1999); United States v. Nunez, 180 F.3d 227, 233 (5th Cir.1999). Even though we have not specifically so held, we assumed as much in United States v. Gray, 332 F.3d 491, 492-93 (7th Cir.2003) (finding error in sentence exceeding statutory maximum of § 111(a) where indictment failed to allege violation of § 111(b)). The parties do not dispute the issue, and we think the question is settled. Because Vallery was charged with violating § 111(a) but not § 111(b), only the first two offenses, simple assault and felony “all other cases” assault, are relevant here. The government’s argument is that the indictment properly alleged “all other cases” felonious assault by including in its allegations that Vallery resisted, impeded and interfered with Garver, and, therefore, that the district court was wrong to rule that it only alleged simple assault because physical contact was not alleged. The linchpin in the government’s argument is that the “physical contact rule” of felonious assault, in which physical contact is an element of the crime, applies only to the “assault prong” of § 111(a)(1) and not to the other prohibited conduct— namely, resisting, opposing, impeding, intimidating, and interfering with. Therefore, the government concludes, physical contact is not required to rise to the level of a felony for violations of § 111(a) other than “assaults,” and its absence in the indictment does not preclude a felony conviction. Vallery, on" }, { "docid": "4670414", "title": "", "text": "§ 111 (effective through Jan. 6, 2008)). The lesser offense at issue in this case is the misdemeanor violation of § 111(a), which applies only in cases “where the acts in violation of [§ 111(a) ] constitute ... simple assault.” Chapman, 528 F.3d at 1222 (alterations in original). Because the statute does not define the term, “simple assault,” the term is given its common-law meaning. See United States v. Turley, 352 U.S. 407, 411, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957) (“[W]here a federal criminal statute uses a common-law term of established meaning without otherwise defining it, the general practice is to give that term its common-law meaning.”). Under the common law, “[s]imple assault ‘is committed by either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.’ ” United States v. Johnson, 637 F.2d 1224, 1242 n. 26 (9th Cir.1980) (citations omitted), abrogated on other grounds by Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). See also Chapman, 528 F.3d at 1219-20. The misdemeanor “simple assault” offense at issue here contains all of the elements of the distinct felony assault offenses under § 111, minus the “physical contact” element of the 8-year felony, and minus the “use[j of a deadly or dangerous weapon ... or ... bodily injury” element of the 20-year enhanced felony. See 18 U.S.C. § 111; Chapman, 528 F.3d at 1219. Therefore, simple assault is a lesser-included offense of both the 8-year and the 20-year felonies described in § 111. B. Rivera Was Not Entitled to an Instruction on Simple Assault. Although we conclude that simple assault is a lesser-included offense of felony assault on an officer under § 111, we do not agree that Rivera was entitled to the lesser-included offense instruction under the circumstances of this case. “[T]o warrant a lesser[-]included offense instruction the evidence at trial must be such that a jury could rationally find the defendant guilty" }, { "docid": "14979079", "title": "", "text": "felony pursuant to § 3559, and sentenced him to life imprisonment. Campbell now appeals, maintaining that the district court erred in sentencing him. II. We first consider whether infliction of bodily injury and use of a deadly or dangerous weapon in § 111(b) constitute sentencing factors or offense elements. Section 111 provides in relevant part: (a) In general. Whoever ... forcibly assaults, resists, opposes, impedes, intimidates or interferes with[any designated federal officer] while engaged in ... the performance of official duties ... shall, where the acts in violation of this section constitute only simple assault, be ... imprisoned not more than one year, ... and in all other cases, be ... imprisoned not more than three years.... (b) Enhanced Penalty. Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be ... imprisoned not more than ten years.... Thus, by its own terms, § 111 provides maximum penalties of (i) one year imprisonment for simple assault, or an assault not involving physical contact, (ii) ten years imprisonment for assault involving use of a dangerous or deadly weapon or infliction of bodily injury, and (iii) three years imprisonment for all other assaults. See United States v. Ramirez, 233 F.3d 318, 321-22 (5th Cir.2000); United States v. Chestaro, 197 F.3d 600, 606 (2nd Cir.1999). Two years ago, in Jones v. United States, 526 U.S. 227, 229, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Supreme Court held that “serious bodily injury” constituted an offense element under the federal carjacking statute, 18 U.S.C. § 2119 (1988 ed. Supp. V). Like § 111, the carjacking statute at issue in Jones contained subsections, which increased a defendant’s penalty in proportion to the aggravated nature of the crime. See 18 U.S.C. § 2119(l)-(3). Under subsection 2119(1), the offense of simple carjacking carried a maximum sentence of 15 years; under subsection 2119(2), carjacking resulting in “serious bodily injury” carried a maximum sentence of 25" }, { "docid": "5242560", "title": "", "text": "Under the modified categorical approach, we may “consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction. The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime,” id. at 2281, or, as the case may be, assess whether the crime of conviction has as an element the use, attempted use, or threatened use of physical force. Those records are “generally limited to ... the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). “By reviewing the extra-statutory materials approved in those cases, courts c[an] discover Svhich statutory phrase’ contained within a statute listing ‘several different’ crimes, ‘covered a prior conviction.’ ” Descamps, 133 S.Ct. at 2285 (citations omitted). A. As an initial matter, we agree with Herrera-Alvarez that Louisiana Revised Statutes section 14:34 as a whole criminalizes conduct that would not entail the “use, attempted use, or threatened use of force.” U.S.S.G. § 2L1.2 cmt. (l)(B)(iii). Under § 2L1.2, “the ‘force’ necessary to make an offense a COV [is] synonymous with ‘destructive or violent force’ “offensive touching” is insufficient. Dominguez, 479 F.3d at 348 (citing, inter alia, United States v. Sanchez-Torres, 136 Fed.Appx. 644, 647-48 (5th Cir.2005) (holding Washington fourth-degree assault statute does not qualify as a crime of violence because it could be committed by an “offensive touching”)); see Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (holding, in a case arising under the Armed Career Criminal Act, that “in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force — that is, force capable of causing physical pain or injury to another person”). “However, the touching of an individual with a deadly weapon creates a sufficient threat of force" }, { "docid": "17455051", "title": "", "text": "and second conditions for satisfying the requirements of the savings clause and employing § 2241. They dispute whether he satisfies the third condition. We begin with the new interpretation of statutory law. 1. Descamps v. United States In Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), the Supreme Court clarified the correct approach for determining whether state-law offenses qualify as “violent felonies” for the purpose of a sentence enhancement under the Armed Career Criminal Act (ACCA) of 1984. 18 U.S.C. § 924(e)(1). The Court foreclosed the use of the modified categorical approach for criminal statutes that consist of a single set of elements that define the crime “more broadly than the generic offense.” Descamps, 133 S.Ct. at 2283. Instead, it directed the lower courts to use the categorical approach to compare the elements of the generic crime to the elements in the statute that forms the basis of the defendant’s prior conviction. Id. at 2281-82. To the extent the statute covers a “broader swath of conduct” than the generic offense, the former cannot serve as a predicate felony for an ACCA enhancement. Id. at 2281-82. In the same year, the Fourth Circuit applied Descamps to Maryland’s second-degree assault statute — one of Hill’s predicate felonies — and concluded it was not a “violent felony” under the ACCA because the statute defined assault more broadly than the generic crime. Royal, 731 F.3d at 342. “Maryland’s second-degree assault statute reaches any unlawful touching, whether violent or nonviolent and no matter how slight”; thus, “ ‘convictions under the statute ... cannot categorically be crimes of violence.’ ” Id. (quoting Karimi v. Holder, 715 F.3d 561, 568 (4th Cir. 2013)). The Government concedes that, after Descamps and Royal, Maryland’s second- degree. assault statute no longer constitutes a crime of violence for the purpose of the career-offender enhancement. USSG § 4B1.2(a) (2001). Thus, were Hill to be sentenced today, he would not qualify as a career offender. The Government further concedes that Descamps and Royal apply retroactively. The problem lies with the third condition — whether a misapplied sentence" }, { "docid": "7168615", "title": "", "text": "2281, 186 L.Ed.2d 438 (2013)). “If [the underlying] statute could be violated in a way that would constitute a crime of violence and in a way that would not, we look beyond the statutory language and examine” a limited set of documents “to determine whether the conviction necessarily depended on the commission of a crime of violence.” United States v. Rede-Mendez, 680 F.3d 552, 556 (6th Cir. 2012). We thus turn to 18 U.S.C. § 111, a “rather convoluted statute.” United States v. Gagnon, 553 F.3d 1021, 1026 (6th Cir. 2009). Section 111 provides as follows: (a) In general. — Whoever— (1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated [as a federal officer] while engaged in or on account of the performance of official duties; or (2) forcibly assaults or intimidates any person who formerly served [as a federal officer] on account of the performance of official duties during such person’s term of service, shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both. (b) Enhanced penalty. — Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon ... or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both. 18 U.S.C. § 111. This statute sets forth “three separate crimes whose elements must all be submitted to a jury.” Gagnon, 553 F.3d at 1024. Two crimes are established in § 111(a): a misdemeanor (“cases involving ‘only simple assault’ ”) and a felony (“all other cases”). Id. (quoting 18 U.S.C. § 111(a)). We explained the difference between these two crimes in Gagnon. A misdemeanor violation of § 111(a) occurs when a defendant forcibly commits “any of the prohibited actions listed in § 111(a)(1) and § 111(a)(2), while ‘all other" }, { "docid": "174607", "title": "", "text": "the Pennsylvania terroristic threats statute are not “crimes of violence” as defined by the Guidelines. We conclude that, in light of the Supreme Court’s explanation in Descamps, Brown’s convictions under 18 Pa. Cons. Stat. § 2706 are not “crimes of violence” for purposes of the Guidelines’ career offender enhancement. In effect, Descamps abrogated the portion of Mahone that held otherwise. A. The Career Offender Enhancement Under the Guidelines, the career offender enhancement applies to a defendant if: (1) [he] was at least eighteen years old at the time [he] committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) [he] has at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4Bl.l(a). The issue here is the third criterion — whether the 2004 (or 2005) conviction is a “crime of violence.” How we go about deciding that issue, and what we can consider in doing so, takes up much of what follows. The Guidelines define a “crime of violence” in relevant part as any crime punishable by more than a year of imprisonment that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § dBl^aXl). Sentencing courts examining a prior conviction to determine whether it is a federally defined “crime of violence” must apply a categorical approach. United States v. Abbott, 748 F.3d 154, 157 (3d Cir.2014) (citing Descamps, 133 S.Ct. at 2283). Under this approach sentencing courts “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime — ie., the offense as commonly understood. The prior conviction qualifies as an ACCA predicate only if the statute’s elements are the same as, or narrower than, those of the generic offense.” Descamps, 133 S.Ct. at 2281. In practice, courts “may ‘look only to the statutory definitions’ — ie., the elements— of a defendant’s prior offenses, and not ‘to the particular facts underlying" } ]

[ { "docid": "8219661", "title": "", "text": "County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940); Linkletter v. Walker, supra. . See United States v. Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49 (1801); Carpenter v. Wabash Railroad Company, 309 U.S. 23, 60 S.Ct. 416, 84 L.Ed. 558 (1940); United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763 (1934); Vanderbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941). . United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969); citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). . United States v. Care, supra at 542, 40 C.M.R. at 254. . See United States v. Schmeltz, 23 U.S.C.M.A. 377, 50 C.M.R. 83, 1 M.J. 8 (1975), affirmed in part and reversed in part, 24 U.S.C.M.A. 93, 51 C.M.R. 266, 1 M.J. 273 (1976), and the cases cited concerning this subject in United States v. Cordova, 4 M.J. 604 (A.C.M.R. 1977). . See United States v. Walls, 3 M.J. 882 (A.M. C.R. 1977), petition granted, 4 M.J. 196 (C.M.A. 1977). COOK, Senior Judge, dissenting: Because I believe that the Government severed an attorney-client relationship in this case, without good cause, I cannot join my fellow judges in affirming this case. I Appellant was tried by court-martial on 28 April 1976 and sentenced inter alia, to a dishonorable discharge and confinement at hard labor for 18 months. On 28 April 1976 appellant requested in writing that, in accordance with the terms of Article 70, Uniform Code of Military Justice, he be represented before this Court by appellate defense counsel appointed by The Judge Advocate General of the Army. On 10 June 1976, “pursuant to the provisions of Article . . . 70(c)(1), Uniform Code of Military Justice, . . . The Judge Advocate General . . . directed that the accused ... be represented, . by the Chiefs ... of the Defense Appellate Division and . such other appellate counsel as Pie] may detail.” On 28 October 1976, Captain Burén R. Shields, III, filed a" } ]

[ { "docid": "12856363", "title": "", "text": "well as constitutional. O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969). When the use of courts-martial has impinged on constitutional rights, the remedy has been to limit the exercise of their jurisdiction rather than to alter the nature of the tribunal, for courts-martial are not fundamentally unfair. Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973). The findings of guilty and the sentence are affirmed. Judge WATKINS and Judge LEWIS concur. . Article 120(a) of the Uniform Code of Military Justice, 10 U.S.C. § 920(a) (1976), defines rape as sexual intercourse, by any person subject to the Code, “with a female not his wife, by force and without her consent.” Article 120(c) of the Code, 10 U.S.C. § 920(c) (1976), provides that “penetration, however slight, is sufficient to complete” the offense. The maximum penalty is death. Any sentence which, as approved by an Army convening authority, includes a punitive discharge or confinement for one year or more requires review by this Court. Article 66(b), Uniform Code of Military Justice, 10 U.S.C. § 866(b) (1976). . Article 39(a), Uniform Code of Military Justice, 10 U.S.C. § 839(a) (1976). . Of the ten officers detailed to the court-martial, three were excused from appellant’s trial. None of the remaining seven was challenged. Since concurrence of only two-thirds of the members was required to convict, it is possible that only five members concurred in the findings of guilty. Article 52(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 852(a)(2) (1976). In view of the importance and nature of the issue, we elect not to consider the possible consequences to appellant of not having raised the issue at the trial. Cf. United States v. Crawford, 15 U.S.C.M.A. 31, 35 C.M.R. 3 (1964); see also United States v. Jackson, 3 M.J. 101, 103-04 (C.M.A.1977) (Cook, J., dissenting). . See, e. g., United States v. Corl, 6 M.J. 914 (N.C.M.R.1979), certified for review, 6 M.J. 304 (C.M.A.1979) (other grounds), pet. filed, 7 M.J. 254 (C.M.A.1979); United States v. Meckler, 6 M.J. 779, 780 (A.C.M.R.1978), pet. denied, 7 M.J." }, { "docid": "21568973", "title": "", "text": "the record demonstrates that the accused did not labor under such a misapprehension as to the confinement that could be legally imposed as to render his plea improvident. In the appellant’s case the advice as to the maximum authorized period of confinement was substantially incorrect. See United States v. Harden, supra. There is no demonstration in the record of trial that the appellant was intelligently indifferent to an error by the trial judge as to this aspect of the maximum authorized punishment and that he still desired to plead guilty. We will not presume any other waiver of this important due process right from a silent record. See Boykin v. Ala bama, 395 U.S. 238, 241-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). The decision of the United States Army Court of Military Review is reversed. The findings of guilty and the sentence are set aside. The pleas of guilty are vacated. A rehearing may be ordered. Judge PERRY concurs. COOK, Judge (dissenting): During the providency inquiry, the appellant was advised that the two offenses in question were multiplicious for sentencing purposes and the maximum imposable confinement was 10 years. The Court of Military Review held that as the case was tried after the effective date of United States v. Courtney, 1 M.J. 438 (C.M.A.1976), the maximum imposable confinement was limited to 2 years, i. e., the sentence prescribed for a violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. See United States v. Jackson, 3 M.J. 101 (C.M.A.1977). However, that court further held the pleas were provident because the record demonstrated “that the error was [not] the producing cause of the plea.” United States v. Castrillon-Moreno, 3 M.J. 894, 897 (A.C.M.R.1977). Appellant submits before this Court, citing United States v. Harden, 1 M.J. 258 (C.M.A.1976), that the erroneous advice as to the maximum imposable punishment rendered his pleas of guilty improvident. In Harden, the Court observed: A plea of guilty may be improvident because it is “predicated upon a substantial misunderstanding on the accused’s" }, { "docid": "23552816", "title": "", "text": "Opinion COOK, Judge: We initially granted review to consider three assignments of error. Subsequently, we vacated that part of the grant as related to an alleged error resulting from the post-conviction transfer of the accused from the situs of trial. See United States v. Vick, 4 M.J. 235 (C.M.A. 1978). Further examination of the alleged insufficiency of the trial judge’s inquiry into the understanding of the accused and counsel for both parties of the terms of a pre-trial agreement on a plea of guilty satisfies us that the inquiry was adequate. United States v. King, 3 M.J. 458 (C.M.A.1977); United States v. Green, 1 M.J. 453 (C.M.A. 1976). As presented in the petition for grant of review, the remaining question is whether the accused was “substantially prejudiced by the court members’ failure to follow the military judge’s sentencing instructions.” The accused was convicted of robbery and the subsequent removal of the victim to a field, where he was bludgeoned into unconsciousness. The authorized punishment for these offenses included confinement at hard labor for 13 years. Under the Uniform Code of Military Justice, in a case tried by court members, a sentence that includes confinement at hard labor in excess of 10 years must have the concurrence of three-fourths of the members present; only two-thirds of them need agree if the sentence includes confinement for 10 years or less. Article 52(b)(2), (3), UCMJ, 10 U.S.C. § 852(b)(2), (3). Sentence deliberation by the court members begins with a general discussion of the matter, proceeds to presentation of proposals for specific sentences, and concludes with a vote by secret written ballot on each proposal, starting “with the lightest.” At trial, the judge’s sentence instructions accorded with the law. In pertinent part, he advised the court members that the maximum punishment included confinement for 13 years, but they were “at liberty to arrive at any lesser legal sentence.” Instructing on the voting procedure, he advised them as follows: After completion of discussion and the written proposal of sentences on slips of paper by the members who desire to propose them, the junior member will" }, { "docid": "12032144", "title": "", "text": "this advice, and appellant persisted in his pleas of guilty to the charges. On appeal, the Court of Military Review concluded that “the ... [military] judge misadvised appellant” when he told him “that the maximum punishment ... included confinement for ... [21] years.” According to that court, the maximum punishment for the charges and specifications as finally accepted was 3V2 years’ confinement, a bad-conduct discharge, and ancillary punishments. To “cure the prejudice,” the court set aside the dishonorable discharge, substituting therefor a bad-conduct discharge — which under their method of calculation was compelled by law — and affirmed the remaining sentence as finally approved by the convening authority. For purposes of this appeal, we accept the computation of the maximum punishment by the court below. Consequently, the real questions we must answer are: Is appellant entitled to have his guilty pleas set aside because he was “misadvised” by the military judge; or, Has the error been cured by the Court of Military Review’s reassessment of the sentence? Although we have rejected a mathematical formula for calculating when the misun derstanding converts into reversible error, we have recognized that “[a] plea of guilty may be improvident because it is predicated upon a substantial misunderstanding on the accused’s part of the maximum punishment to which he is subject.” United States v. Windham, 15 U.S.C.M.A. 523, 525, 36 C.M.R. 21, 23 (1965).” United States v. Harden, 1 M.J. 258, 259 (C.M.A. 1976). We look to “all the circumstances of the case presented by the record ... to determine whether the misapprehension of the maximum sentence affected the guilty plea, or whether that factor was insubstantial in his decision to plead.” United States v. Hunt, 10 M.J. 222, 223-24 (C.M.A. 1981); United States v. Walls, 9 M.J. 88 (C.M.A. 1980). Examining the circumstances found in this record, we note: First — the Government elected to plead the numerous bad-check offenses in six separate specifications. Had the Government so chosen, it could have elected to plead at least 87 specifications. Were that the case, the maximum sentence the court-martial could have imposed would have been" }, { "docid": "12131058", "title": "", "text": "in total years confinement to which the accused was subject, we are convinced there was no “substantial misunderstanding” on the accused’s part so as to render his guilty plea improvident. United States v. Harden, 1 M.J. 258 (C.M.A.1976); United States v. Frangoules, 1 M.J. 467 (C.M.A.1976); see United States v. Martin, 4 M.J. 852 (A.C.M. R.1978); United States v. Nevills, 1 M.J. 1077 (N.C.M.R.1977). On that same basis, and in further light of the fact that the punishment imposed on the accused by the military judge included only one year of confinement, we are also convinced the accused was not prejudiced as to sentence. See United States v. Saulter, 1 M.J. 1066 (N.C.M.R.1976). For the reasons stated, the approved findings of guilty and the sentence are correct in law and fact and, on the basis of the entire record, are AFFIRMED. EARLY, Chief Judge, and HERMAN and ARROWOOD, Judges, concur. . All in violation of Article 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934. . In violation of Article 92, Code, 10 U.S.C. § 892, supra. . United States v. McCarthy, 2 M.J. 26 (C.M.A. 1976). . This advice is contained in Interim Change 78-2 (Headquarters USAF/JAJ Letter, 1 June 1978) to Air Force Pamphlet 111-6, Procedure Guides for Courts-Martial (19 April 1976). The advice given by the military judge was essentially as recommended in Air Force Pamphlet 111-6, Chapter 2, p. 7, prior to the Interim Change. . United States v. Wright, 5 M.J. 106 (C.M.A. 1978), cited by appellate government counsel, demonstrates the kind of changed conditions that caused the Court of Military Appeals to hold the military judge’s denial of a motion for withdrawal of a request for trial by military judge alone to be an abuse of discretion. . Although Article 134, Code, supra, does not specifically mention cocaine, paragraph 213b, Manual for Courts-Martial, United States, 1969 (Rev.), states that it is a violation of Article 134 “. . . wrongfully to possess or use marihuana or a habit forming narcotic drug.” Elsewhere in the Manual it is stated that the maximum" }, { "docid": "21568985", "title": "", "text": "States, 441 F.2d 1219 (7th Cir. 1971), concluded such an error was not sufficient to render a plea of guilty improvident and this would appear to be entirely consistent with Richardson and Parker. Accordingly, I likewise conclude that an accused “assumes the risk of ordinary error” in assessing the maximum imposable punishment as it relates to the voluntariness of his pleas of guilty. While United States v. Harden, supra, teaches that an extraordinary case may warrant a contrary result, I further conclude that extraordinary circumstances are not presented in the case at hand and the appellant’s pleas of guilty were providently entered. See United States v. Zemartis, supra. Left for consideration is whether the trial judge’s incorrect determination of the maximum imposable confinement prejudiced the appellant as to the sentence adjudged. United States v. Frangoules, supra. The Court of Military Review considered the issue and upon reassessing the sentence, approved it. That court has the authority to either reassess the sentence or order a rehearing thereon and this Court will not normally interfere with its authority in such matters. See United States v. Zunino, 15 U.S.C.M.A. 179, 35 C.M.R. 151 (1964); United States v. Christopher, 13 U.S.C.M.A. 231, 32 C.M.R. 231 (1962). The court’s action on the matter was not inappropriate as a matter of law. I would, therefore, affirm the decision of the Army Court of Military Review. . The Court of Military Review also reassessed the sentence on the basis that the appellant was sentenced on the misapprehension of the maximum sentence, but concluded the sentence, as approved by the convening authority, was appropriate. United States v. Castrillon Moreno, 3 M.J. 894, 897-8 (A.C.M.R.1977). . The maximum imposable punishment was escalated by the admission of three previous convictions. See section B, para. 127c, Manual for Courts-Martial, United States, 1969 (Revised edition). . As noted in the majority opinion, I also authored United States v. Brown, 1 M.J. 465 (C.M.A.1976), which cited United States v. Harden, 1 M.J. 258 (C.M.A.1976). However, Brown held that the accused’s pleas of guilty were not improvidently entered because the military judge failed to" }, { "docid": "21568974", "title": "", "text": "the providency inquiry, the appellant was advised that the two offenses in question were multiplicious for sentencing purposes and the maximum imposable confinement was 10 years. The Court of Military Review held that as the case was tried after the effective date of United States v. Courtney, 1 M.J. 438 (C.M.A.1976), the maximum imposable confinement was limited to 2 years, i. e., the sentence prescribed for a violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. See United States v. Jackson, 3 M.J. 101 (C.M.A.1977). However, that court further held the pleas were provident because the record demonstrated “that the error was [not] the producing cause of the plea.” United States v. Castrillon-Moreno, 3 M.J. 894, 897 (A.C.M.R.1977). Appellant submits before this Court, citing United States v. Harden, 1 M.J. 258 (C.M.A.1976), that the erroneous advice as to the maximum imposable punishment rendered his pleas of guilty improvident. In Harden, the Court observed: A plea of guilty may be improvident because it is “predicated upon a substantial misunderstanding on the accused’s part of the maximum punishment to which he is subject.” United States v. Windham, 15 U.S.C.M.A. 523, 525, 36 C.M.R. 21, 23 (1965); United States v. Towns, 22 U.S.C.M.A. 600, 48 C.M.R. 224 (1974). Id. at 259. Accord, United States v. Brown, 1 M.J. 465 (C.M.A.1976). For reasons hereafter discussed, I conclude that while a misapprehension of the maximum punishment at trial may exist, only under extraordinary circumstances will there be a sufficient nexus between the pleas of guilty and erroneous advice as to the maximum imposable punishment to require rejection of the pleas of guilty. Thus, I disagree with the holding of the majority that appellant’s pleas of guilty were improvidently entered. The genesis of the law of this Court as to the effect of such erroneous advice on pleas of guilty is United States v. Zemartis, 10 U.S.C.M.A. 353, 27 C.M.R. 427 (1959). In that case, an accused, who was represented by a non-lawyer counsel, received a sentence which exceeded that set forth during the providency inquiry. Specifically, the court adjudged a bad-conduct" }, { "docid": "8306286", "title": "", "text": "the accused was not denied a speedy disposition of the charge on which he was tried. Accused’s second assignment of error deals with whether the offense should have been charged as a violation of Article 92, 10 U.S.C.A. § 892, which carries a maximum period of confinement of 2 years, rather than being alleged, as it was, as a violation of Article 134, 10 U.S.C.A. § 934, which authorizes confinement for 10 years. In United States v. Courtney, 24 U.S.C.M.A. 280, 51 C.M.R. 796, 1 M.J. 438 (1976), the Court decided that the charging choice was improper, but in United States v. Jackson, 3 M.J. 101 (C.M.A.1977), it denied retroactive application of Courtney. As the accused was tried before the effective date of the Courtney decision, he cannot predicate a claim for relief upon it. The decision of the United States Army Court of Military Review is affirmed. . The providence of the accused’s plea of guilty is not in issue. As part of the pretrial agreement with the convening authority, other charges were dismissed; also the accused indicated at trial that he was pleading guilty not to get a “good deal” on the sentence, but because he was in fact guilty of the offense charges. See United States v. Frangoules, 24 U.S.C.M.A. 317, 52 C.M.R. 28, 1 M.J. 467 (1976). . ABA Standards, The Function of the Trial Judge § 3.8(a) (1972) provides: The trial court has the ultimate responsibility for proper management of the criminal calendar and should take measures to insure that cases are listed on the calendar and disposed of as promptly as circumstances permit. FLETCHER, Chief Judge (concurring in the result): I can concur in the result ordered as my review of the record and pleadings convinces me that the government proceeded with the requisite diligence mandated by our decisions. I must write because a critical problem is left unaddressed. The facts of this case, although not disclosed in the majority opinion, give rise to the question of the ultimate responsibility for the criminal docket. After the referral of a matter to a court with" }, { "docid": "12132825", "title": "", "text": "drug offenses alleged in Charge I. The trial judge instructed the court members that the maximum confinement they could impose was 29 years, and, if Courtney is applied, the maximum confinement instructed should have been 15 years for all offenses of which the accused was found guilty. The approved sentence of the court extended to only two years confinement at hard labor, however, and the accused was convicted of a broad variety of serious offenses against military authority, persons, and property, as well as offenses involving several types of illicit drugs. Furthermore, the record indicates that on 5 May 1976, after the accused served less than 16 of the 24 months confinement and had forfeitures collected for a similar period, the unexecuted portion of his sentence was remitted and he was placed in excess leave status. The adverse effects of any error in instruction on the maximum punishment, when considered in the light of these facts, appear, in the words of Judge Cook in United States v. Mosely, supra note 1, to have been fully dissipated, and we find no fair risk of prejudice to the accused. For the foregoing reasons, the findings of guilty and the sentence are, once again, AFFIRMED. BUEHLER, Senior Judge, concurs. . United States v. Courtney, 24 U.S.C.M.A. 280, 51 C.M.R. 796, 1 M.J. 438 (1976); United States v. Moseiy and Sweisford, 24 U.S.C.M.A. 173, 51 C.M.R. 392, 1 M.J. 350 (1976); United States v. Graves, [order] (6 August 1976); United States v. Jackson, [order] (2 July 1976). . 2 M.J. 26 (24 September 1976). . The accused was also found guilty, pursuant to his pleas, of a six-day absence without leave and willful damage to government property, and despite his pleas, of two failures to obey verbal orders and communication of a threat, in violation of Articles 86, 92, 108, and 134, Code, supra, but they present no questions of law or fact. . Relford v. Commandant, supra, 401 U.S. at 359, 91 S.Ct. 649. . But see Cole v. Laird, 468 F.2d 829 (5th Cir. 1972). In this regard, an additional basis for" }, { "docid": "12135525", "title": "", "text": "1 M.J. 438 (1976); United States v. Graves [order] (6 August 1976); and United States v. Mosely (and Sweisford), both 24 U.S. C.M.A. 173, 51 C.M.R. 392, 1 M.J. 350 (1976). Although the issues in the case before us are the same as those in the cited cases, here, the accused was tried by special court-martial, a forum for which the maximum sentence is limited by statute to bad conduct discharge, confinement at hard labor for six months, hard labor without confinement for three months, forfeiture of two-thirds pay per month for six months and reduction to the lowest enlisted grade. Article 19, Code, supra; Manual for Courts-Martial, 1969 (Rev.), paragraph 126e. Consequently, the maximum permissible penalty in the instant case was less than that authorized for any one of the several offenses of which the accused pleaded guilty, whether charged as violations of Article 134 or Article 92 and irrespective of the multiplicity aspect of the offenses. Accordingly, we find that issues concerning the propriety of charging offenses as violations of Article 134, rather than Article 92, the providency of an accused’s pleas of guilty to such offenses, and the multiplicious nature of simultaneous possession of different drug offenses are not material in cases tried by special court-martial. Cf. United States v. Wilson, 2 M.J. 259 (A.F. C.M.R. 9 August 1976). The findings of guilty and the sentence are AFFIRMED. LeTARTE, Chief Judge, and FORAY, Judge, concur. . In Courtney (and Jackson), the Court held that the maximum penalty for drug offenses charged as violations of Article 134, UCMJ, must be limited to that imposable for violating Article 92. . Graves pleaded guilty to six specifications alleged as violations of Article 134 and for which the maximum penalty included 60 years confinement at hard labor. The same offenses charged as Article 92 violations would have provided a maximum confinement of 12 years confinement. Hence, on the basis of its rationale in Courtney, supra, and United States v. Harden, 1 M.J. 258 (1976), the Court apparently found the accused’s pleas improvident. . The pertinent issue granted in the Mosely and" }, { "docid": "12140096", "title": "", "text": "DECISION EARLY, Senior Judge: Tried by general court-martial, military judge alone, the accused was convicted, pur suant to his pleas, of transferring, possessing and using heroin, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The adjudged sentence extended to a bad conduct discharge, confinement at hard labor.for 24 months, forfeiture of all pay and allowances and reduction to airman basic. The convening authority reduced the period of confinement to 12 months and otherwise approved the sentence. Appellate defense counsel assign two errors. In the first they assert: THE ACCUSED’S PLEAS OF GUILTY WERE IMPROVIDENT DUE TO THE ERRONEOUS ADVICE AS TO THE MAXIMUM PUNISHMENT. During the inquiry into the providency of the accused’s plea conducted in accord with the mandate of United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969), all the parties at trial agreed that the maximum punishment included 40 years confinement at hard labor. Subsequent to trial, the Court of Military Appeals in United States v. Courtney, 24 U.S.C.M.A. 280, 51 C.M.R. 796, 1 M.J. 438 (1976), held that in drug offenses where there is a regulation prohibiting the same conduct which could have been charged under Article 92, the maximum sentence imposable is limited to that under Article 92 rather than that under Article 134. Later, in United States v. Graves [order] (6 Aug. 1976), where the accused pleaded guilty to six drug offenses charged under Article 134 and was advised that the maximum sentence to confinement was 60 years, rather than 12 years had the offense been charged under Article 92, the Court remanded the record for further consideration in light of Courtney, supra, and United States v. Harden, 24 U.S.C. M.A. 76, 51 C.M.R. 249, 1 M.J. 258 (1976). In Harden, the Court held the accused’s guilty plea improvident where the trial participants and the convening authority erroneously considered the maximum penalty to be 20 years confinement at hard labor whereas, because of multiplicity, it should have been considered 10 years. On the basis of these decisions appellate defense counsel ask us to set aside the" }, { "docid": "12131056", "title": "", "text": "Boyd, 18 U.S.C.M.A. 581, 40 C.M.R. 293 (1969); United States v. Thomas, 6 M.J. 573 (A.C.M.R.1978); United States v. Zenor, 1 M.J. 918 (N.C.M.R.1976), affirmed, 3 M.J. 186 (C.M.A.1977); United States v. Couisnard, 47 C.M.R. 765 (A.F.C.M.R.1973). The significance of the foregoing recitation to the issue before us is that the status of cocaine as a habit forming narcotic drug is a question of law, not fact. United States v. Porter, 544 F.2d 936 (8th Cir. 1976). Thus, for purposes of the providency of the accused’s plea, it is sufficient that he admitted, without reservation, the wrongful transfer of cocaine in the manner alleged. His failure to acknowledge that cocaine was a habit forming narcotic drug amounts to no more than a claim of ignorance of law; a claim that constitutes no excuse for the criminal act charged. See United States v. Greenwood, 6 U.S.C.M.A. 209, 19 C.M.R. 335, 340 (1955); Manual for Courts-Martial, supra, paragraph 154a (5). We, therefore, agree with appellate government counsel that the excepted language was not essential to the specification and, in fact, was inherently included in the word “cocaine” in the context of the specification. Accordingly, the accused’s guilty plea to the cocaine offense was provident and properly accepted by the military judge. Moreover, the maximum confinement for the offense was correctly calculated to be ten years. United States v. Thomas, supra. On the authority of United States v. Guilbault, 6 M.J. 20 (C.M.A.1978), we concur with appellate defense counsel that the maximum period of confinement for the Specification of Charge II, alleging a wrongful transfer of amphetamines, should have been one year rather than two years as determined by the military judge at trial. In that regard, such offenses are punishable in part by confinement for one year under § 33-702(a)(1) of the District of Columbia Code. This error, combined with another noted by the staff judge advocate in his review, resulted in a trial determination that the maximum period of confinement was 37 years, rather than the correct amount, 34 years. Notwithstanding such errors, on the basis of the relatively slight difference" }, { "docid": "12142796", "title": "", "text": "the fact that the accused was aware of and expressly considered the potential difference in maximum punishment. The Court reached the same result in the recent case of United States v. Frangoules, 24 U.S.C.M.A. 317, 52 C.M.R. 28, 1 M.J. 467 (1976), where the military judge determined the maximum confinement was six years versus the defense counsel’s position, subsequently vindicated, that the maximum was only two years. We perceive parallel and equally persuasive circumstances in the case at hand. Though, unlike Kleinhans, and Frangoules, the defense counsel did not indicate an awareness the offenses might not be separately punishable, his motion that four of the six offenses be dismissed for lack of service connection is indicative that the accused in pleading guilty took into account a significant potential difference in punishment. Specifically, if jurisdiction over the off-base offenses was subsequently found lacking, the maximum confinement penalty would be reduced from 45 years to only 15. We accordingly conclude the accused’s pleas of guilty were provident. However, since the military judge imposed punishment on the basis of a significant miscalculation of legal limits of confinement, sentence reassessment is required. United States v. Frangoules supra. In consequence of United States v. Courtney, and United States v. Graves supra, we must finally decide (1) whether the accused was denied due process and equal protection of the law by being prosecuted for drug offenses under Article 134, Code, supra, rather than Article 92; and (2) whether, on the basis thereof, and consequent maximum punishment considerations, the accused’s plea of guilty was improvident. On the authority of United States v. De La Fuente, 2 M.J. 668 (A.F.C.M.R. 16 September 1976) we find no issue of plea providency arising from the manner of charging. In DeLaFuente, we held, citing Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), “that the decisions in United States v. Graves, supra, and United States v. Courtney, supra, have only prospective application with respect to the providence of guilty pleas entered in the belief that penalties provided for Article 134 violations were appropriate even though the" }, { "docid": "12099103", "title": "", "text": "of an application such as that urged by the accused, convince us that the President did not intend in such cases to disregard the punishment provided by Congress for the offense in favor of ascertaining the punishment “by analogy” to that of an order or regulation by a military authority on the same subject. Thus, under the Walter approach interpreting paragraph 127c of the Manual, when conduct is prohibited both by a general order or regulation under Article 92 and by Article 134, but the offense is not specifically listed in the Table of Maximum Punishments, the correct maximum sentence to confinement is found by application of the punishment to confinement imposable under the United States Code or the District of Columbia Code, whichever is less. In this instance, appellant’s conduct violates both 21 U.S.C. § 841(a)(1), punishable in part by confinement for 5 years under 21 U.S.C. § 841(b)(1)(B); and District of Columbia Code, §§ 33-702(a)(1), (4), punishable in part by confinement for 1 year under 33-708(a). So, the possession and the sale of LSD by the appellant was subject to an aggregate maximum sentence of confinement of 1 year, as was his conspiracy to sell LSD. See Table of Maximum Punishments for violation of Article 81, conspiracy. In total, then, the maximum sentence to confinement facing the appellant at trial was only 2 years and 6 months. As the appellant’s approved sentence to confinement is 3 years and 6 months, prejudice is apparent. One further matter warrants our attention. Appellant correctly points out that the staff judge advocate’s post-trial review was served on substitute defense counsel, instead of his trial defense counsel who stood available to continue the representation of his client, the appellant. See United States v. Palenius, 2 M.J. 86 (C.M.A. 1977). This was error, and remedial action is necessary. United States v. Iverson, 5 M.J. 440 (C.M.A.1978). The decision of the United States Army Court of Military Review is reversed and the action of the convening authority is set aside. The record is returned to the Judge Advocate General of the Army for remand to" }, { "docid": "12099104", "title": "", "text": "LSD by the appellant was subject to an aggregate maximum sentence of confinement of 1 year, as was his conspiracy to sell LSD. See Table of Maximum Punishments for violation of Article 81, conspiracy. In total, then, the maximum sentence to confinement facing the appellant at trial was only 2 years and 6 months. As the appellant’s approved sentence to confinement is 3 years and 6 months, prejudice is apparent. One further matter warrants our attention. Appellant correctly points out that the staff judge advocate’s post-trial review was served on substitute defense counsel, instead of his trial defense counsel who stood available to continue the representation of his client, the appellant. See United States v. Palenius, 2 M.J. 86 (C.M.A. 1977). This was error, and remedial action is necessary. United States v. Iverson, 5 M.J. 440 (C.M.A.1978). The decision of the United States Army Court of Military Review is reversed and the action of the convening authority is set aside. The record is returned to the Judge Advocate General of the Army for remand to an appropriate convening authority for a new review and action, in which the sentence will be reassessed in light of the error. The review will be served upon counsel for the accused pursuant to United States v. Goode, 1 M.J. 3 (C.M.A.1975), and United States v..Iverson, supra. . As this trial preceded United States v. Courtney, 1 M.J. 438 (C.M.A.1976), which has only prospective application, United States v. Jackson, 3 M.J. 101 (C.M.A.1977), the approach used in United States v. Walter, 20 U.S.C.M.A. 367, 43 C.M.R. 207 (1971), controls the disposition of this case. . United States v. Walter, supra at 371, 43 C.M.R. at 211 (emphasis added). . Id. at 371-72, 43 C.M.R. at 211-12. . See n.1, supra. . The other issue granted for review is deemed to lack merit. United States v. Varacalle, 4 M.J. 181 (C.M.A.1978). FLETCHER, Chief Judge (concurring): I concur. This is an instance in which a charge brought under Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892, subjects a defendant to a more serious penalty" }, { "docid": "21568971", "title": "", "text": "States 1969 (Revised edition). In United States v. Brown, 1 M.J. 465, 466 (C.M.A.1976), Judge Cook said: Military law requires an extensive preliminary examination of an accused before acceptance of a proffered plea of guilty. Among other things, the examination must demonstrate the accused’s understanding of the punishment to which he may be subject in the event of conviction on his plea. United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). A substantial misunderstanding on the part of the accused as to the punishment which may be adjudged is ground to vacate the plea. United States v. Harden, 1 M.J. 258 (C.M.A.1976). However, military case law further indicates that substantial misadvice will not render a guilty plea improvident where it appears on the record that the accused expressly took into account possible alternatives for sentence. See United States v. Hedlund, 7 M.J. 271 (C.M.A.1979); United States v. Harden, supra at 260. The pylons supporting the providency of the plea under these circumstances are the accused’s awareness of the possibility of a different legal maximum sentence and his intention to plead guilty regardless of the ultimate decision as to the legal limits of his punishment. See United States v. Kleinhans, 14 U.S.C.M.A. 496, 497, 34 C.M.R. 276, 277 (1964). As stated in United States v. Frangoules, 1 M.J. 467, 469 (C.M.A.1976): It reasonably appears here that the accused had considered, and taken account of, the probability that his counsel’s opinion as to the legal period of confinement for the offenses to which he proposed to plead guilty and as to which he had entered into an agreement with the convening authority, might not accord with the trial judge’s determination. The reasonable inference is that the accused believed, and so informed the trial judge, that his entry of the plea of guilty pursuant to his pretrial agreement, regardless of whether he was subject to confinement for 8 years or 2 years, was appropriate because he was satisfied in his “own mind that . [he was] guilty” and because he believed that the plea was in his “own best interest.” Thus," }, { "docid": "12047996", "title": "", "text": "argues that with ex-punction no offense would be alleged and the findings of guilt should be set aside. We disagree and adhere to the statutory classification of cocaine as a habit-forming drug. United States v. Gonzalez-Rodriguez, 7 M.J. 633 (A.C.M.R.1979), pet. denied, 7 M.J. 263 (C.M.A.1979); United States v. King, 6 M.J. 927 (A.F.C.M.R.1979), pet. denied, 7 M.J. 214 (C.M.A.1979). The Court notes that the convening authority’s action, dated 16 April 1981, is not in correct form, although the intent is clear. Our action is designed to avoid ambiguity in the final order: The findings of guilty of Specifications 2 and 5 of Charge IV, not having been approved by the convening authority, are set aside and those charges are dismissed. The remaining findings of guilty are affirmed. The approved sentence is affirmed. Judge COHEN concurs. . It is unclear from the facts developed during the trial how far the appellant got outside the hangar. Statements in the Article 32, Uniform Code of Military Justice, 10 U.S.C. § 832, Report of Investigation indicate he ran 15 to 20 meters. . 10 U.S.C. § 895 (1976). . Apprehension is the taking of a person into custody. Article 7, Uniform Code of Military Justice, 10 U.S.C. § 807 (1976). . Persons authorized to apprehend but not to order confinement must notify the commander or officer with confinement authority for further disposition, paragraph 19d, Manual; United States v. Ellsey, supra. . Paragraph 174d, Manual. . Article 9, Uniform Code of Military Justice, 10 U.S.C. § 809 (1976). . Paragraph 174c, Manual. . Paragraph 174d, Manual. . See United States v. Royal, 2 M.J. 591 (N.C.M.R.1976) (accused remained in the “presence” of his escort who stationed himself outside the door to a head being visited by the escapee); United States v. Ream, 1 M.J. 759 (A.F.C.M.R.1975) (accused remained in custody while guard aurally monitored his presence inside a house from outside); United States v. King, 45 C.M.R. 783 (N.C.M.R.1971) (no escape from custody when First Sergeant told accused to go upstairs in a barracks). . This issue is currently pending before the Court of" }, { "docid": "2482558", "title": "", "text": "CRANDELL, Judge: This appellant was convicted pursuant to his pleas of four specifications alleging drug-related violations of Article 92 of the Uniform Code of Military Justice, 10 U.S.C. § 892. The actual offenses consisted of possession of LSD on two occasions, sale of LSD and possession of marijuana. He was sentenced by the general court-martial that tried his case to a dishonorable discharge, confinement at hard labor for 2 years, total forfeitures and reduction to pay grade E-l. The convening authority reduced the con finement to 15 months and otherwise approved the sentence and findings. The appeal was originally filed without specific assignment of error. We affirmed the findings and sentence. United States v. Nevills, No. 75 1456 (N.C.M.R. 18 Aug. 1975). The Court of Military Appeals vacated our decision and remanded the record of trial for further review in light of that Court’s resolution of certain cases then pending before it. United States v. Nevills, No. 31,250 (U.S.C.M.A. 9 Feb. 1976). We will now reconsider the record and supplemental assignments of error in light' of existing case law. Appellant notes that the LSD possession, alleged in specification 7, and the marijuana possession, alleged in specification 8, occurred at the same place and time. These specifications should have been considered multiplicious for sentencing purposes. United States v. Hughes, 1 M.J. 346 (1976). We will take corrective action. Appellant also maintains that his case presents a fact situation that is the converse of United States v. Courtney, 1 M.J. 438 (1976). He argues that his possession of marijuana and LSD could have been charged as violations of Article 134, crimes or offenses not capital, prohibited by 21 U.S.C. § 844(a). He asserts that the punishment prescribed by that statute for a • “first offender”, which includes imprisonment for not more than one year, should have operated to limit the permissible court-martial sentence to no more than one. year of confinement and the attendant penalties for each offense. See Manual for Courts-Martial, United States, 1969 (Revised edition), par. 127(c)(1). He would have us find that his right to equal protection of the" }, { "docid": "12131057", "title": "", "text": "and, in fact, was inherently included in the word “cocaine” in the context of the specification. Accordingly, the accused’s guilty plea to the cocaine offense was provident and properly accepted by the military judge. Moreover, the maximum confinement for the offense was correctly calculated to be ten years. United States v. Thomas, supra. On the authority of United States v. Guilbault, 6 M.J. 20 (C.M.A.1978), we concur with appellate defense counsel that the maximum period of confinement for the Specification of Charge II, alleging a wrongful transfer of amphetamines, should have been one year rather than two years as determined by the military judge at trial. In that regard, such offenses are punishable in part by confinement for one year under § 33-702(a)(1) of the District of Columbia Code. This error, combined with another noted by the staff judge advocate in his review, resulted in a trial determination that the maximum period of confinement was 37 years, rather than the correct amount, 34 years. Notwithstanding such errors, on the basis of the relatively slight difference in total years confinement to which the accused was subject, we are convinced there was no “substantial misunderstanding” on the accused’s part so as to render his guilty plea improvident. United States v. Harden, 1 M.J. 258 (C.M.A.1976); United States v. Frangoules, 1 M.J. 467 (C.M.A.1976); see United States v. Martin, 4 M.J. 852 (A.C.M. R.1978); United States v. Nevills, 1 M.J. 1077 (N.C.M.R.1977). On that same basis, and in further light of the fact that the punishment imposed on the accused by the military judge included only one year of confinement, we are also convinced the accused was not prejudiced as to sentence. See United States v. Saulter, 1 M.J. 1066 (N.C.M.R.1976). For the reasons stated, the approved findings of guilty and the sentence are correct in law and fact and, on the basis of the entire record, are AFFIRMED. EARLY, Chief Judge, and HERMAN and ARROWOOD, Judges, concur. . All in violation of Article 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934. . In violation of Article 92, Code," }, { "docid": "1086544", "title": "", "text": "Opinion of the Court PER CURIAM: Following the appellant’s conviction of possession and sale of lysergic acid diethylamide (LSD) , his sentence was approved by the convening authority only to include a dishonorable discharge, one year’s confine ment at hard labor, total forfeitures, and a reduction to the lowest pay grade. The findings and sentence were affirmed by the United States Army Court of Military Review, limiting the forfeiture to twelve months. We, ultimately, granted two issues for consideration in this case. The supplemental issue asks whether appellant’s plea of guilty was improvident because of a substantial misapprehension of the maximum imposable sentence to confinement for two specifications of sale and one of possession of LSD charged under Article 92, Uniform Code of Military Justice. At first blush, this charge so laid appears to be a substantial misapprehension of the maximum punishment imposable under United States v. Harden, 1 M.J. 258 (C.M.A.1976), and a denial of equal protection under the Fifth Amendment of the United States Constitution. United States v. Courtney, 1 M.J. 438, 441 n.10 (C.M.A. 1976). However, this Court has determined that the more equitable course of action is prospective application of the Courtney decision to cases tried or retried after its date of decision. United States v. Jackson, 3 M.J. 101 (C.M.A.1977). As the instant court-martial is antecedent to Courtney, we find the supplemental issue without merit. We turn, then, to the issue of prejudice to the appellant in that the trial defense counsel argued for a suspended discharge. At the time of this argument, the law was that a sentence award of suspension under Articles 71 and 74, UCMJ, 10 U.S.C. §§ 871 and 874, was beyond the military judge’s power. The appellant argues that this being the case, a request for a suspended discharge was tantamount to a concession of a sentence to punitive discharge. We agree. As “[d]efense counsel cannot ask the court-martial to impose a punitive discharge when the express or implied desire of the accused is to the contrary,” United States v. Weatherford, 19 U.S.C.M.A. 424, 425, 42 C.M.R. 26, 27 (1970)," } ]

[ { "docid": "22803336", "title": "", "text": "rule clearly contemplates hearing and determination of jurisdictional issues in advance of trial. 2A Moore, Federal Practice ¶ 12.16, at 2352-54 (2d ed. 1968). “As there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial” court.” Gibbs v. Buck, 307 U.S. 66, 71-72, 59 S.Ct. 725, 729, 83 L.Ed. 1111 (1939). When considering a challenge to its jurisdiction, a court may receive and weigh affidavits. 5 Wright and Miller, Federal Practice and Procedure § 1351, at 565 (1969). Based upon evidence obtained, the court properly decides jurisdictional disputes before trial. Schramm v. Oakes, 352 F.2d 143, 149 (10th Cir. 1965); Williams v. Minnesota Mining & Manufacturing Co., 14 F.R.D. 1, 5 (S.D.Cal.1953). The burden of proof rests upon the party asserting existence of jurisdiction, id. at 5; KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 201, 81 L.Ed. 183 (1936). However, this burden is met by a prima facie showing that jurisdiction is conferred by the long arm statute. United States v. Montreal Trust Co., 358 F.2d 239 (2nd Cir. 1966). The burden of establishing jurisdiction is on the plaintiff. Weller v. Cromwell Oil Co., 504 F.2d 927 (6th Cir. 1974). However, if the district court determines to decide the issue solely on the basis of written materials, the plaintiff should be required only to make a prima facie case of jurisdiction, that is, he need only “demonstrate facts which support a finding of jurisdiction in order to avoid a motion to dismiss.” Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir. 1977) (citation omitted). Accord: Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973). However, if the district court concludes that the written submissions have raised issues of credibility or disputed issues of. fact which require resolution, it may conduct a preliminary evidentiary hearing. Where this occurs the plaintiff must show by a preponderance of the evidence that jurisdiction exists. Data Disc, Inc. v. Systems Technology Associates, Inc., supra, 557 F.2d at 1285. In the" } ]

[ { "docid": "676955", "title": "", "text": "OPINION SNYDER, District Judge. On December 9, 1976,. Plaintiffs, all Blacks and one a female, filed suit against their employer, Allegheny Airlines, and the International Association of Machinists and Aerospace Workers Local 1976 (hereinafter the Union), alleging race and sex discrimi nation in hiring, job classification, compensation and employment conditions, all in violation of 42 U.S.C. § 2000e. The suit was initiated within 90 days of Clarence Trent’s receipt of a “right to sue” letter from the EEOC. This “right to sue” letter indicates that the EEOC determined that it lacked jurisdiction because the charges were untimely. Both Defendants have moved to dismiss for lack of subject matter jurisdiction. Allegheny contends that Mr. Trent did not file his charge with the EEOC within 300 days of the date of discrimination, and thus Mr. Trent and all the other Plaintiffs whose suits depend on the Trent charges to satisfy the statutory requirements of § 2000e-5(e) are jurisdictionally barred. The Union contends that it was not named as a respondent in Mr. Trent’s charges with the EEOC, and therefore the Court lacks jurisdiction over the suit against it. I. TIMELY FILING OF CHARGES WITH THE EEOC Allegheny correctly asserts that the timely filing of charges with the EEOC is a jurisdictional prerequisite to employment discrimination suits in federal court. 42 U.S.C. § 2000e-5(e); Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To determine the timeliness of filing, however, it would have this Court defer to the EEOC’s determination of timeliness and dismiss the Complaint; or it argues that at least the EEOC decision places an affirmative obligation on the Plaintiffs to allege in the Complaint specific facts to negate the EEOC determination, and that here Plaintiffs have failed to even allege a timely filing with the Commission. While the EEOC’s expertise in Title VII cases may entitle its interpretations of the Act to deference by the courts, its findings do not determine the scope of federal court jurisdiction. The court" }, { "docid": "1294953", "title": "", "text": "level without posing any danger of piecemeal litigation. Although the entry of the final order in such a situation is in one sense invited, the reality of the matter is that the plaintiff has suffered an adverse judgment. In sum, we find that the February order was final, adverse, and so appealable. III. The parties agree that there are no disputes of material fact. The court of appeals exercises plenary review over an appeal from the granting of a summary judgment motion, “applying] the same test the district court should have utilized initially. Inferences to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion.” Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). A. Federal courts lack jurisdiction to hear Title VII claims unless a claim was previously filed with the EEOC. Alexander v. Gardner Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973). Under the statutory scheme, no charge may be filed with the EEOC in a state, such as Pennsylvania, which provides an administrative remedy for discrimination until the charge is first filed with the state agency and either (1) sixty days elapses or (2) the agency terminates its proceedings. § 706(c) of Title VII, 78 Stat. 260, as amended in 1972, 86 Stat. 104, 42 U.S.C. § 2000e-5(c); see also Mohasco Corp. v. Silver, 447 U.S. 807, 817, 100 S.Ct. 2486, 2492-93, 65 L.Ed.2d 532 (1980). However, like the vast majority of states and local anti-discrimination agencies, the PHRC entered into a worksharing agreement with the EEOC. Under the works-haring agreement, a charge that would otherwise have to come before the PHRC, can be processed immediately by the EEOC if it is first filed with the EEOC. See Appendix 29a (“Workshare Agreement”) at 33a, ¶ 111(b) (“the PHRC waives" }, { "docid": "1255427", "title": "", "text": "of the Title VII Claim Exxon has moved to dismiss the complaint on the ground, among others, that plaintiff has not alleged he received a right-to-sue letter from EEOC, and therefore that he is not authorized to bring a Title VII action. 42 U.S.C. § 2000e-5(f)(1). A right-to-sue letter is a jurisdictional prerequisite to a judicial determination of the merits of a Title VII action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798-99, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Gibson v. Kroger Co., 506 F.2d 647, 650 (7th Cir. 1974), cert. denied, 421 U.S. 914, 95 S.Ct. 1571, 43 L.Ed.2d 779 (1975). Whether such letter is a prerequisite to an action seeking only preliminary relief pending the outcome of employment discrimination proceedings before EEOC is a matter on which the courts are not in agreement. In Hochstadt v. Worcester Foundation for Experimental Biology, Inc., Civil No. 75-3617-M (D.Mass., Jan. 5, 1976), appeal docketed, No. 76-1019 (1st Cir.), this court found a legislative intent to permit aggrieved persons to bring an action for preliminary relief to preserve the status quo in certain circumstances.« Hochstadt involved an existing employment relation and a charge of retaliatory discharge. The court finds no reason to extend the holding of Hochstadt to cover the facts in this case. Under Title VII the preferred remedy is the settlement of grievances by conciliation, see United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976), and the statute requires that EEOC have an opportunity to reach a settlement “through conference, conciliation, and persuasion before the aggrieved party [is] permitted to file a lawsuit”. Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974). The right-to-sue letter evidences exhaustion of the favored administrative remedies and is therefore a jurisdictional prerequisite to a civil action. Where, unlike plaintiff’s posi tion in Hochstadt, the employment of plaintiff here ended more than a year prior to the filing of the complaint, the court views plaintiff’s position more like that of" }, { "docid": "11832254", "title": "", "text": "to dismiss based on the defendant’s contention that the plaintiff has filed suit after expiration of the 90-day period. NYWA moved to dismiss on this basis under Rule 12(bXl), and it supported its theory that Rule 12(b)(1) applied with the argument that “[f]ailure to bring an action under the section within 90 days deprives a federal court of subject, matter jurisdiction.” Motion to Dismiss for Lack of Jurisdiction Over the Subject Matter at 2, reproduced in Appendix A to appellant’s brief at A-13, citing Hinton v. CPC International, Inc., 520 F.2d 1312, 1315 (8th Cir. 1975). The sentence quoted from Hinton, however, is not apposite to this case. It refers to a long-standing dispute among the circuits as to what the Supreme Court meant by referring to the time limits for bringing suit under Title VII as “jurisdictional,” see Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1975); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973), The Supreme Court has now sub stantially resolved this dispute in Zipes v. Trans World Airlines, Inc.,-U.S.-, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), which holds that “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in a federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Id. at -, 102 S.Ct. at 1132. Statutes of limitations generally create affirmative defenses. Although affirmative defenses may be raised on a motion to dismiss, the proper method for raising a defense of limitation is a motion under Rule 12(b)(6), not a motion under Rule 12(b)(1). • See 5 C. Wright & A. Miller, Federal Practice and Procedure § 1277 at 331-332 (1969 ed.). The difference between them is that under Rule 12(b)(6) the court may not consider matters outside the pleadings and accompanying legal memoranda without converting the motion into one for summary judgment and affording all parties “reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”" }, { "docid": "196003", "title": "", "text": "were terminated more than 90 days before filing of EEOC charges and who did not resume employment in ground duty po sitions, we must now consider whether the employer waived this timeliness defense by failing to plead it affirmatively in its answer. There is no dispute that the employer failed to raise this issue in the pleadings. The critical issue is whether the 90-day period is in the nature of a statute of limitations in which case the doctrines of waiver and estoppel would apply, or is a jurisdictional prerequisite to suit in which case the employer could raise it at any time. We hold the 90-day filing period to be jurisdictional and therefore the employer’s failure to plead it did not constitute a waiver. The language of the statute is clear: A charge under subsection (a) of this section shall be filed within ninety days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(d) (1970 ed.) (emphasis added). Furthermore, having examined the legislative history of this provision, of which there is very little, we find nothing of significance to indicate that the 90-day filing requirement is not jurisdictional. But cf. Laffey v. Northwest Airlines, Inc., 185 U.S.App.D.C. 322, 368, 567 F.2d 429, 475 n.345 (1976). In Terry v. Bridgeport Brass Co., supra, the plaintiffs’ Title VII suit was dismissed in the district court because they failed to file charges with the EEOC within 90 days of the alleged unfair employment practice. On appeal, this court affirmed the dismissal stating that “[t]he district court therefore correctly concluded that the charges were untimely filed and that it consequently lacked jurisdiction.” 519 F.2d at 808. Moreover, the Supreme Court has, on several occasions, referred to the 90-day filing requirement as a jurisdictional prerequisite. See United Air Lines, Inc. v. Evans, supra 431 U.S. at 555, n.4, 97 S.Ct. 1885; Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Therefore, the employer’s failure to raise the filing requirement earlier" }, { "docid": "22143364", "title": "", "text": "written submissions by the parties. In Welsh v. Gibbs, 631 F.2d 436 (6th Cir.1980), cert. denied, 450 U.S. 981, 101 S.Ct. 1517, 67 L.Ed.2d 816 (1981), this Court addressed the standard of proof required for pretrial determinations of subject matter jurisdiction as provided in Rule 12(d) of the Federal Rules of Civil Procedure. Judge Lively’s discussion is fully applicable here: The burden of establishing jurisdiction is on the plaintiff. However, if the district court determines to decide the issue solely on the basis of written materials, the plaintiff should be required only to make a prima facie case of jurisdiction, that is, he need only “demonstrate facts which support a finding of jurisdiction in order to avoid a motion to dismiss.” The district court apparently conclude[s] that the written materials presents] no disputed questions of fact on jurisdiction and no issues of credibility, . .., the burden of the plaintiff is relatively slight and the district court must consider the pleadings and affidavits in the light most favorable to the plaintiff. Id. at 438-39 (citations omitted); accord, First National Bank of Louisville v. J.W. Brewer Tire Co., 680 F.2d 1123, 1125 (6th Cir.1982). The plaintiff must ultimately prove jurisdiction by a preponderance of the evidence. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178,189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). In the present case, the jurisdictional question was decided upon briefs supported by affidavits and certain other discovery materials. Since such questions are determined in the same manner as summary judgment issues, Weller v. Cromwell Oil Co., 504 F.2d 927, 929-30 (6th Cir. 1974), the court is required to review the record for facts supporting the initial showing of jurisdiction in order to satisfy itself that the evidence in the record raises no genuine issue as to the existence of jurisdiction. See Smith v. Hudson, 600 F.2d 60, 63-65 (6th Cir.), cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979). III. DISCUSSION The essential question in this case is whether the plaintiffs’ are barred from bringing their claim in federal court by the Title" }, { "docid": "23557575", "title": "", "text": "711, 720 (7th Cir. 1969). Ms. Wallace, however, had also written the EEOC in 1966 to charge defendants with discrimination as to hourly workers in 1966. Plaintiffs argue that this earlier notification should be used to determine the time period for review. Obviously, if plaintiffs’ argument were adopted, the time frame would extend back from 1969 to sometime in 1965-66. As with Judge No-land, we cannot agree with plaintiffs. Congress has provided explicit jurisdictional requirements for Title VII in 42 U.S.C. § 2000e-5 (1976). As the Supreme Court has noted, plaintiffs here had to meet a two-part requirement in order to maintain suit against GM. First, plaintiffs must have filed a charge with EEOC. Second, they must have received a right to sue letter from the EEOC and acted upon it. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973); Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th Cir. 1968). As stated, there is no .question as to the 1970 charge and subsequent right to sue letter conferring jurisdiction as of October 17, 1969. The difficulty with her 1966 charge is that Ms. Wallace only satisfied half the requirements. Plaintiff Wallace’s 1966 charge can be considered to constitute a proper complaint filed with the EEOC. See Love v. Pulman, 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972). However, she never sought nor received a right to sue letter from EEOC in relation to these charges. Plaintiff Wallace’s failure to pursue the 1966 charges further with EEOC is similar to the neglect we held jurisdictionally fatal in Gibson v. Kroger Co., 506 F.2d 647 (7th Cir. 1974). In Gibson, we agreed with the D.C. Circuit’s decision in Stebbins v. Continental Insurance Companies, 442 F.2d 843 (D.C. Cir. 1971), that Title VII claimants are under a duty to seek their right to sue letter if they wish to pursue their claim in the courts. 506 F.2d at 652. While we recognize that in special circumstances" }, { "docid": "23361540", "title": "", "text": "discretionary power to release partial dispositions of multi-party actions for immediate appellate review. DISMISSED. . At oral argument Bobo conceded that Hucke-by’s suit cannot be regarded as a class action. . 42 U.S.C.A. § 2000e-5(f)(1) (1974). . Alexander v. Gardner-Denver Corp., 415 U.S. 36, 48, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147, 158 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 799, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668, 676 (1973); Genovese v. Shell Oil Co., 488 F.2d 84 (5th Cir. 1973). Bobo does not contend that the document she received was misleading or otherwise improper. See generally Zambuto v. American Tel. & Tel. Co., 544 F.2d 1333 (5th Cir. 1977). . Bobo urges that we remand this case because the district court neglected to issue findings of fact and conclusions of law to explain its order dismissing her complaint. Since the district court’s order is a dismissal for want of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the court was not required to “find the facts specially and state separately its conclusions of law thereon.” Fed.R.Civ.P. 52(a). “Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 . .” Id.; Robins Prod. Co. v. Tomecek, 465 F.2d 1193, 1196 (6th Cir. 1972). Application of this principle is particularly appropriate in this instance because the district court was not required to resolve any factual issues in ruling on the defendant’s motion. See generally King v. Wall & Beaver St. Corp., 79 U.S.App.D.C. 234, 145 F.2d 377, 381 (1944); 5A J. Moore & J. Lucas, Moore’s Federal Practice ¶ 52.08, pp. 2738-39 (2d ed. 1975). We note, however, that even when the rules do not require that findings of fact and conclusions of law be issued, a concise statement by the district court of the grounds for its decision is desirable. See Melancon v. Insurance Co. of North America, 482 F.2d 1057, 1059 n.4 (5th Cir. 1973); Steed v. Central Ga. Ry. Co., 477 F.2d 1303, 1305 (5th Cir. 1973); United States ex rel. Industrial Inv." }, { "docid": "23557574", "title": "", "text": "Title VII claims before the district court, individual plaintiffs filed charges with the EEOC between 1970 and 1973. Thereafter, the EEOC issued right to sue letters based on those charges and plaintiffs brought suit in 1973. As to these claims, there are no jurisdictional problems. The time period in question under Title VII in this court relates solely to the charges of discrimination in promotion and transfer of hourly workers. The individual employee and class representative for these claims is Beulah Wallace. She filed a charge with the EEOC on August 13, 1970 alleging racial and sexual discrimination in promoting and transferring hourly employees. Under that charge and subsequent right to sue letter, the appropriate time frame begins October 17, 1969. That period for the individual representative of the class also controls the time period for the class. Romasanta v. United Air Lines, Inc., 537 F.2d 915 (7th Cir. 1975), aff’d sub nom. United Air Lines v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 52 L.Ed.2d 423 (1977); Bowe v. Colgate Palmolive Co., 416 F.2d 711, 720 (7th Cir. 1969). Ms. Wallace, however, had also written the EEOC in 1966 to charge defendants with discrimination as to hourly workers in 1966. Plaintiffs argue that this earlier notification should be used to determine the time period for review. Obviously, if plaintiffs’ argument were adopted, the time frame would extend back from 1969 to sometime in 1965-66. As with Judge No-land, we cannot agree with plaintiffs. Congress has provided explicit jurisdictional requirements for Title VII in 42 U.S.C. § 2000e-5 (1976). As the Supreme Court has noted, plaintiffs here had to meet a two-part requirement in order to maintain suit against GM. First, plaintiffs must have filed a charge with EEOC. Second, they must have received a right to sue letter from the EEOC and acted upon it. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973); Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th Cir. 1968)." }, { "docid": "18842162", "title": "", "text": "to pursue a judicial remedy in Superior Court for the State of Rhode Island. Thereafter, within the ninety day statutory period delimited under 42 U.S.C. § 2000e-5(f)(1), the plaintiff commenced the instant action. He did not, however, request or obtain a right-to-sue letter from the EEOC. The defendant asserts that this Court lacks jurisdiction over the subject matter, contending that the EEOC right-to-sue letter is a jurisdictional prerequisite under the holdings in Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974) and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973). The plaintiff confronts this premise by confession and avoidance: he argues that the right-to-sue letter issued by RIHRC is a sufficient surrogate for an EEOC right-to-sue letter. Relying on the EEOC’s policy that it will adopt state agency actions as final unless review is requested, 29 C.F.R. § 1601.76, the plaintiff contends that the EEOC has, sub silentio, adopted the RIHRC letter as its own, thus obviating any need to procure a right-to-sue letter from the EEOC. The Court believes that the fusillades launched by the parties fall wide of the mark, and do not zero in upon the issues which are fairly raised by the pleadings. It thus falls to the Court independently to collocate the factual pieces in order to pass upon the pending motion. In McDonnell Douglas Corp. v. Green, and Alexander v. Gardner-Denver Corp., both supra, the Supreme Court did indeed refer to certain of the filing requirements and time limitations contained in 42 U.S.C. § 2000e-5 as “jurisdictional”. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. at 798, 93 S.Ct. at 1822. Any ambiguity arising from the use of that terminology was put to rest, however, in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). There, a labor union objected to settlement of a class action discrimination suit. The union protested that the district court lacked subject matter jurisdiction because members of a subclass had not filed charges with the" }, { "docid": "22143363", "title": "", "text": "determine whether an employment relationship existed between Syntax and its manufacturer’s representatives under the common law test. The court concluded that the manufacturer’s representatives were more akin to independent contractors, than to employees. Thus, upon considering the total number of part-time and full-time persons employed by Syntax, the court determined that the minimum jurisdictional requirement of fifteen employees had not been met; therefore, this claim was dismissed for lack of subject matter jurisdiction. The district court also dismissed plaintiffs’ Fourteenth Amendment claim since no state action was alleged. No assignment of error is premised upon this basis of dismissal; accordingly, this portion of the lower court’s judgment is AFFIRMED. We also affirm the lower court’s dismissal of Stackpole since it was not charged in the administrative action before the EEOC. Accord Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974); McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973). II. STANDARD OF REVIEW The lower court’s jurisdictional ruling was based upon written submissions by the parties. In Welsh v. Gibbs, 631 F.2d 436 (6th Cir.1980), cert. denied, 450 U.S. 981, 101 S.Ct. 1517, 67 L.Ed.2d 816 (1981), this Court addressed the standard of proof required for pretrial determinations of subject matter jurisdiction as provided in Rule 12(d) of the Federal Rules of Civil Procedure. Judge Lively’s discussion is fully applicable here: The burden of establishing jurisdiction is on the plaintiff. However, if the district court determines to decide the issue solely on the basis of written materials, the plaintiff should be required only to make a prima facie case of jurisdiction, that is, he need only “demonstrate facts which support a finding of jurisdiction in order to avoid a motion to dismiss.” The district court apparently conclude[s] that the written materials presents] no disputed questions of fact on jurisdiction and no issues of credibility, . .., the burden of the plaintiff is relatively slight and the district court must consider the pleadings and affidavits in the light most favorable to the plaintiff. Id. at 438-39 (citations" }, { "docid": "274821", "title": "", "text": "filed a new complaint in the district court based on the new right-to-sue notice granted on the first, timely charge. AA moved to dismiss the complaint. The district court granted the motion, ruling that Cria-les’s claims of discrimination under Title VII were barred by res judicata. Criales v. American Airlines, Inc., CV-95-1709, 1995 WL 669900 (E.D.N.Y. Nov. 6,1995) (“Críales II”). The other federal claims were dismissed on various grounds, and the state claims were dismissed for lack of jurisdiction, by reason of the absence of a valid federal claim to which they could be appended. This appeal followed. II. Discussion The primary question raised by this appeal is as follows: Where a plaintiff filed two administrative charges' alleging illegal discrimination under Title VII — one timely, the other untimely — and instituted suit upon the agency’s delivery of a right-to-sue notice on the untimely charge, which suit was then dismissed by reason of the untimeliness of that charge, does that dismissal operate as an adjudication on the merits, barring the plaintiff from proceeding upon the timely charge? The district court believed it did. We disagree. The prerequisites for a suit under Title VII include a timely filed administrative charge and timely institution of the suit after receipt of a right-to-sue notice. See 42 U.S.C. § 2000e-5(e)(l) (timely charge) & (f)(1) (right-to-sue notice); Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973). Críales complied with both requirements. The only reason for the dismissal was that he had previously filed a suit, based on an untimely administrative charge, which suit was dismissed because of the untimeliness of the charge. Although the district court viewed the problem as one of untimeliness, it is more appropriately seen as one of prematurity. Had Críales waited to file his suit until receipt of the right-to-sue notice on the timely charge, there would have been no defect. The superfluous untimely administrative charge would have been irrelevant to Criales’s right to proceed on his" }, { "docid": "18867878", "title": "", "text": "date. The EEOC concluded that there was “no reasonable cause” to believe plaintiff’s allegations of race discrimination and the PHRC concluded that there were not sufficient facts to support those allegations. After the EEOC issued him right to sue notices, plaintiff filed this lawsuit on September 14, 1977. II. CONCLUSIONS OF LAW This Court has jurisdiction over this case pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., which prohibits discrimination in employment on the basis of race. The plaintiff properly exhausted his administrative remedies prior to bringing suit on both his claims that: (i) he was not promoted to the electric furnace incentive clerk job because of race; (ii) he was discharged because of race. However, the Court is without jurisdiction to consider plaintiff’s claim that he was the victim of race discrimination when the temporary BOF job was assigned to Mr. Cabray. Plaintiff filed no EEOC charge on this matter. Bradford v. People’s Natural Gas Co., 60 F.R.D. 432, (W.D.Pa.1973). Although the decisions of the PHRC and EEOC and the labor arbitrators who heard plaintiff’s grievances have all found, almost uniformly, that plaintiff’s claims were unsupported by the evidence, we have considered the claims in de novo fashion as we are required by law to do, Alexander v. Gardner-Denver, 415 U.S. 36, 60, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). It should also be noted that our standards for reviewing evidence in a Title VII case are different than those used by administrative agencies, see Watson v. Magee Women’s Hospital, 472 F.Supp. 325 (W.D.Pa.1979). These standards were established by the United States Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas a Title VII case is divided into three phases. First the plaintiff must demonstrate a prima facie case of discrimination. Then the defendant is called upon to articulate a legitimate non-discriminatory reason for its action. Finally, the plaintiff is afforded an opportunity to show that the proffered reason is in fact a pretext designed to cover what is" }, { "docid": "22143362", "title": "", "text": "Corporation as a ‘sham’ entity in order to consolidate it with its parent corporations to satisfy the Title VII prerequisite of fifteen employees.” 498 F.Supp. at 862. The court reasoned that under Hassell v. Harmon Foods, Inc., supra, the formal corporate relations between Syntax and its parent were regular and unexceptional, and thus the separate corporate entities would be respected. Upon finding that the parent corporation had nothing more than a possible “awareness” of the identity, positions, and salaries of Syntax employees, the district court opined that there was no “centralized control of labor relations” as required under the four-part test articulated in Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir.1977). As to the manufacturer’s representatives, the district court adopted the general common law rule for purposes of determining whether an individual is an employee. Under this standard, the court examined the purported control over the means, manner and details of the work performed. The lower court found that evidence of commission payments for accomplished results was an insufficient basis upon which to determine whether an employment relationship existed between Syntax and its manufacturer’s representatives under the common law test. The court concluded that the manufacturer’s representatives were more akin to independent contractors, than to employees. Thus, upon considering the total number of part-time and full-time persons employed by Syntax, the court determined that the minimum jurisdictional requirement of fifteen employees had not been met; therefore, this claim was dismissed for lack of subject matter jurisdiction. The district court also dismissed plaintiffs’ Fourteenth Amendment claim since no state action was alleged. No assignment of error is premised upon this basis of dismissal; accordingly, this portion of the lower court’s judgment is AFFIRMED. We also affirm the lower court’s dismissal of Stackpole since it was not charged in the administrative action before the EEOC. Accord Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974); McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973). II. STANDARD OF REVIEW The lower court’s jurisdictional ruling was based upon" }, { "docid": "23571175", "title": "", "text": "Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought. 42 U.S.C. § 2000e-5(f)(3). Second, the genesis of the term “jurisdictional prerequisite” demonstrates that the term has crept into Title VII jurisprudence with no explication of its underlying logic and thus no real guidance in determining its applicability. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court was called upon to decide whether the absence of an EEOC finding of reasonable caused barred suit under Title VII. In deciding the question, the Court stated: Respondent satisfied the jurisdictional prerequisites to a federal action (i) by filing timely charges of employment discrimination with the Commission and (ii) by receiving and acting upon the Commission’s statutory notice of the right to sue, 42 U.S.C. §§ 2000e-5(a) and 2000e-5(e). The Act does not restrict a complainant’s right to sue to those charges as to which the Commission has made findings of reasonable cause, and we will not engraft on the statute a requirement which may inhibit the review of claims of employment discrimination in the federal courts. 411 U.S. 792, 798, 93 S.Ct. 1817, 1822 (1973). We have previously characterized the Court’s language on jurisdictional prerequisites, as dictum, Bonham v. Dresser Industries, Inc., 569 F.2d at 192, and we adhere to that view. We note, however, that subsequent Supreme Court cases have seized upon this language as a basis for their holdings. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976). We do not, however, rest our conclusion that the time limits are subject to tolling merely on disparaging the origins of the term “jurisdictional prerequisite.” Rather, we construe Electrical Workers v. Robbins & Myers, Inc. as leaving open the possibility of tolling in certain limited cases. While the Court rejected the argument that the time limits under Title VII should" }, { "docid": "196004", "title": "", "text": "little, we find nothing of significance to indicate that the 90-day filing requirement is not jurisdictional. But cf. Laffey v. Northwest Airlines, Inc., 185 U.S.App.D.C. 322, 368, 567 F.2d 429, 475 n.345 (1976). In Terry v. Bridgeport Brass Co., supra, the plaintiffs’ Title VII suit was dismissed in the district court because they failed to file charges with the EEOC within 90 days of the alleged unfair employment practice. On appeal, this court affirmed the dismissal stating that “[t]he district court therefore correctly concluded that the charges were untimely filed and that it consequently lacked jurisdiction.” 519 F.2d at 808. Moreover, the Supreme Court has, on several occasions, referred to the 90-day filing requirement as a jurisdictional prerequisite. See United Air Lines, Inc. v. Evans, supra 431 U.S. at 555, n.4, 97 S.Ct. 1885; Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Therefore, the employer’s failure to raise the filing requirement earlier does not constitute a waiver, nor is the employer estopped from raising it. The plaintiffs argue that the employer’s statements at a March 17, 1972 settlement hearing constitute an express waiver of the filing requirement issue. Although it is questionable whether any concessions made at a settlement hearing should be held to constitute a waiver when the settlement is subsequently overturned, we need not reach this question as our conclusion that this filing requirement was jurisdictional precludes a finding of waiver. Plaintiffs also argue that the employer should be estopped from raising the filing requirement because the employer failed to raise it during the many lengthy proceedings which preceded the employer’s motion to amend its answer to raise the issue. Plaintiffs characterize this conduct as “playing fast and loose with the courts,” and contend that such conduct is grounds for estoppel. We do not condone the employer’s delay in raising the jurisdiction issue, but neither do we accept the plaintiffs’ argument that the delay should estop TWA from raising subject matter jurisdiction. The cases plaintiffs" }, { "docid": "15333861", "title": "", "text": "1 letter denying review. II. In order for a district court to have jurisdiction over a private Title VII action a civil rights plaintiff must first pursue his or her administrative remedies in accordance with Section 706 of the Act. 42 U.S.C. § 2000e-5. These are (1) the timely filing of an unlawful employment practice charge; and (2) filing suit within 90 days of notification of the right to sue from the EEOC or Attorney General as the case may be. Alexander v. Gardner Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Hinton v. CPC International, Inc., 520 F.2d 1312, 1314-15 (8th Cir. 1975). One of the events requiring notification of the right to sue is dismissal of a complainant’s charge by the EEOC upon a finding of no reasonable cause. Section 706(b) states in relevant part: If the Commission determines after . investigation that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and ■ promptly notify the person claiming to be aggrieved and the respondent of its action. 42 U.S.C. § 2000e-5(b). Section 706(f)(1) reiterates this notification requirement and provides that the complainant may bring a private civil action within 90 days after receipt of such notice: If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall so notify" }, { "docid": "23361539", "title": "", "text": "1976); Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360, 363 (3d Cir. 1975); Columbia Broadcasting Systems, Inc. v. Amana Refrigeration, Inc., 271 F.2d 257, 259 (7th Cir. 1959), cert, denied, 362 U.S. 928, 80 S.Ct. 756, 4 L.Ed.2d 747 (1960). If the district court expressly directs entry of a judgment and expressly determines that there is no just reason for delay, Bobo may submit her new appeal on the basis of record and briefs prepared for this appeal as supplemented by the judgment and the district court’s Rule 54(b) certificate. Melancon v. Insurance Company of North America, 476 F.2d 594 (5th Cir. 1973). In the event that the district court decides to certify its order for appeal, it should include a brief statement explaining why there is no just reason for delay. Gumer v. Shearson, Hammill & Co., Inc., 516 F.2d 283, 286 (2d Cir. 1974); Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d at 364. Of course, we intimate no view as to how the district court in this case should exercise its discretionary power to release partial dispositions of multi-party actions for immediate appellate review. DISMISSED. . At oral argument Bobo conceded that Hucke-by’s suit cannot be regarded as a class action. . 42 U.S.C.A. § 2000e-5(f)(1) (1974). . Alexander v. Gardner-Denver Corp., 415 U.S. 36, 48, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147, 158 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 799, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668, 676 (1973); Genovese v. Shell Oil Co., 488 F.2d 84 (5th Cir. 1973). Bobo does not contend that the document she received was misleading or otherwise improper. See generally Zambuto v. American Tel. & Tel. Co., 544 F.2d 1333 (5th Cir. 1977). . Bobo urges that we remand this case because the district court neglected to issue findings of fact and conclusions of law to explain its order dismissing her complaint. Since the district court’s order is a dismissal for want of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the court was not required to “find the facts specially" }, { "docid": "10956988", "title": "", "text": "defendants allege that Mr. Zellars has not met the jurisdictional prerequisites to the filing of an action under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) or the ADEA (29 U.S.C. § 621), and thus the court lacks subject matter jurisdiction concerning those claims. Furthermore, the defendants contend that Mr. Zellars’ § 1981 claim is barred by the applicable statute of limitations. DISCUSSION A. Title VII The court stresses that Title VII permits an aggrieved employee to seek relief in federal court provided the complainant has (1) filed timely charges of employment discrimination with the EEOC and (2) receives and acts upon the EEOC’s statutory notice of the right to sue. 42 U.S.C. § 2000e-5(f)(1); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973). Under Title VII, a plaintiff must file a charge with the EEOC within 180 days of the discriminatory action of which he or she complains. EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 110, 108 S.Ct. 1666, 1668, 100 L.Ed.2d 96 (1988) (citing § 706(e), 42 U.S.C. § 2000e-5(e)); see also 29 C.F.R. § 1601.13(a)(1). As a general rule, a Title VII plaintiff cannot bring claims in a lawsuit that were not included in his or her EEOC charge. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974). The Eleventh Circuit has held that failure to file charges with the EEOC within the 180-day time period results in a bar of claims contained in the untimely filed charge. Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 662 (11th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 69, 130 L.Ed.2d 24 (1994); see also Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992 (11th Cir.1982); Durham v. Bleckley County School Sys., 680 F.Supp. 1555, 1558 (M.D.Ga.1988). Notwithstanding the rigid tone of the general rule stated in Ross, equitable principles may forestall a strict application thereof. In Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the Supreme" }, { "docid": "11832253", "title": "", "text": "it was more likely that the letter was sent on October 7 and received on October 9, given the dates stamped on the letter and the receipt. The District Court granted NYWA’s motion in a brief order: Upon consideration of defendant’s motion to dismiss for lack of jurisdiction over the subject matter, the opposition thereto, and the entire record herein, and it appearing to the Court that the plaintiff has failed to timely file her complaint pursuant to 42 U.S.C. § 2000e-5(f)(l) (1976) plaintiff’s action must be dismissed for lack of subject matter jurisdiction. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 798 [93 S.Ct. 1817, 1822, 36 L.Ed.2d 668] (1973); Wong v. Bon Marche, 508 F.2d 1249 (9th Cir. 1975). * * Appendix A to appellant’s brief at A-l. Title VII requires that plaintiffs file suit within 90 days of receiving notice from the EEOC of their right to sue. 42 U.S.C. § 2000e-5(f)(l) (1976). The sole question at issue in this case is how a defendant and the court should treat a motion to dismiss based on the defendant’s contention that the plaintiff has filed suit after expiration of the 90-day period. NYWA moved to dismiss on this basis under Rule 12(bXl), and it supported its theory that Rule 12(b)(1) applied with the argument that “[f]ailure to bring an action under the section within 90 days deprives a federal court of subject, matter jurisdiction.” Motion to Dismiss for Lack of Jurisdiction Over the Subject Matter at 2, reproduced in Appendix A to appellant’s brief at A-13, citing Hinton v. CPC International, Inc., 520 F.2d 1312, 1315 (8th Cir. 1975). The sentence quoted from Hinton, however, is not apposite to this case. It refers to a long-standing dispute among the circuits as to what the Supreme Court meant by referring to the time limits for bringing suit under Title VII as “jurisdictional,” see Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1975); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973), The Supreme Court" } ]

[ { "docid": "20912830", "title": "", "text": "In an opinion issued on September 30, 1992, the court found that Yale filed the involuntary bankruptcy petition in bad faith, and, pursuant to 11 U.S.C. § 303(i)(l)(A), and (B), awarded GTI punitive damages of $500,000 as well as attorney’s fees and costs of $87,-777. Yale’s appeal of this ruling is also addressed in this opinion. III.ISSUES This court addresses the following issues raised on appeal: (1) whether counter-defendants GTI, Baeza, Sr., Gonzalez Trading, Baeza, Jr., as well as the new transferees, consented pursuant to 28 U.S.C. § 636(c) to proceed before the magistrate judge; (2) whether in the supplementary proceedings the magistrate judge erred in finding that new transferee Power Depot was not the recipient of a fraudulent transfer; (3) whether the magistrate judge erred in finding that Yale brought the involuntary bankruptcy petition in bad faith; and, (4) whether it was error for the district court to affirm the bankruptcy court’s dismissal of the involuntary bankruptcy petition. IV.STANDARD OF REVIEW With respect to the proceedings in the district court, this court reviews factual findings for clear error, and reviews application of law to those facts de novo. Lykes Bros., Inc. v. U.S. Army Corps of Engineers, 64 F.3d 630, 634 (11th Cir.1995). For a factual finding to be clearly erroneous, this court, after reviewing all of the evidence, must be “left with the definite and firm conviction that a mistake has been committed.” Id. (quoting United States v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). With respect to the bankruptcy proceedings, this court conducts a de novo review of determinations of law, whether from the bankruptcy court or the district court. In re Bilzerian, 100 F.3d 886, 889 (11th Cir.1996). We review the bankruptcy court’s factual findings, however, under the clearly erroneous standard. Id. V.DISCUSSION A. Whether 28 U.S.C. § 636(c) was satisfied. In order for a magistrate judge to oversee any or all proceedings in a nonjury civil matter, and to order the entry of judgment in the case, 28 U.S.C. § 636(c) requires the “consent of the parties.” This" } ]

[ { "docid": "17974255", "title": "", "text": "month, the husband filed for bankruptcy; this filing stayed the wife’s state court proceeding. Both parties filed complaints in the bankruptcy court to determine the dischargeability of- the payments falling due prior to the filing in bankruptcy and for a declaration of the parties’ rights in the future retirement benefits. The bankruptcy court granted the husband a discharge on the approximately $14,000 due prior to the filing in bankruptcy. However, finding that the wife had an ownership interest in forty-three percent of the retirement fund, the bankruptcy court denied the husband a discharge on the approximately $150,000 falling due after the filing. The district court affirmed. The husband appealed from the judgment insofar as it held that the post-petition payments were not subject to discharge; the wife cross-appealed from the holding that the pre-petition payments were dischargea-ble. This court reviews findings of fact by the clearly erroneous standard, Fed.R. Civ.P. 52(a), but conclusions of law are subject to de novo review. In re American Mariner Industries, Inc., 734 F.2d 426, 429 (9th Cir.1984). We affirm. Post-Petition and Prospective Retirement Payments 11 U.S.C. § 727(b) provides that, except as provided in 11 U.S.C. § 523(a), a discharge under section 727(a) discharges a debtor from all debts that arose before bankruptcy. The bankruptcy court held that the payments falling due after the filing in bankruptcy were not debts that arose before bankruptcy and therefore not subject to discharge. The husband argued that since his obligation to pay forty-three percent of the retirement benefits was created in the property settlement agreement, the obligation was a pre-petition obligation subject to discharge under the Bankruptcy Code. The court concluded, however, that the husband could not avoid future payments by this bankruptcy since the wife “has an ownership interest in 43% of the retirement fund by reason of the final judgment in the [divorce proceedings].” Therefore, “[e]ach payment as it comes due is an obligation which the [husband] cannot avoid by this bankruptcy.” The district court is affirmed. The district court correctly held that under the dissolution decree, the wife has an ownership interest in forty-three" }, { "docid": "14225024", "title": "", "text": "John acknowledged that claims to recover fraudulent transfers could be characterized as core proceedings. After the bankruptcy court ruled, John and Poshow appealed the bankruptcy court’s decision to the district court, and John moved the bankruptcy court to issue a stay pending appeal. While his stay motion was pending, John answered the complaint. He demanded a jury trial and argued that the bankruptcy court lacked jurisdiction to adjudicate the Trustee’s claims against John because he had neither -filed a proof of claim nor consented to jurisdiction. Cognizant that this development might affect the analysis of whether .to compel arbitration, the bankruptcy court granted John a stay pending appeal. The district court affirmed the bankruptcy court. It also addressed for the first time new arguments: (1) from the Trustee, that the arbitration agreements were not enforceable against him; and (2) from John, that his answer transformed the adversary proceeding into a constitutionally non-core matter, which could alter the bankruptcy court’s Thorpe Insulation analysis. * ■* The district court determined that the Trustee was not bound to arbitrate the fraudulent conveyance claims, because he was asserting claims that either belonged to the estate’s creditors or would benefit them, and no creditor had been a party to the arbitration agreement: ■ The district court further determined that arbitration of the subordination and disallowance claims would conflict with the underlying purposes of the Bankruptcy Code, because resolution of those causes of action would require factual findings closely linked to the Trustee’s administration of the estate. John and Poshow timely appeal. Jurisdiction We have jurisdiction to review, the bankruptcy court’s order denying the motion to compel arbitration, 9 U.S.C. § 16(a)(1)(C), as Well as the district court’s orders affirming the. bankruptcy.' court,' 28 U.S.C. §§ 158,1291. Standard of Review Generally, we review a bankruptcy court’s decision independently and with out deference to. the district court’s, decision. Decker v. Tramiel (In re JTS Corp.), 617 F.3d 1102, 1109 (9th Cir.2010). This court reviews a bankruptcy court’s findings of fact for clear error and its conclusions of law de novo. Id. “[I]n a core [bankruptcy] proceeding— a" }, { "docid": "17695681", "title": "", "text": "2002 Order represented fees earned post-petition, the obligation to pay the fees was incurred pre-petition and, therefore, was a pre-petition debt that gave rise to a judicial lien that was avoidable under Section 522(f) because it impaired the Debtors’ homestead exemption. In the present appeal, the Bank seeks to overturn this Section 522(f) Order. Subsequent to the oral arguments on this appeal, the bankruptcy court certified the August 21, 2002 Order as final for purposes of appeal. The Debtors have appealed the underlying judgment. In oral arguments, the parties informed this Court that the Trustee’s Section 727 discharge claims remain pending, but that the bankruptcy court has taken under advisement summary judgment motions on the Trustee’s Section 727 claims. II. Appellate Jurisdiction The Debtors filed a timely notice of appeal under Fed. R. Bankr.P. 8002. The Bankruptcy Court’s Order of November 21, 2003, granting the Debtors’ Motion to avoid the judicial lien of the Bank, is a final, appealable order for purposes of this Court’s jurisdiction. With the consent of the parties, this Court has jurisdiction to hear appeals from “final judgments, orders, and decrees” of bankruptcy courts within the Tenth Circuit. Neither party has opted to have this appeal heard by the United States District Court for the Western District of Oklahoma and, therefore, they are deemed to have consented to the jurisdiction of this Court. III. Standard of Review Where, as here, the salient facts are undisputed, we conduct a de novo re view of the lower court’s conclusions of law. When conducting a de novo review, the appellate court is not constrained by the trial court’s conclusions, and may affirm the trial court on any legal ground supported by the record. IV. Discussion A. Debtors May Use Section 522(f) to Set Aside Liens on Certain Non-dischargeable Judgments The Bank asserts that the bankruptcy court erred in setting aside its lien on the Debtors’ homestead for several reasons. First, it claims that Section 522(f) cannot be utilized by a debtor to avoid a lien that arose post-petition. Section 522(f)(1) provides that a “debtor may avoid the fixing of" }, { "docid": "17481490", "title": "", "text": "Debtors had equipment that was purchased or leased from third parties in connection with their business. Soon after filing for bankruptcy, the Debtors returned almost all personal property to secured creditors/lessors pursuant to agreements and orders of the Bankruptcy Court. The Debtors retained only some vehicles, which were sold for $54,500.00, and office furnishings valued at $3,700.00, equaling a combined value of $58,200.00. The total of the claims filed by the Taxing Authority, $81,054.73, was far in excess of the total value of the remaining personal property, but the Taxing Authorities contended this property remained encumbered by their tax lien, up to the full value of the remaining property. The Bankruptcy Court agreed and the District Court affirmed. For the reasons set forth below we also affirm. This Court applies the same standard of review as the district court does reviewing the Bankruptcy Court’s factual findings for clear error and its legal conclusions and mixed questions of fact and law under a de novo standard. In re Mercer, 246 F.3d 391, 402 (5th Cir.2001). Section 32.01(b) of the Texas Tax Code states that: (a) On January 1 of each year, a tax lien attaches to property to secure the payment of all taxes, penalties, and interest ultimately imposed for the year on the property, whether or not the taxes are imposed in the year the lien attaches. The lien exists in favor of each taxing unit having power to tax the property. (b) A tax lien on inventory, furniture, equipment, or other personal property is a lien in solido and attaches to all inventory, furniture, equipment, and other personal property that the property owner owns on January 1 of the year the lien attaches or that the property owner subsequently acquires. Tex. Tax Code Ann. §§ 32.01(a) & (b)(2001). The term in solido literally means “as a whole” and creates an obligation of joint and several liability. Black’s Law DiCtionaey 799 (7th ed.1999). The Taxing Authorities relied on this section to establish their lien on all of the Debtor’s property. The Debtors appear to recognize that this lien existed, but" }, { "docid": "20381208", "title": "", "text": "not create a per se rule against' lien-stripping in the Chapter 20 context. The court proceeded to consider, as it always does in any Chapter 13 case, whether the debtors filed their petition in good faith. Finding that the Davises had acted in good faith, Judge Lipp entered an order stripping off the third-priority lien on the Davises’ home. J.A. 65-66. Judge Lipp subsequently entered orders stripping off the second and third liens on the Davises’ rental property and confirming the Davises’ bankruptcy plan. J.A. 67-72. Both the Trustee and the holder of the third-priority lien against the Davises’ home, TD Bank, N.A., appealed to the district court, which affirmed. c. Marquita Moore filed a Chapter 7 petition on February 1, 2010, for which she received a discharge on October 20, 2010. One week later, Moore filed a Chapter 13 petition. Moore sought to pay an Internal Revenue Service priority claim and strip off a second lien, which had no value, on her principal home. The Trustee never contended that Moore filed her Chapter 13 petition in bad faith. On January 5, 2011, the bankruptcy court granted Moore’s motion to strip off the second lien. Subsequently, the bankruptcy court confirmed Moore’s plan and adopted Judge Lipp’s rationale to overrule the Trustee’s objection to the lien-stripping component of the confirmation order. The Trustee appealed, and the district court affirmed. We have jurisdiction to consider these appeals under 28 U.S.C. § 158(d). II. The question presented is whether BAPCPA precludes the stripping off of valueless liens by Chapter 20 debtors ineligible for a discharge. In a bankruptcy appeal, “we review the district courtf’s] decision de novo, effectively standing in its shoes to consider directly the findings of fact and conclusions of law by the bankruptcy court.” Morris v. Quigley (In re Quigley), 673 F.3d 269, 271 (4th Cir.2012) (internal quotations omitted). “[W]e review legal conclusions by the bankruptcy court de novo and may overturn its factual determinations only upon a showing of clear error.” Id (internal quotations omitted). A. Before reaching the issue raised by the Trustee, we consider the threshold question" }, { "docid": "11241696", "title": "", "text": "OPINION RALPH B. GUY, JR., Circuit Judge. Debtors, Duane Hamilton Holland and Judith Lynne Holland, appeal the district court’s decision affirming the bankruptcy court. The bankruptcy judge had denied debtors’ motion to avoid judicial liens that they alleged impaired their exemption of homestead property from their bankruptcy estate. Based upon our review of the record and the arguments presented on appeal, we conclude that the motion should have been granted in light of the 1994 amendments to the Bankruptcy Code defining impairment, see 11 U.S.C. § 522(f)(2)(A), and, therefore, we reverse. I. This appeal arises from circumstances surrounding the Hollands’ Chapter 7 bankruptcy proceedings. The filing was precipitated in part by the recording of judgment liens on their homestead property by creditor, Star Bank N.A., in the amount of $249,-474.50. The debtors’ petition for bankruptcy included a claim for a $10,000 real estate homestead exemption for their personal dwelling, which had a fair market value of $149,500. There was a mortgage on the property of $146,330.53 held by a third party, Folkers Associates, leaving the debtors an equity interest in the home of $3,169.47. Star Bank did not object to the debtors’ claimed exemption. Shortly after filing for bankruptcy, the debtors filed a motion to avoid Star Bank’s judgment liens. The bankruptcy court denied the motion. The debtors moved for reconsideration, but that motion was also denied. On appeal of these orders, the district court affirmed, In re Holland, 215 B.R. 861 (S.D.Ohio 1997), and this appeal followed. II. In bankruptcy appeals, we review de novo the district court’s conclusions of law. In re Moreland, 21 F.3d 102, 104 (6th Cir.1994). The bankruptcy court makes the initial findings of fact, which both the district court and this court review for clear error. Id. The Bankruptcy Code allows debtors to exempt certain property from the bankruptcy estate. 11 U.S.C. § 522(b). The law allows states, however, to withdraw from the federal exemption system and establish their own exemptions, if any. Id. § 522(b)(1); Owen v. Owen, 500 U.S. 305, 308, 111 S.Ct. 1833, 114 L.Ed.2d 350 (1991) (state “could theoretically accord" }, { "docid": "20381209", "title": "", "text": "petition in bad faith. On January 5, 2011, the bankruptcy court granted Moore’s motion to strip off the second lien. Subsequently, the bankruptcy court confirmed Moore’s plan and adopted Judge Lipp’s rationale to overrule the Trustee’s objection to the lien-stripping component of the confirmation order. The Trustee appealed, and the district court affirmed. We have jurisdiction to consider these appeals under 28 U.S.C. § 158(d). II. The question presented is whether BAPCPA precludes the stripping off of valueless liens by Chapter 20 debtors ineligible for a discharge. In a bankruptcy appeal, “we review the district courtf’s] decision de novo, effectively standing in its shoes to consider directly the findings of fact and conclusions of law by the bankruptcy court.” Morris v. Quigley (In re Quigley), 673 F.3d 269, 271 (4th Cir.2012) (internal quotations omitted). “[W]e review legal conclusions by the bankruptcy court de novo and may overturn its factual determinations only upon a showing of clear error.” Id (internal quotations omitted). A. Before reaching the issue raised by the Trustee, we consider the threshold question of whether a bankruptcy court may strip off a valueless lien in a typical Chapter 13 proceeding. The answer, in the view of those circuits to have considered the question, is that a bankruptcy court may grant such relief. See Zimmer v. PSB Lending Corp. (In re Zimmer), 313 F.3d 1220 (9th Cir.2002); Lane v. W. Interstate Bancorp (In re Lane), 280 F.3d 663 (6th Cir.2002); Pond v. Farm Specialist Realty (In re Pond), 252 F.3d 122 (2d Cir.2001); Tanner v. FirstPlus Fin. (In re Tanner), 217 F.3d 1357 (11th Cir.2000); Bartee v. Tara Colony Homeowners Ass’n (In re Bartee), 212 F.3d 277 (5th Cir.2000); McDonald v. Master Fin. (In re McDonald), 205 F.3d 606 (3d Cir.2000). We too have affirmed, albeit in unpublished opinions, the stripping off of valueless liens against principal residences in Chapter 13 cases. See First Mariner Bank v. Johnson (In re Johnson), 407 Fed.Appx. 713 (4th Cir.2011); Suntrust Bank v. Millard (In re Millard), 404 Fed.Appx. 804 (4th Cir.2010). To exercise this authority, bankruptcy courts rely on sections 506 and" }, { "docid": "11342975", "title": "", "text": "in December 2009 and closed the case in March 2010. Thereafter, the Lease was assigned to LDRV. On May 12, 2011, LDRV attempted to exercise the purchase option, but I-i refused to honor it. On June 1 and June 7, 2011, the parties each .filed lawsuits in Florida state court seeking a determination of their respective rights under the Lease. Also on June 7, the Reorganized Debtors filed an emergency motion to reopen in the Bankruptcy. Court, seeking a ruling that the Lease’s anti-assignment provision was unenforceable pursuant to 11 U.S.C. § 365(f)(3), which renders unenforceable any “provision in an ... unexpired lease of the debtor ... that terminates or modifies ... a right ... under such ... lease on account of an assignment” of the lease. Nine days later, after allowing 1-4 to file an opposition and holding a hearing, the Bankruptcy Court held that the anti-assignment provision was unenforceable and that I-4’s refusal to honor the purchase option violated the Settlement Agreement. The Bankruptcy Court then ordered 1-4 to honor the option. 1-4 appealed to the District Court, which vacated the Bankruptcy Court’s order., holding that the Bankruptcy Court’s judgment was an advisory opinion directed at the Florida state courts. The Reorganized Debtors now appeal. II The Reorganized Debtors invoked the Bankruptcy Court’s jurisdiction under 11 U.S.C. § 350(b). The District Court had jurisdiction over the appeal of the Bankruptcy Court’s decision under-28 U.S.C. § 158(a), and we have jurisdiction pursuant to 28 U.S.C. §§ 158(d) and 1291. In reviewing the Bankruptcy Court proceedings, we apply the same standard as the District Court. Accordingly, we review the Bankruptcy Court’s legal determinations de novo, its findings of historical fact for clear error, and its decision to reopen for abuse of discretion. See In re Zinchiak, 406 F.3d 214, 221-22 (3d Cir.2005). Ill We first consider whether the Bankruptcy Court had jurisdiction to reopen the proceedings. The District Court held that the Bankruptcy Court lacked jurisdiction because the Bankruptcy Court issued an advisory opinion. In addition to the District Court’s holding, 1-4 offers alternative grounds for affirmance. In I-4’s view," }, { "docid": "16641831", "title": "", "text": "September 1990 to August 1993 and $1,000 per month for the ensuing nine months. Orso defaulted; Canfield filed suit in state court late in 1990; Orso’s mother, Janice Orso, filed interdiction proceedings in May of 1992 and was appointed as her son’s curatrix in September; and, in July 1994, a state court rendered a judgment in favor of Canfield for Orso’s ar-rearages under their property settlement agreement. On December 24, 1994, Orso’s mother, acting in her capacity as curatrix of her interdicted son, filed a Chapter 7 bankruptcy petition on his behalf. The annuity payments were listed as assets of the estate but were claimed to be exempt under La.Rev.Stat. Ann. § 22:647, which in relevant part shields payments under annuity contracts from seizure. Canfield, who filed a $53,494.92 claim in Orso’s bankruptcy for the arrearages under their property settlement agreement, objected to Orso’s efforts to exempt the annuity payments, but the trustee supported Orso’s claim of exemption. Almost three years later, the bankruptcy court rendered a lengthy opinion denying Canfield’s objection. The district court affirmed. A divided three-judge panel of this court reversed the district court, concluding that Orso’s payments from the Annuities should not be exempt in his bankruptcy proceedings. The panel majority’s judgment was then vacated when we voted to rehear the case en banc. II. ANALYSIS A. Standard of Review The bankruptcy court’s denial of an objection to a debtor’s claim of exemption is a final order, subject to immediate appeal. We have jurisdiction to hear this appeal of the district court’s affirmance of the bankruptcy judgment. In a bankruptcy case, we review the decision of the district court in its capacity as an appellate court. We review the bankruptcy court’s findings of fact affirmed by the district court for clear error, but review the district court’s conclusions of law de novo. B. Framework Reduced to its essentials, this case requires us to interpret a state statute in the context of bankruptcy. The elements that frame this inquiry are (1) interests in property owned by the debtor (2) on the date that his petition in bankruptcy" }, { "docid": "19738769", "title": "", "text": "estop Motorola from challenging any aspect of the liens or contesting the distribution of any part of the $137 million. Application of the doctrine is unwarranted here. Motorola's position does not rest on a contention that the liens are in fact invalid, but rather that right up until (and indeed dependent on approval of) the Settlement, there remained significant doubts as to the whether the liens were avoidable under the Bankruptcy Code based on the Committee’s court-approved challenge to those purported liens. . Section 541 of the Bankruptcy Code defines \"property of the estate” to include \"all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). The bankruptcy court’s order approving the Settlement reads, in part, as follows: “To the extent provided for in the Settlement Agreement, the liens held by [the Lenders] are validated and are conclusively deemed to be senior, valid, perfected, enforceable and unavoidable and not subject to offsets, defenses, claims or counterclaims by the Estate[] and not subject to any other lien.” (emphasis added). The district court echoed this conclusion when it noted that \"[a]s part of the Settlement Agreement, the security interests of the previously contested liens of the Lenders were validated.” In re Iridium, 2005 WL 756900, at *2 (footnote omitted). Further, the Committee’s own motion for approval of the Settlement describes the money held by the Lenders as an \"asset[] of the Estate[].” . The bankruptcy court’s articulation of Rule 9019's standard for evaluating a settlement is a legal issue subject to de novo review. We review for abuse of discretion the reasonableness of that court's application of the Rule in approving the Settlement. In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 292 (2d Cir.1992). . See Reynaldo Anaya Valencia, The Sanctity of Settlements and the Significance of Court Approval: Discerning Clarity from Bankruptcy Rule 9019, 78 OR. L. REV. 425, 435 (1999). . In TMT Trailer Ferry, the Supreme Court held that [tjhere can be no informed and independent judgment as to whether a proposed compromise is fair and" }, { "docid": "18605045", "title": "", "text": "resolved on remand. C. Interest on Attorney’s Fees This issue turns on whether the loan instruments authorize interest on attorney’s fees under the circumstances of this case. The contractual language at issue provides for interest on attorney’s fees incurred only “by reason of litigation with third parties to protect the lien of this mortgage.” We find this language unambiguous and we therefore agree with the district court that the bankruptcy court’s interpretation of it is subject to de novo review. We do not believe, however, that the bankruptcy court’s resolution of this issue turned on its interpretation of the language. Rather, the language renders crucial the factual issue of whether the attorney’s fees were indeed incurred in the course of litigation to protect Equitable’s lien. The bankruptcy court’s implicit negative finding on that issue is not clearly erroneous. Although it may be true, as the district court observed, that “Equitable had to constantly protect its interest from the debtors and from other creditors,” there was ample evidence, notably the July 8, 1988 deposition testimony of Tom Mercer on behalf of Equitable, that Equitable has never been involved in any litigation with third parties (i.e., other creditors) to protect its mortgage lien. Indeed, Equitable asserts on appeal that “[t]he perfection and enforceability of Equitable’s mortgage as a first lien against the debtors’ real property have never been challenged and are not in dispute.” Initial Brief of Appellant at 5. For these reasons, the district court erred in reversing the bankruptcy court on this issue. III. CONCLUSION For the reasons stated, we REVERSE the district court’s judgment on both issues in this case. We REMAND the case to the district court with instructions to (1) REVERSE the bankruptcy court’s disallowance of Equitable’s.claimed interest on the unpaid installments and REMAND the case to the bankruptcy court for appropriate findings of fact and conclusions of law on that issue in accordance with this opinion, and (2) AFFIRM the bankruptcy court’s disallowance of Equitable’s claimed interest on attorney’s fees. . This figure also takes into account a partial payment of $33,250 made by the Subletts" }, { "docid": "13621570", "title": "", "text": "and Lucas in California Superior Court, alleging, among other things, conversion and contract violations and seeking, in part, recission of contracts involving the Kimnod partnership, restitution, and dissolution of the partnership. All defendants defaulted, and the state court entered judgment against Harmon, Lucas Ostrich, and Lucas. The court ordered, among other things, recission of the contracts and of the Kimnod partnership agreement, and restitution in the amount of $293,456.11, plus interest and costs. The court held all defendants jointly and severally liable for the money judgment. After the state judgment became final, Harmon filed for Chapter 11 bankruptcy protection. Kobrin then filed an adversary action, seeking to have the state judgment debt adjudged nondischargeable under the fraud exception, 11 U.S.C. § 523(a)(2)(A). Harmon filed a motion to dismiss, and Kobrin filed a cross-motion for summary judgment. Kobrin based his motion for summary judgment on the ar gument that the state court default judgment was preclusive of the issue of whether Harmon had committed fraud under § 523(a)(2)(A). The bankruptcy court granted summary judgment to Kobrin, declaring the debt nondischargeable. Harmon appealed to the district court, which affirmed the bankruptcy court’s judgment. Harmon now appeals the district court’s order. STANDARD OF REVIEW We review the district court’s decision on appeal from the bankruptcy court de novo, without giving deference to the district court’s conclusions. Preblich v. Battley, 181 F.3d 1048, 1051 (9th Cir.1999). We review the bankruptcy court’s findings of fact for clear error and its conclusions of law de novo. Id. In reviewing the bankruptcy court’s grant of summary judgment, we must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the bankruptcy court correctly applied the substantive law. Parker v. Community First Bank (In re Bakersfield Westar Ambulance, Inc.), 123 F.3d 1243, 1245 (9th Cir.1997). No questions of fact are at issue in this appeal; the parties disagree only about whether the bankruptcy court correctly applied California preclusion law. Thus, our review is entirely de novo. Discussion Principles of collateral estoppel apply to proceedings" }, { "docid": "15438068", "title": "", "text": "proof of claim against Pirani’s bankruptcy estate based on the state-court agreed final judgment on the payment claim. Pira-ni then initiated this adversary proceeding, bringing a claim against HNM and Baha-ria, Gilani, and Lalani for breach of the guaranty agreement that had been assigned to him by the bank. He sought to recover $828,190.13 — the full amount of the alleged deficiency on the note. As an affirmative defense against Pirani’s guaranty claim, HNM and the three investors asserted that no deficiency existed with respect to the note, because the hotel’s fair market value at the time of foreclosure exceeded the foreclosure sale price by more than the alleged deficiency. They also counterclaimed for breach of the settlement agreement and breach of fiduciary duty. Pirani argued that the counterclaims were barred by res judicata. After a trial in the adversary proceeding, the bankruptcy court issued findings of fact and conclusions of law, in which it held that Baharia, Gilani, Lalani, and HNM’s counterclaim for breach of the settlement agreement was not barred by res judicata; that Pirani was bound by and had breached the settlement agreement; that Pirani’s claim for breach of the guaranty agreement was barred by his breach of the settlement agreement; and that the HNM parties were entitled to attorney’s fees and costs on the basis of their successful claim for breach of the settlement agreement. The district court affirmed the bankruptcy court judgment, and this appeal followed. II. We review the bankruptcy court’s findings of fact for clear error and its conclusions of law de novo. See In re Bayhi, 528 F.3d 393, 402 (5th Cir.2008). When, as here, a district court has affirmed the bankruptcy court’s factual findings, we will reverse only if we are left with the definite and firm conviction that an error has been made. See id. III. A. Pirani first challenges the district court’s affirmance of the bankruptcy court’s holding that res judicata did not bar Baharia, Gilani, and Lalani’s breach-of-contract counterclaim. Baharia, Gilani, and Lalani contend that Pirani promised in the settlement agreement to secure their release from their personal" }, { "docid": "19281329", "title": "", "text": "Cir.1982). Accordingly, we will affirm the judgment of the District Court. .The District Court had jurisdiction pursuant to 28 U.S.C. § 158(a), and we have jurisdiction pursuant to 28 U.S.C. §§ 158(d) and 1291. In reviewing orders of the Bankruptcy Court, we apply the same standard of review as the District Court. See In re Myers, 491 F.3d 120, 124-25 (3d Cir.2007). Thus, we review for abuse of discretion both the Bankruptcy Court’s decision to dismiss a petition, see id. at 125, and its fee awards, see In re Engel, 124 F.3d 567, 571 (3d Cir.1997), though we review underlying factual findings for clear error and underlying legal conclusions de novo, see In re Myers, 491 F.3d at 125. We review de novo the District Court’s determination of its subject matter jurisdiction as well. See In re Seven Fields Dev. Corp., 505 F.3d 237, 253 (3d Cir.2007). . We note that Fleurantin also did not designate the February 20, 2007 order in his two notices of appeal to the District Court, which mentioned and attached only the Bankruptcy Court's orders of December 1 and 29, 2008. Because any appeal of the February 20, 2007 order would be untimely, we need not consider whether Fleurantin’s notices of appeal were effective as to that order. . Fleurantin's sole argument on the merits of the conversion issue is that the Bankruptcy Court should not have converted his proceeding to one under Chapter 7 because he was ineligible for another Chapter 7 discharge after having obtained one less than six years earlier. See 11 U.S.C. § 727(a)(8) (1986 version). For Fleurantin's benefit, we note that a discharge is not the only benefit of proceeding with a Chapter 7 bankruptcy. See 6 Collier on Bankruptcy ¶ 727.11 (15 ed. 2009) (\"Even in a proceeding in which the debtor is not entitled to a discharge, a debtor may still obtain protection for property, since the exemptions and lien avoidance powers provided by section 522 of the Code would still apply as in any other case.”); cf. In re Bateman, 515 F.3d 272, 281 (4th Cir.2008) (noting" }, { "docid": "14717445", "title": "", "text": "PRYOR, Circuit Judge: This bankruptcy appeal involves a transfer of liens by subsidiaries of TOUSA, Inc., to secure the payment of a debt owed only by their parent, TOUSA. On July 31, 2007, TOUSA paid a settlement of $421 million to the Senior Transeastern Lenders with loan proceeds from the New Lenders secured primarily by the assets of several subsidiaries of TOUSA. Six months later, TOUSA and the Conveying Subsidiaries filed for bankruptcy. In an adversary proceeding filed by the Committee of Unsecured Creditors of TOUSA, the bankruptcy court avoided the liens as a fraudulent transfer because the Conveying Subsidiaries did not receive reasonably equivalent value; ordered the Transeastern Lenders to disgorge $403 million of the loan proceeds because the transfer of the liens was for the benefit of the Transeastern Lenders; and awarded damages to the Conveying Subsidiaries. The Transeastern Lenders and the New Lenders, as intervenors, appealed. The district court quashed the judgment as to the Transeastern Lenders and stayed the appeal of the New Lenders. This appeal by the Committee of Unsecured Creditors presents two issues: (1) whether the bankruptcy court clearly erred when it found that the Conveying Subsidiaries did not receive reasonably equivalent value in exchange for the liens to secure loans used to pay a debt owed only by TOUSA, 11 U.S.C. § 548; and (2) whether the Transeastern Lenders were entities “for whose benefit” the Conveying Subsidiaries transferred the liens, 11 U.S.C. § 550(a)(1). We hold that the bankruptcy court did not clearly err when it found that the Conveying Subsidiaries did not receive reasonably equivalent value for the hens and that the bankruptcy court correctly ruled that the Transeastern Lenders were entities “for whose benefit” the liens were transferred. We reverse the judgment of the district court, affirm the liability findings of the bankruptcy court, and remand for further proceedings consistent with this opinion. I. BACKGROUND We divide our summary of the events that led to this appeal into three parts. We first recount the uncontested facts that underlie this appeal. We then review the findings of fact and conclusions of law" }, { "docid": "21029300", "title": "", "text": "success through a series of demand letters, Shell agreed to meet with TCC executives in Calgary on February 13. There they negotiated an agreement, formalized on March 10, in which TCC granted Shell a lien on many of its assets. This lien, which was perfected on March 13, served as security for past and future obligations to Shell. All of this activity culminated on April 10, 1989 when TCC filed its voluntary Chapter 11 petition. Scott N. Brown, Jr., the bankruptcy trustee, instituted an adversarial pro ceeding against Shell on May 3,1990, seeking to limit the amount of Shell’s secured claim against TCC and to recover as preferences some of the payments that TCC had made to Shell within the ninety-day period before the filing of the petition. II. 1. Solvency of TCC By agreement of the parties, the bankruptcy court bifurcated the proceedings below. In the first of two opinions at issue on appeal, the bankruptcy court addressed the question whether TCC was insolvent when it transferred the security interest to Shell in March 1989. In re Tennessee Chem. Co., 143 B.R. 468 (Bankr.E.D.Tenn.1992). The bankruptcy trustee argued that, due to the insolvency of TCC at the time of the transfer, the transfer could be avoided under 11 U.S.C. § 547(b). The bankruptcy court agreed and entered an order finding that TCC was insolvent at the time of the disputed transfer to Shell. 143 B.R. at 480. The district court affirmed that decision on appeal. On appeal to this court, we independently review decisions of the bankruptcy court. Factual findings are reviewed for clear error, while legal conclusions are subject to de novo review. In re Chavis, 47 F.3d 818, 821 (6th Cir.1995). A bankruptcy court’s determination that a debtor was insolvent at the time of a transfer for purposes of § 547(b) is a factual finding that is reviewed for clear error. In re Lamar Haddox Contractor, Inc., 40 F.3d 118, 120 (5th Cir.1994). Having had the benefit of extensive briefing and oral argument, we cannot say that the bankruptcy court committed clear error in finding that TCC" }, { "docid": "16968007", "title": "", "text": "district court also did not address these issues. III. CONCLUSION Accordingly, we affirm the conclusion of the district court that a valid attorney’s charging lien under Florida law is not a “judicial lien” that may be avoided pursuant to § 522(f)(1) of the Bankruptcy Code. Nonetheless, we vacate the district court’s order, dated September 16, 1999, which reversed the bankruptcy court’s order, dated July 29, 1998, and remand to the district court to address, in the first instance, the issues of state law raised by Washington. AFFIRMED IN PART AND VACATED AND REMANDED IN PART. . We review de novo determinations of law, whether made by the bankruptcy court or by the district court. Williams v. EMC Mortgage Corp. (In re Williams), 216 F.3d 1295, 1296 (11th Cir.2000). . Relying on the Supreme Court decision in Farrey v. Sanderfoot, 500 U.S. 291, 111 S.Ct. 1825, 114 L.Ed.2d 337 (1991), the district court noted in a footnote that Weed’s lien could not be avoided under § 522(f)(1) for the additional reason that the lien \"fixed” to the homestead property before Washington received a fee simple interest in it — at a time when it was owned as a tenancy by the entire-ties. Because the Supreme Court has held that § 522(f)(1) does not allow for the avoidance of liens that fixed to property in advance of a debtor’s ownership, the district court noted that the lien was unavoidable for this additional reason. This reasoning also assumes that Weed’s lien on Washington’s homestead property was a valid charging lien that properly vested in advance of the order of the Florida divorce court. . We note that Appellant filed the same brief in this Court that she filed in the district court in support of the bankruptcy court’s order allowing her to avoid the lien. Further, Ap-pellee has filed no brief in this Court at all. The inadequacy of the briefing to assist the Court in resolving the state law issues presented by this appeal further warrants our remand to the district court where the issues can be more fully addressed. Furthermore, our" }, { "docid": "15105158", "title": "", "text": "Cana-tella’s instigation, the trustee abandoned the claims against the Frink entities. At that time, there was no indication that the debtors were asserting claims against the Bank. Furthermore, the debtors and Cana-tella did not enter into the fee agreement until after the order approving abandonment of the claims in the Frink action was entered. Only then did Canatella file the first amended complaint on behalf of the debtors, asserting claims against the Bank for the first time. Thus, the claims against the Bank that ultimately ripened into a settlement did not come to the estate encumbered with an attorney’s lien. The lien could not have attached until the fee contract was made. This occurred months after the Chapter 7 petition was filed and after the claims had become estate assets. Canatella and the debtors could not create a lien on estate property by their fee agreement. Finally, Canatella argues that his representation of the debtors with regard to the claims against the Bank benefited the estate. It is clear, however, that Canatella’s efforts to collect from the Bank were made on behalf of the debtors, not for the benefit of the estate. He consistently took the position that the trustee had abandoned the claims against the Bank and filed a motion long after the Frink claims had been abandoned seeking to have the court confirm that the claims against the Bank had been included in the earlier order of abandonment. The bankruptcy court denied that motion, and when the district court affirmed, he appealed to this court. Only after this court conclusively determined that the claims against the Bank were property of the estate that had not been abandoned to the debtors did Canatella seek to enforce an attorney’s lien on the proceeds of the settlement. IV. This court reviews the findings of fact of a bankruptcy court under the clearly erroneous standard and considers questions of law de novo. Bankruptcy Rule 8013; In re Anderson, 833 F.2d 834, 836 (9th Cir.1987). A. The bankruptcy court’s findings of fact are not clearly erroneous. The estate did not abandon the claims" }, { "docid": "4748532", "title": "", "text": "secured status of its claim and the bankruptcy court could not trace Bellwood’s assertions to specific property or proceeds in the Trustee’s possession. The court stated that Bellwood failed to prove its liens, “unavoidable though they might be.” Nonetheless, the bankruptcy court further held that the settlement agreement entered into between the Trustee and Bell-wood in the adversary proceeding barred the Trustee from objecting to Bellwood’s secured proof of claim. Further, the bankruptcy court determined that the agreed order dismissing the adversary proceeding also precluded the Trustee from objecting to Bellwood’s proof of claim under the doctrine of res judicata. Both parties filed motions for reconsideration and the bankruptcy court, by order dated May 26, 1992, denied these motions. On appeal, Bellwood raises numerous arguments against the disallowance of its claim for its failure to follow Bankruptcy Rule 3001. The Trustee appeals only from the bankruptcy court’s decisions that the settlement agreement and the doctrine of res judicata barred his objection to Bell-wood’s proof of claim. DISCUSSION On an appeal from an order of the bankruptcy court, the district court reviews factual findings for clear error and reviews conclusions of law de novo. In re Bonnett, 895 F.2d 1155, 1157 (7th Cir.1989). I. Appeal of the Bank of Bellwood. The issue in Bellwood’s appeal is whether the bankruptcy court properly disallowed Bellwood’s claim sua sponte for failure to comply with Bankruptcy Rule 3001 when the Trustee’s only objection to the creditor’s claim is that the claim is avoidable under section 547(b), not that it is an invalid claim or that there is insufficient proof of such claim. The court concludes that the bankruptcy court erred when it disallowed Bellwood’s claim without first providing sufficient opportunity for Bell-wood to amend its proof of claim and proceed with its burden of proving its claim. Bankruptcy Rule 3001(c) requires a creditor to attach a writing to its proof of claim if the creditor bases its claim on a writing, and Rule 3001(d) requires a creditor to accompany a proof of claim with evidence that the creditor perfected a security interest if it claims" }, { "docid": "15105159", "title": "", "text": "from the Bank were made on behalf of the debtors, not for the benefit of the estate. He consistently took the position that the trustee had abandoned the claims against the Bank and filed a motion long after the Frink claims had been abandoned seeking to have the court confirm that the claims against the Bank had been included in the earlier order of abandonment. The bankruptcy court denied that motion, and when the district court affirmed, he appealed to this court. Only after this court conclusively determined that the claims against the Bank were property of the estate that had not been abandoned to the debtors did Canatella seek to enforce an attorney’s lien on the proceeds of the settlement. IV. This court reviews the findings of fact of a bankruptcy court under the clearly erroneous standard and considers questions of law de novo. Bankruptcy Rule 8013; In re Anderson, 833 F.2d 834, 836 (9th Cir.1987). A. The bankruptcy court’s findings of fact are not clearly erroneous. The estate did not abandon the claims against the Bank; they remained assets of the estate. This question was settled upon the first appeal to this court. Further, the record fully supports the finding that Canatella represented the debtors, not the estate, in his efforts against the Bank. At all times he contended that the Bank claims had been abandoned. When special counsel for the estate reached an agreement with the Bank to settle the claims, Canatella filed objections on behalf of the debtors. The findings that Canatella consistently took positions adverse to the trustee and that his efforts conferred no benefit on the estate are supported by the record. B. The rulings of the bankruptcy court and the district court are correct as a matter of law. The post-petition contingent fee agreement did. not create a lien on the proceeds of the settlement. Putting aside the procedural deficiencies of Canatella’s efforts to collect from the estate, the fee claim does not satisfy the basic criterion for any allowance of compensation to an attorney from the funds of an estate in bankruptcy." } ]

[ { "docid": "7313047", "title": "", "text": "Cir. 1973), cert. denied, sub nom. Rochford v. Confederation of Police, 416 U.S. 956, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974). When defendant appeared before the grand jury, however, his choice appeared to be either to relinquish the Fifth Amendment privilege or risk the loss of his employment. He contends that the false declaration charge was a product of that dilemma. In his view, it was unfair to require him simultaneously to defend both the extortion and false declaration counts based on his coerced denial of the facts underlying the extortion. We are unable to agree with this analysis. First, the pressures to which the rule subjected a policeman-witness at grand jury proceedings have little bearing on the propriety of a joint trial on the resulting charges. In essence, defendant’s argument is that the rule made it unfair to question him before the grand jury and indict him for a false answer. If the argument were accepted, the relief should be dismissal of Count II, not separate trials. Despite, however, the threat of discharge implicit in the department rule, the false declaration count was not improper. Before the grand jury, defendant could have invoked the privilege against self-incrimination, and refused to answer regarding receipt of the |200 check. In that event, despite the rule, the department could not lawfully have discharged him for his insistence on the privilege. Gardner v. Broderick, 392 U. S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Sanitation Men Ass’n, Inc. v. Sanitation Comm’r, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968). This was the court’s holding in Confederation of Police v. Conlisk, supra. On the other hand, defendant could, as he did, waive the privilege and answer. In that event, his testimony regarding past conduct could not be used against him in a criminal proceeding involving such conduct. Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). The compulsion of the rule does not, however, justify a witness in testifying falsely. “In short, while a public employee may not be put to the Hobson’s Choice of self-incrimination" } ]

[ { "docid": "8722187", "title": "", "text": "the examination, over a defendant’s objection, to violate a defendant’s privilege against self-incrimination. 388 F.2d at 725. Similarly, in this case the purpose of the examination is not to bypass the adversary system and extract incriminating statements from the defendant to be used against him in a subsequent criminal proceeding. The clear purpose is to evaluate the prisoner so that he may be assigned to the appropriate institution at the appropriate custody level with a basic program plan for treatment that fits his rehabilitation and training needs. In this context, Taylor’s right to be free from self-incrimination did not arise. Only if the state attempted to use the evaluation in a subsequent criminal proceeding would Taylor’s right to assert the fifth amendment be triggered. See Estelle v. Smith, 451 U.S. at 462-65, 101 S.Ct. at 1872-74. At that time, Taylor would be entitled to have the evaluation suppressed if its content were offered against him and if Taylor had not otherwise waived the right. Id. Taylor correctly points out that the likelihood of suppression at trial does not negate an investigator’s violation of the fifth amendment in the original course of questioning. Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); see also Uniformed Sanitation Men Association v. Commissioner of Sanitation, 392 U.S. 280, 284, 88 S.Ct. 1917, 1919, 20 L.Ed.2d 1089 (1968). However, in this case, as opposed to the cases in Gard- ner and Uniformed Sanitation Men, there was no violation of the fifth amendment in the first instance. In Gardner, the Court held that a state may not discharge a police officer for refusing to waive his fifth amendment right against self-incrimination. The court stated that the great privilege against self-incrimination does not tolerate the attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of the loss of employment. It is clear that petitioner’s testimony was demanded before the grand jury in part so that it might be used to prosecute him, and not solely for the purpose of securing an accounting of his performance" }, { "docid": "21596103", "title": "", "text": "contentions. The district court concluded that “an individual, including a police officer, is deprived of his or her Fifth Amendment rights when forced by the government during a criminal investigation to answer questions or face job forfeiture.” J.A. at 19. It noted, however, that there would be no violation if the officers had been offered use immunity and derivative use immunity. J.A. at 11. But the district court concluded that a constitutional violation occurs where, as here, “the coerced answers are given in the course of an investigation solely or even in part to result in a prosecution of the witness, so that those indicating [sic] the criminal investigation are provided the answers, there has been no effective immunity and there has been an improper coercion of the witness’ answers.” J.A. at 14-15. In addition, although the district court recognized that “a number of courts” had taken a position contrary to its own on the substantive legal question, see J.A. at 16 n. 13, it found that the law was clearly established. We do not agree. Ill Both the district court and the police officers rely principally upon several Supreme Court cases that address the application of the Fifth Amendment privilege to public employees. See, e.g., Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). These cases provide two rules: If the State presents a person with the “Hobson’s choice” of incriminating himself or suffering a penalty, and he nevertheless refuses to respond, the State cannot constitutionally make good on its threat to penalize him. [Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973) ]; Sanitation Men v. Commissioner of Sanitation, 392 U.S. 280, 284 [88 S.Ct. 1917, 1919, 20 L.Ed.2d 1089] (1968); Gardner v. Broderick, 392 U.S. 278, 277-278 [88 S.Ct. 1913, 1915-1916, 20 L.Ed.2d 1082] (1968). Conversely, if the threatened person decides to talk instead of" }, { "docid": "8400856", "title": "", "text": "Court has pointed out, it is not proper to discharge an officer from duty in order to punish that officer for exercising rights guaranteed to him under the constitution. Gardner v. Broderick, 392 U.S. 273, 276-79, 88 S.Ct. 1913, 1916, 20 L.Ed.2d 1082 (1968); see also Uniformed Sanitation Men Ass’n v. City of New York, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968); Spevak v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967); Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 859 F.2d 276, 280-82 (3rd Cir.1988). Of course, Gardner did not preclude questions that were “specifically, directly, and narrowly” related to the officer’s duty as a policeman and which would not be used to incriminate him. 392 U.S. at 278, 88 S.Ct. at 1916. But, as the Court noted in Uniformed Sanitation Men, the state cannot use the fact of public employment in “an attempt to coerce [employees] to relinquish their constitutional rights.” 392 U.S. at 285, 88 S.Ct. at 1920. There can be little doubt that it was improper for the appellants to discipline Gibson when he refused to allow a search of his garage. II. Liability of Appellants. A. Qualified Immunity. The individual appellants sought immunity from the imposition of liability for their involvement in the administrative search warrant. The district court found that as a matter of law they were not entitled to immunity because the right to be free from administrative searches of the home was then well established. We disagree on two grounds. First, the law was not well established in 1982. Second, the officers relied in good faith on the advice of an assistant city attorney. It is well settled that government officials performing discretionary functions are cloaked with “a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). As the Court went on to say: Somewhat more concretely, whether an" }, { "docid": "1960661", "title": "", "text": "1974, - — ■ U.S. -, .-, 94 S.Ct. 1633, 1640, 40 L. Ed.2d 15 [42 USLW 4513, 4516, Apr. 16, 1974]. See 5 CFR §§ 771.208, 771.210-771.-212, 772.305 (1973). . This proposition is stated explicitly in Justice Frankfurter’s concurring opinion in Hannah v. Larche, 1960, 363 U.S. at 488, and is in part the basis of Justice Douglas’ dissenting opinion in Hannah, at 493 ff. Also see Jenkins v. McKeithen, 1969, 395 U.S. at 427-431. . In Gardner v. Broderick, 1968, 392 U.S. 273, 276, 88 S.Ct. 1913, 1915, 20 L.Ed.2d 1082, the Supreme Court stated: “In that case [Garrity], we held that when a policeman had been compelled to testify by the threat that otherwise he would be removed from office, the testimony that he gave could not be used against him in a subsequent prosecution.” In Uniformed Sanitation Men Ass’n v. Sanitation Comm’r, 1968, 392 U.S. 280, 284, 88 S.Ct. 1917, 1919, 20 L. Ed.2d 1089, the Court commented: “Garrity v. New Jersey, 385 U.S. 493 [87 S.Ct. 616, 17 L.Ed.2d 562] (1967), in which we held that testimony compelled by threat of dismissal from employment could not be used in a criminal prosecution of the witness . . . .” Also see Kalkines v. United States, Ct.C1.1973, 473 F.2d 1391. . Womer, in bis brief, asserts that the U. S. Attorney was conducting a criminal investigation involving the same facts and circumstances. . The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” (Emphasis added.) The privilege against self-incrimination may be invoked in a civil or administrative proceeding, where an appropriate answer to a question might be self-incriminating. In this case, nothing said by Womer could have later been used against him in a criminal proceeding. In fact, so far as we are advised, no effort has been made to use anything said by Womer on November 20 in any subsequent' criminal proceedings. . In Boulware, where the police department summoned certain officers to a departmental hearing concerning alleged criminal wrongdoing, the officers claimed they should" }, { "docid": "8592327", "title": "", "text": "who had invoked the privilege against self-incrimination and refused to testify before a federal grand jury. Plaintiffs were thereafter either suspended or discharged for violating Rule 51. After tracing the development of the law from the Supreme Court’s decision in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), to its decisions in Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968) and Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968), this court held that “Rule 51, to the extent that it denies police officers the privilege against self-incrimination where criminal prosecution may follow, is constitutionally invalid.” 489 F.2d at 895. Where a public employee testifies before a grand jury under the threat that his refusal to testify will result in disciplinary proceedings against him, the use of evidence so obtained against that witness in a subsequent criminal prosecution is improper. “[T]he protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office.” Garrity v. New Jersey, 385 U.S. at 500, 87 S.Ct. at 620. Nor may disciplinary action be taken against the witness for his refusal to testify, unless he is first advised that, consistent with the holding in Garrity, evidence obtained as a result of his testimony will not be used against him in subsequent criminal proceedings. Gardner v. Broderick, supra; Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation, supra. In Confederation of Police, where the plaintiffs were suspended or discharged for refusing to testify after being first advised that anything they said could be used against them in subsequent criminal proceedings, the disciplinary action taken against them was held to be constitutionally infirm under the holdings in Gardner and Sanitation Men: “These discharges were clearly unconstitutional under the rulings of Gardner and Uniformed Sanitation Men. The IAD inquiry was in no sense an ‘accounting of public faith’ as the questions were not ‘specifically, directly, and narrowly’ related to official duties and" }, { "docid": "4239915", "title": "", "text": "this case, we decline to pass upon the merits of the City’s argument. The court below did not explore the question in any depth, and the record before us is almost entirely barren on the issue. Thus, we shall simply assume for purposes of this opinion that the City may be held accountable, in a § 1983 action, for the policies of the Baltimore City Police Department. IV We now turn to the merits. Because the district court dismissed the complaint for failure to state a claim, our review is de novo. Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.1991), cert. denied, 503 U.S. 936, 112 S.Ct. 1475, 117 L.Ed.2d 619 (1992). As noted in our prior opinion, the Supreme Court has decided three relevant cases involving the Fifth Amendment rights of public employees: Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); and Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968). In Garrity, the first case in the sequence, police officers were compelled, under threat of termination, to answer questions regarding allegations that they were involved in “fixing” traffic tickets. 385 U.S. at 494, 87 S.Ct. at 617. The Court held that the officers’ statements, “obtained under threat of removal from office,” could not be used against them in subsequent criminal proceedings. Id. at 500, 87 S.Ct. at 620; see also Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.Ct. 2132, 2135, 53 L.Ed.2d 1 (1977). In Gardner and Uniformed Sanitation Men, the Court faced a somewhat different scenario. There, public employees were interrogated about alleged misconduct on the job; when they refused to surrender the protections of the Fifth Amendment, they were fired. Gardner, 392 U.S. at 274-75, 88 S.Ct. at 1914; Uniformed Sanitation Men, 392 U.S. at 281-82. The Court held that the employees could not constitutionally be given the “Hobson’s choice between self-incrimina tion and forfeiting [their] means of livelihood.” Gardner, 392 U.S. at 277, 88 S.Ct." }, { "docid": "8400855", "title": "", "text": "were required to open up his home whenever there was a reasonable suspicion that evidence may be found there, then officers truly would have watered-down constitutional rights. They, like the rest of the people, must be able to retreat to a safe place free from the prying eyes of even the most well-intentioned employer. While there are numerous times when citizens find themselves in public places and subject to the reasonableness standard, some of which are detailed in Biehunik, and others of which have already been noted by us, that does not mean that the historic integrity of the home should be so easily invaded. We hold that even a police officer’s home cannot be invaded upon facts that would not permit the like invasion of the home of persons who are not police officers. Therefore, the administrative search warrant was improper and enforcement of the warrant would violate Gibson’s rights. By the same token, Gibson could not be disciplined when he refused to allow the appellants to violate his constitutional rights. As the Supreme Court has pointed out, it is not proper to discharge an officer from duty in order to punish that officer for exercising rights guaranteed to him under the constitution. Gardner v. Broderick, 392 U.S. 273, 276-79, 88 S.Ct. 1913, 1916, 20 L.Ed.2d 1082 (1968); see also Uniformed Sanitation Men Ass’n v. City of New York, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968); Spevak v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967); Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 859 F.2d 276, 280-82 (3rd Cir.1988). Of course, Gardner did not preclude questions that were “specifically, directly, and narrowly” related to the officer’s duty as a policeman and which would not be used to incriminate him. 392 U.S. at 278, 88 S.Ct. at 1916. But, as the Court noted in Uniformed Sanitation Men, the state cannot use the fact of public employment in “an attempt to coerce [employees] to relinquish their constitutional rights.” 392 U.S. at 285, 88 S.Ct. at 1920. There can be little doubt" }, { "docid": "8722188", "title": "", "text": "trial does not negate an investigator’s violation of the fifth amendment in the original course of questioning. Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); see also Uniformed Sanitation Men Association v. Commissioner of Sanitation, 392 U.S. 280, 284, 88 S.Ct. 1917, 1919, 20 L.Ed.2d 1089 (1968). However, in this case, as opposed to the cases in Gard- ner and Uniformed Sanitation Men, there was no violation of the fifth amendment in the first instance. In Gardner, the Court held that a state may not discharge a police officer for refusing to waive his fifth amendment right against self-incrimination. The court stated that the great privilege against self-incrimination does not tolerate the attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of the loss of employment. It is clear that petitioner’s testimony was demanded before the grand jury in part so that it might be used to prosecute him, and not solely for the purpose of securing an accounting of his performance of his public trust. If the latter had been the only purpose, there would have been no reason to seek to compel petitioner to waive his immunity- 392 U.S. at 279, 88 S.Ct. at 1916 (emphasis added). In the companion case of Uniformed Sanitation Men, the Court implied that no fifth amendment right would have arisen if the state had not sought to compel waiver of immunity. [I]f New York had demanded that petitioners answer questions specifically, directly, and narrowly relating to the performance of their official duties on pain of dismissal from public employment without requiring relinquishment of the benefits of the constitutional privilege, and if they had refused to do so, this case would be entirely different. In such a case, the employee’s right to immunity as a result of his compelled testimony would not be at stake. 392 U.S. at 284, 88 S.Ct. at 1920. Gardner and Uniformed Sanitation Men are consistent with our holding that Taylor’s right against self-incrimination did not arise because the purpose and result of the examination was" }, { "docid": "13514771", "title": "", "text": "Alford, 973 F.2d 307, 312 (4th Cir.1992)). “Moreover, ‘the manner in which this [clearly established] right applies to the actions of the official must also be apparent.’” Id. (quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.1992)) (citations omitted) (alteration in original). “[I]f there is a ‘legitimate question’ as to whether an official’s conduct constitutes a constitutional violation, the official is entitled to qualified immunity.” Id. (quoting Tarantino v. Baker, 825 F.2d 772, 775 (4th Cir.1987)). We think that this perspective gives a clear view of the qualified immunity issue. B. The Fifth Amendment Rights of Public Employees The Fifth Amendment states that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. CONST, amend. V. The Supreme Court has addressed the Fifth Amendment rights of public employees in the Garrity line of cases. See Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968). See also Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973); Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977). In Garrity, police officers were compelled under the threat of termination to answer incriminating questions in the course of an investigation into traffic-ticket “fixing.” Pri- or to questioning, each officer was warned, in accordance with a state statute, as follows: (1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject to removal from office. Garrity, 385 U.S. at 494, 87 S.Ct. at 617. The officers were not asked to sign a waiver of immunity and there was no immunity statute applicable under the circumstances. The officers answered the questions and some of these answers were used against them in a" }, { "docid": "18167882", "title": "", "text": "of a related criminal prosecution. It has been decided that a state may not impose substantial penalties upon a witness who elects to exercise a fifth amendment privilege against compelled self-incrimination. In Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), police officers under investigation were told that if they declined to answer potentially incriminating questions, they would be removed from office, but that any answers which they did give could be used against them in a criminal prosecution. It was held that statements given under such circumstances were involuntary and could not be used to convict the officers. The court has also held that a state may not discharge an employee for the sole reason of his refusal to waive his fifth amendment rights. Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Uniformed Sanitation Men v. Sanitation Commissioner, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968). See also Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977). Furthermore, a state cannot require, as a precondition to obtaining a public contract, the waiver of fifth amendment rights. Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). A common thread running through these cases is that “a re fusal to waive the fifth amendment privilege, standing alone and without regard to other evidence, resulted in loss of employment or opportunity to contract with the state.” Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). The direct imposition of sanctions against one who asserts the fifth amendment privilege has consistently been held by the Supreme Court to be in violation of the constitution. As in the instant case, these fifth amendment issues frequently arise when parallel criminal, civil or administrative proceedings are pending. In Laman v. Tanzler, 411 F.2d 164 (5th Cir. 1969), cert. den., 396 U.S. 929, 90 S.Ct. 264, 24 L.Ed.2d 227 (1969), a police officer was suspended from the Jacksonville, Florida, Police Department for conduct prejudicial to the “efficiency, good name and reputation” of the" }, { "docid": "21424433", "title": "", "text": "is plenary. See Peterkin v. Jeffes, 855 F.2d 1021, 1026 (8d Cir.1988). II. The fifth amendment to the constitution provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const, amend. V. The FOP urges us to affirm the district court’s ruling on the following grounds: because completion of the application is compelled by the threat of demotion or failure to obtain a promotion, the fifth amendment is violated in three circumstances if the information on the application is self-incriminating, (1) in police department disciplinary proceedings for both lying in the report or substantive offenses uncovered by it; (2) in a prosecution for lying on the questionnaire in violation of the law against unsworn falsifications; (3) in prosecutions for substantive offenses uncovered by the selection process. We note at the outset, and briefly, that this argument presents us with a mixture of plainly erroneous and potentially meritorious but more difficult issues. There can be no question, for instance, that the police department may prosecute officers for lying on the questionnaire in violation of Pennsylvania law. The fifth amendment does not protect a citizen against the consequences of committing perjury. See U.S. ex rel. Annunziato v. Deegan, 440 F.2d 304 (2d Cir.1971) (upholding public employee’s conviction for perjury based upon testimony obtained under threat of discharge). Thus, for example, if a subpoenaed witness lies, he or she may be prosecuted. Even though his or her testimony under a subpoena is compelled, his or her privilege against self-incrimination is not violated. It is also clearly established that the privilege against self-incrimination is not infringed when police officers are disciplined or discharged for failing to “answer questions specifically, directly, and narrowly relating to the performance of their official duties.” Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280, 284, 88 S.Ct. 1917, 1920, 20 L.Ed.2d 1089 (1968); Gardner v. Broderick, 392 U.S. 273, 278, 88 S.Ct. 1913, 1916, 20 L.Ed.2d 1082 (1968). In the fifth amendment context, some courts have found information of the kind sought here to be related to a" }, { "docid": "18167881", "title": "", "text": "refused reinstatement, basing the refusal upon his belief that the appellee had received a fair and thorough personnel hearing. The appellee filed a complaint in which it was alleged that the failure of the hearing examiner to postpone her administrative hearing amounted to an unconstitutional burden upon her right to be free from compelled self-incrimination. The district court agreed, and entered summary judgment for the appellee, holding that the failure of the hearing examiner to postpone the administrative hearing “smacked of an invalid attempt to penalize the exercise of the fifth amendment privilege.” This ruling was made notwithstanding the fact that the ap-pellee had, in fact, asserted her fifth amendment privilege and refrained from testifying. The defendants were ordered to reinstate the appellee or retry the charges in a new administrative hearing. The defendants have appealed from this decision. Before this Court for determination is the question of whether the appellee’s fifth amendment privilege against compelled self-incrimination was unconstitutionally impaired by the refusal of the hearing examiner to postpone the administrative hearing pending the outcome of a related criminal prosecution. It has been decided that a state may not impose substantial penalties upon a witness who elects to exercise a fifth amendment privilege against compelled self-incrimination. In Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), police officers under investigation were told that if they declined to answer potentially incriminating questions, they would be removed from office, but that any answers which they did give could be used against them in a criminal prosecution. It was held that statements given under such circumstances were involuntary and could not be used to convict the officers. The court has also held that a state may not discharge an employee for the sole reason of his refusal to waive his fifth amendment rights. Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Uniformed Sanitation Men v. Sanitation Commissioner, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968). See also Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977). Furthermore," }, { "docid": "17034373", "title": "", "text": "disable him from making a free and rational choice.” 385 U.S. 493, 497, 87 S.Ct. 616, 618, 17 L.Ed.2d 562 (1967) (citation omitted). In Garrity, police officers subject to an internal investigation were told, before being questioned, that anything they said could be used against them and that they had a right to say nothing; but the officers were also told that if they refused “to answer [they] would be subject to removal from office.” Id. at 494, 87 S.Ct. at 617. This conduct, the Court held, is a violation of the Fifth Amendment. Id. at 498, 87 S.Ct. at 619. Later cases explained that Garrity only prohibits the compulsion of testimony that has not been immunized. See Turley, 414 U.S. at 82-83, 94 S.Ct. at 324-25. In other words, the employee may not be both compelled to testify (or make a statement) and be required to waive his Fifth Amendment rights. Gardner v. Broderick, 392 U.S. 273, 276-77, 88 S.Ct. 1913, 1915-16, 20 L.Ed.2d 1082 (1968). An “employee’s rights are imperilled only by the combined risks of both compelling the employee to answer incriminating questions and compelling the employee to waive immunity from the use of those answers.” Arrington v. County of Dallas, 970 F.2d 1441, 1446 (5th Cir.1992). The result of these prohibitions is that a public employee cannot be terminated solely for the exercise of his Fifth Amendment rights. See, e.g., Lefkowitz v. Cunningham, 431 U.S. 801, 804, 97 S.Ct. 2132, 2135, 53 L.Ed.2d 1 (1977); Arrington, 970 F.2d at 1446; Buckner v. City of Highland Park, 901 F.2d 491, 496 (6th Cir.1990); Benjamin v. City of Montgomery, 785 F.2d 959 (11th Cir.1986); Hoover v. Knight, 678 F.2d 578, 580 (5th Cir.1982) (citing Gardner, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082, and Uniformed Sanitation Men v. Sanitation Commissioner of New York, 392 U.S. 280, 88 5.Ct. 1917, 20 L.Ed.2d 1089 [1968]). Considered along with other evidence, however, an adverse inference may be drawn from an employee’s exercise of his Fifth Amendment right to silence. Hoover, 678 F.2d at 582 & n. 1. In this case," }, { "docid": "12684022", "title": "", "text": "without the use of the officer’s compelled statement or any evidence derived from that statement. Both the government and the police officers rely on a line of Supreme Court cases, beginning with Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), that address the application of the Fifth Amendment privilege to public employees and public officers. See, e.g., Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977); Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973); Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280, 284-85, 88 S.Ct. 1917, 1919-20, 20 L.Ed.2d 1089 (1968); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Spevack v. Klein, 385 U.S. 511, 516, 87 S.Ct. 625, 628-29, 17 L.Ed.2d 574 (1967). Justice Powell, sitting by designation with the Fourth Circuit, recently articulated the import of the Garrity line of cases: “ ‘If the State presents a person with the “Hobson’s choice” of incriminating himself or suffering a penalty, and he nevertheless refuses to respond, the State cannot constitutionally make good on its threat to penalize him.’” Wiley v. Doory, 14 F.3d 993, 996 (4th Cir.1994) (quoting Minnesota v. Murphy, 465 U.S. 420, 443, 104 S.Ct. 1136, 1151, 79 L.Ed.2d 409 (1984) (Marshall, J., dissenting)); see Turley, 414 U.S. at 77, 94 S.Ct. at 322; Sanitation Men, 392 U.S. at 284, 88 S.Ct. at 1919-20; Gardner, 392 U.S. at 277-78, 88 S.Ct. at 1915-16. “ ‘Conversely, if the threatened person decides to talk instead of asserting his privilege, the State cannot use his admissions against him in a subsequent criminal prosecution.’” Wiley, 14 F.3d at 996 (quoting Murphy, 465 U.S. at 443, 104 S.Ct. at 1151 (Marshall, J., dissenting)); see Garrity, 385 U.S. at 500, 87 S.Ct. at 620. In a case such as this, therefore, the Fifth Amendment operates to restrict the government’s conduct in two ways. First, a statement may not be obtained in violation of the Constitution. Thus, the State may not insist that public employees “waive their Fifth Amendment, privilege against" }, { "docid": "8592326", "title": "", "text": "four tavern owners and that he remembered doing so. We find the circumstantial evidence here substantially greater than that presented in United States v. Clizer, 464 F.2d 121 at 125 (9th Cir. 1971), and viewed in the light most favorable to the appellee, sufficient to prove beyond a reasonable doubt that at the time defendant testified before the grand jury he knew his testimony to be false. CHICAGO POLICE DEPARTMENT RULE 51 Approximately one week before oral argument in the instant appeal, this court decided Confederation of Police, et al. v. Conlisk, et al., 489 F.2d 891 (7th Cir. 1973), holding Chicago Police Department Rule 51 unconstitutional. Rule 51 prohibited Chicago police officers from: “Failing to give evidence before the Grand Jury . . . when properly called upon to do so, or refusing to testify on the grounds that such testimony might incriminate the member, or refusing to sign a waiver of immunity when requested to do so by a superior officer.” Each of the plaintiffs in Confederation of Police was a police officer who had invoked the privilege against self-incrimination and refused to testify before a federal grand jury. Plaintiffs were thereafter either suspended or discharged for violating Rule 51. After tracing the development of the law from the Supreme Court’s decision in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), to its decisions in Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968) and Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968), this court held that “Rule 51, to the extent that it denies police officers the privilege against self-incrimination where criminal prosecution may follow, is constitutionally invalid.” 489 F.2d at 895. Where a public employee testifies before a grand jury under the threat that his refusal to testify will result in disciplinary proceedings against him, the use of evidence so obtained against that witness in a subsequent criminal prosecution is improper. “[T]he protection of the individual under the Fourteenth Amendment against coerced statements prohibits use" }, { "docid": "3566709", "title": "", "text": "waive the self-incrimination privilege. Id. (citing Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968)). Nor, continued the Second Circuit, could he have been punished because he invoked the privilege against self-incrimination. See Slochower v. Board of Higher Educ., 350 U.S. 551, 558-59, 76 S.Ct. 637, 641, 100 L.Ed. 692 (1956) (holding that city may not discharge a teacher because the teacher invoked the Fifth Amendment before a congressional committee). Nevertheless, held the Second Circuit, there are circumstances in which adverse actions may be taken upon a person’s refusal, on Fifth Amendment grounds, to answer questions pertinent to the exercise of state authority. In support of that assertion, Judge Newman, writing for the en banc court, noted that, in Gardner, which held unconstitutional the discharge of a police officer, the Supreme Court carefully noted that he had been discharged “ ‘not for failure to answer relevant questions about his official duties, but for a refusal to waive a constitutional right.’ ” Asherman, 957 F.2d at 982 (quoting Gardner, 392 U.S. at 278, 88 S.Ct. at 1916). He also noted that, in Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968), the workers “ ‘were discharged not merely for refusal to account for their conduct as employees of the city. They were dismissed for invoking and refusing to waive their constitutional right against self-incrimination.’ ” Asherman, 957 F.2d at 982 (quoting Sanitation Men, 392 U.S. at 283, 88 S.Ct. at 1919). On the basis of these cases, Judge Newman concluded: What clearly emerges from these decisions is both a limit and a grant of power with respect to governmental inquiries. Public agencies may not impair the privilege against self-incrimination by compelling incriminating answers, or by requiring a waiver of immunity, or even by asking incriminating questions in conjunction with an explicit threat to use the answers in criminal proceedings. But public agencies retain the authority to ask questions relevant to their public responsibilities and to take adverse action against those whose refusal to answer impedes the discharge" }, { "docid": "1454934", "title": "", "text": "635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); see James, 606 F.3d at 652. This case does not fit neatly into any previous category of Fourth Amendment law. This is best demonstrated by the fact that no party provided any prior case law analogous to this situation. Moreover, until today, this court had not extended Winsor beyond situations where police demand entrance. In attempting to demonstrate that the right allegedly violated was clearly established at the time of Chief Wells’s order, Delia cites several cases. These cases include this court’s prior decision in Los Angeles Police Protective League v. Gates, 907 F.2d 879 (9th Cir.1990), as well as the Supreme Court’s decisions in Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968) and Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968). A review of these decisions, however, does not demonstrate that Chief Wells’s order violated a clearly established right. Both Supreme Court decisions concern municipal employees who were questioned about corruption in then’ agencies. In Gardner, the plaintiff, a police officer, was subpoenaed to appear before a New York County grand jury that was investigating bribery and corruption of police officers in connection with gambling operations. Gardner, 392 U.S. at 274, 88 S.Ct. 1913. Although he was informed of his privilege against self-incrimination, the police officer was told that he would be fired if he did not sign a waiver of immunity. Id. After he refused to sign the waiver, he was fired. Id. at 274-75, 88 S.Ct. 1913. The Court held that the plaintiff was discharged “not for failure to answer relevant questions about his official duties, but for refusal to waive a constitutional right.... He was dismissed solely for his refusal to waive the immunity to which he is entitled if he is required to testify despite his constitutional privilege.” Id. at 278, 88 S.Ct. 1913. The Court reached an identical conclusion in Uniformed Sanitation Men, decided the same day as Gardner. In Uniformed Sanitation Men, fifteen sanitation workers were summoned to" }, { "docid": "17533774", "title": "", "text": "been found guilty is to penalize him for refusing to incriminate himself.” 905 F.2d at 626. However, the penalty cases have all involved some kind of loss or reduction from the status quo. For, example, the “sanction” threatened has been in the nature of revocation of probation, see, e.g., Murphy, 465 U.S. at 438, 104 S.Ct. 1136 (a state may not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege), or dismissal from employment, see, e.g., Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation, 392 U.S. 280, 283, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968) (public employees may not be dismissed for refusing to waive their constitutional right against self-incrimination); Gardner v. Broderick, 392 U.S. 273, 278, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968) (police officer may not be discharged for refusal to waive immunity); Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) (police officer’s testimony given under threat of discharge for not answering questions may not be used in subsequent prosecution); Cunningham, 431 U.S. at 807, 97 S.Ct. 2132 (finding unconstitutional a state statute providing that if a political party officer who is subpoenaed by a grand jury to testify concerning the conduct of his office refused either to testify or to waive immunity, his term, of office will terminate). A defendant facing a particular sentence, however, with the option of obtaining a lower sentence if he or she waives the Fifth Amendment privilege is not presented with the same “negative” sanction as presented in the penalty cases. We acknowledge that the benefit/penalty distinction is not entirely satisfactory, cf. Oliveras, 905 F.2d at 627-28, and there may well be instances where we would not find it controlling. However, a similar distinction was recognized by this Court in pre-Guide-lines sentencing cases where the Court had to determine whether the sentencing judge simply took into account as a mitigating factor the defendant’s voluntary cooperation with the authorities or impermissibly increased the sentence based on the defendant’s refusal to cooperate. See, e.g., United States v. Bradford," }, { "docid": "21596104", "title": "", "text": "agree. Ill Both the district court and the police officers rely principally upon several Supreme Court cases that address the application of the Fifth Amendment privilege to public employees. See, e.g., Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). These cases provide two rules: If the State presents a person with the “Hobson’s choice” of incriminating himself or suffering a penalty, and he nevertheless refuses to respond, the State cannot constitutionally make good on its threat to penalize him. [Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973) ]; Sanitation Men v. Commissioner of Sanitation, 392 U.S. 280, 284 [88 S.Ct. 1917, 1919, 20 L.Ed.2d 1089] (1968); Gardner v. Broderick, 392 U.S. 278, 277-278 [88 S.Ct. 1913, 1915-1916, 20 L.Ed.2d 1082] (1968). Conversely, if the threatened person decides to talk instead of asserting his privilege, the State cannot use his admissions against him in a subsequent criminal prosecution. Garrity v. New Jersey, 385 U.S. 493, 500 [87 S.Ct. 616, 620,17 L.Ed.2d 562] (1967). Minnesota v. Murphy, 465 U.S. 420, 443, 104 S.Ct. 1136, 1151, 79 L.Ed.2d 409 (1984) (Marshall, J., dissenting). This case, however, is not directly controlled by either of these two rules. The officers did not assert their Fifth Amendment privilege nor were they disciplined for doing so. And, although it is alleged that the officers made statements under the threat of job loss, these statements were not used against them in any criminal proceeding. Therefore, contrary to the district court’s conclusion, the Gardner-Garrity line of Supreme Court cases does not clearly establish the law governing the facts of this case. Indeed, although the issue here was not squarely presented in any of the Supreme Court cases upon which the police officers rely, language in these cases suggests that the right against self-incrimination is not violated by the mere compulsion of statements, without a compelled" }, { "docid": "21424434", "title": "", "text": "lying on the questionnaire in violation of Pennsylvania law. The fifth amendment does not protect a citizen against the consequences of committing perjury. See U.S. ex rel. Annunziato v. Deegan, 440 F.2d 304 (2d Cir.1971) (upholding public employee’s conviction for perjury based upon testimony obtained under threat of discharge). Thus, for example, if a subpoenaed witness lies, he or she may be prosecuted. Even though his or her testimony under a subpoena is compelled, his or her privilege against self-incrimination is not violated. It is also clearly established that the privilege against self-incrimination is not infringed when police officers are disciplined or discharged for failing to “answer questions specifically, directly, and narrowly relating to the performance of their official duties.” Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280, 284, 88 S.Ct. 1917, 1920, 20 L.Ed.2d 1089 (1968); Gardner v. Broderick, 392 U.S. 273, 278, 88 S.Ct. 1913, 1916, 20 L.Ed.2d 1082 (1968). In the fifth amendment context, some courts have found information of the kind sought here to be related to a police officer’s work. Cf. O’Brien v. DiGrazia, 544 F.2d 543, 546 (1st Cir.1976) (questions about police officer's finances are job-related), cert. denied sub nom. O’Brien v. Jordan, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977); but cf. Confederation of Police v. Conlisk, 489 F.2d 891, 895 (7th Cir 1973) (questions concerning whether police officer invoked the privilege against self-incrimination at a grand jury hearing are not job-related), cert. denied sub nom. Rochford v. Confederation of Police, 416 U.S. 956, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974). In FOP I, in the context of determining whether the questions unconstitutionally intrude on a police officer’s privacy, we held that, except for Question 30, concerning membership in organizations, all the questions are relevant to employment in the SIU. See FOP I, 812 F.2d at 114-16. The FOP on this appeal does not argue that the questions are unrelated to an officer’s duties, so that we need not take this point further. A final question, and the most difficult one posed by the parties’ briefs, is whether" } ]

[ { "docid": "343835", "title": "", "text": "longer duration (one year versus 90 days.) (Tr. at 318.) . Plaintiff’s reliance on SSE’s actual financial results for 1993 and 1994 to cast doubt on defendant’s appraisal must be similarly rejected. Although the Federal Circuit in Krapf v. United States, 977 F.2d 1454, 1459 (Fed.Cir.1992), held that post-valuation date transactions may provide a \"parameter or give rise to an inference of the earlier value,” and should not be absolutely barred from consideration, consideration of post-valuation financial results here would be improper. As the government points out, \"if such a technique were accepted, there would be little need to resort to the courts in valuation cases. The mere passage of time, together with the accumulation of post-valuation date data, would convert the valuation process form an inexact science to an exact science.\" Estate of Gillet v. Commissioner, 50 T.C.M. (CCH) 636, 645, 1985 WL 15056 (1985). . \"Credible evidence\" is defined by the RRA 1998's legislative history as the “quality of evidence which, after critical analysis, the court would find sufficient upon which to base a decision on the issue if no contrary evidence were submitted (without regard to the judicial presumption of IRS correctness).” H.R.Conf.Rep. No. 105-599, at 240-41 (1998), 1998-3 C.B. 747, at 994-95. . Under the Act, four conditions must be met before the burden of proof shifts to the IRS: (1) the taxpayer must comply with the requirements of the Code and applicable regulations promulgated thereunder to substantiate any item; (2) the taxpayer must maintain records; (3) the taxpayer must comply with reasonable requests made by the Secretary for meetings, interviews, witnesses, information, and documents, and must first exhaust all administrative remedies; (4) taxpayers other than individuals or estates must meet the net worth requirements for awarding attorneys fees. 26 U.S.C. § 7491(a)(2). In coming to a determination whether these conditions have been met, \"[t]he taxpayer has the burden of proving that it meets each of these conditions, because they are necessary prerequisites to establishing that the burden of proof is on the Secretary.” H.R.Conf.Rep. No. 105-599, at 240-41 (1998), 1998-3 C.B. 747, at 994-95. Although" } ]

[ { "docid": "14211921", "title": "", "text": "statute de novo. See, e.g., Lee v. Ernst & Young, LLP, 294 F.3d 969, 974 (8th Cir.2002) (“We review the district court’s interpretation of a federal statute de novo.”). In interpreting the term “credible evidence” in § 7491(a)(1), we adopt the definition suggested by the Commissioner, which is sensible, consistent with the law’s underlying purpose, and derived from the legislative history. See Lee v. Ernst & Young, LLP, 294 F.3d at 976 (when the meaning of a statute is questionable, courts should give it a construction that is sensible and comports with the conditions and purposes of its enactment). Accordingly, we hold that “credible evidence,” for purposes of interpreting and applying § 7491(a)(1), is “the quality of evidence which, after critical analysis, the court would find sufficient upon which to base a decision on the issue if no contrary evidence were submitted (without regard to the judicial presumption of IRS correctness).” Brief for Appellee at 22 (emphasis added); accord Okerlund v. United States, 53 Fed. Cl. 341, 356 n. 23 (Fed.Cl.2002) (adopting same definition based upon legislative history). Viewing Robert Griffin’s testimony in the absence of any evidence or presumptions to the contrary, we conclude that appellants did produce sufficient “credible evidence” to support their personal deductions of the real property tax payments at issue. We therefore hold that the tax court erred in failing to shift to the Commissioner the burden to prove the non-applicability of the Lohrke exception in the present ease. Cf. Capital Video Corp. v. Comm’r, 311 F.3d 458, 465-66 (1st Cir.2002) (holding that the burden of proof did not shift to the Commissioner where the taxpayer presented no evidence linking the pajunents in question to the promotion of the taxpayer’s business). Our application of 26 U.S.C. § 7491(a) in the present case does not resolve the merits of the deficiency issues. On the record before us, we cannot determine whether the Commissioner has met his burden of proof. It is not sufficient to summarily conclude that the outcome is the same regardless of who bears the burden of proof; if that were the case, §" }, { "docid": "22955470", "title": "", "text": "1.6001-l(a), Income Tax Regs. In addition, the taxpayer bears the burden of substantiating the amount and purpose of the claimed deduction. See Hradesky v. Commissioner, 65 T.C. 87, 90 (1975), affd. per curiam 540 F.2d 821 (5th Cir. 1976). Section 7491(a), a new provision created by Internal Revenue Service Restructuring and Reform Act of 1998 (RRA 1998), Pub. L. 105-206, sec. 3001, 112 Stat. 685, 726, places the burden of proof on respondent with regard to certain factual issues. Section 7491 applies to examinations commenced after July 22, 1998. See RRA 1998 sec. 3001(c), 112 Stat. 727. The examination in the instant case commenced after July 22, 1998; accordingly, we evaluate whether respondent bears the burden of proof pursuant to section 7491(a). Section 7491(a)(1) provides that if, in any court proceeding, the taxpayer introduces credible evidence with respect to factual issues relevant to ascertaining the taxpayer’s liability for a tax (under subtitle A or B), the burden of proof with respect to such factual issues will be placed on the Commis sioner. For the burden to be placed on the Commissioner, however, the taxpayer must comply with the substantiation and record-keeping requirements of the Internal Revenue Code. See sec. 7491(a)(2)(A) and (B). In addition, section 7491(a) requires that the taxpayer cooperate with reasonable requests by the Commissioner for “witnesses, information, documents, meetings, and interviews”. Sec. 7491(a)(2)(B). Finally, the benefits of section 7491(a) are unavailable in the cases of partnerships, corporations, and trusts unless the taxpayer meets the net worth requirements of section 7430(c)(4)(A)(ii). See sec. 7491(a)(2)(C). ' Respondent argues that because petitioners have failed to meet the requirements of section 7491(a)(1) and (2), the burden of proof should remain with petitioners as to the remaining issue associated with respondent’s determination of petitioners’ 1996 tax liability. We therefore examine the evidence to establish whether petitioners have presented credible evidence and have met the other requirements of section 7491(a)(1) and (2) so as to place the burden of proof on respondent. A. Casualty Losses Pursuant to section 165(a) and (c)(3), a taxpayer is allowed a deduction for an uncompensated loss that arises" }, { "docid": "15489579", "title": "", "text": "taxpayer to establish that requirements of I.R.C. § 7491 have been met). Although plaintiffs assert in their complaints that “Defendant bears the burden of proof with respect to any issue set forth in the FPAA pursuant to Code Section 7491,” Compl. H 7(c)(ii), Stobie Creek Invs., No. 05-748T; Compl. 117(c)(ii), Stobie Creek Invs., No. 07-520T, they stop short of establishing the prerequisites for invoking I.R.C. § 7491. Plaintiffs’ pretrial brief setting forth their contentions of fact and law makes no mention of I.R.C. § 7491, and plaintiffs did not adduce evidence in recognition of the burden-shifting effect of I.R.C. § 7491. Plaintiffs’ counsel only mentioned I.R.C. § 7491 during closing arguments, at which time defense counsel questioned whether plaintiffs could qualify under the statute, as well as surmised that the result would be the same based on the weight of the evidence. Given the dearth of argument on the subject and the failure of plaintiffs to demonstrate that they have satisfied the prerequisites for shifting the burden under I.R.C § 7491(a)(2), the court rules that the burden of proof remains with plaintiffs to establish their entitlement to a refund of taxes. III. Compliance with the Internal Revenue Code Defendant has asserted that plaintiffs’ transactions and reporting do not comply with the Code’s basis rules for partnerships in the first instance and that Treasury Regulation § 1.752-6 (2005), retroactively applied to transactions occurring after October 19, 1999, precludes the claimed basis increase on the Therma-Tru stock. These arguments are addressed in turn. 1. The Code and the Helmer doctrine The United States Court of Appeals for the Federal Circuit charted in Coltec Industries Inc. v. United States, 454 F.3d 1340, 1347 (Fed.Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 1261, 167 L.Ed.2d 76 (2007), that the first issue to address is whether the partnership’s transactions and reporting were in literal compliance with the Internal Revenue Code. A review of the transactions to be scrutinized provides the context for this analysis. As discussed more fully in the recitation of facts, beginning in March 2000, the Welles family members and their investment entities" }, { "docid": "23615435", "title": "", "text": "of production of evidence of taxpayer negligence with respect of penalties is now on the Commissioner. See I.R.C. § 7491(c). However, since this case precedes the effective date of § 7491(c), the burden of production of evidence of lack of negligence remains with the taxpayer. See Act of July 22, 1998, Pub.L. No. 105-206, § 3001(a), 112 Stat. 726. The process prior to the amendments following imposition of the penalty consisted of the taxpayer contesting the penalty in Tax Court before paying the penalties; at Tax Court, the taxpayer carried the burden to demonstrate reasonable cause for the underpayment. . The Hansens' 1991 return is subject to Treas. Reg. § 1.6664-4 as it existed on April 1,1995. See Treas. Reg. § 1.6664-1 (b)(2)(i). . There is no evidence in the record to suggest that either the Hansens’ discussions with other partners or their reviews of independent magazines prior to investing concerned tax advice. . The Hansens claim the Tax Court clearly erred in not finding Bales either controlling or evidence of reasonable cause by pointing to numerous similarities between the partnerships at issue in Bales and the partnerships of which they were members. . The Tax Court's discussion of Bales in this case is identical to its discussion of Bales in Mortensen. Compare Mortensen v. Commissioner, 88 T.C.M. (CCH) 278, 252-53 (2004), with Hansen v. Commissioner, T.C.M. (RIA) 2004-269 (2004). .Furthermore, the record shows that the Hansens continued to receive notices from the IRS that they planned to audit the partnerships, even after the Bales decision. In fact, as noted above, prior to filing their 1991 tax return, the Hansens had received eight notices informing them the IRS was beginning an examination of various Hoyt partnerships in which they had been involved." }, { "docid": "19184894", "title": "", "text": "be sued at all without the consent of Congress.” Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983). For income tax refund actions, Congress has waived sovereign immunity. See 28 U.S.C. § 1346(a)(1); Monti v. United States, 223 F.3d 76, 78 (2d Cir.2000). In a tax refund lawsuit, “it is incumbent upon the claimant[s] to show that the United States has money which belongs to [them].” Lewis v. Reynolds, 284 U.S. 281, 283, 52 S.Ct. 145, 76 L.Ed. 293 (1932) (citations and internal quotation marks omitted). “[T]he burden of proof is on the taxpayers] to prove an overpayment of tax, and the amount [they are] entitled to recover.” Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.1993) (internal citations omitted) (emphasis added). IRS tax assessments are presumptively correct, “and the taxpayer who sues for a refund has the burden of persuading the factfinder by a preponderance of the evidence that the assessment is not correct.” Apollo Fuel Oil v. United States, 195 F.3d 74, 76 (2d Cir.1999). Pursuant to the IRS Restructuring and Reform Act of 1998, I.R.C. § 7491(a), the burden of proof shifts to the Government “with respect to any factual issue related to a taxpayer’s tax liability if they maintained adequate records, satisfied applicable substantiation requirements, cooperated with [the IRS], and introduced during the court proceeding credible evidence on the factual issues.” Gutierrez v. Comm’r, T.C. Memo. 2003-321, 2003 WL 22725296, at *2 (T.C. Nov. 20, 2003); see also Thompson v. Comm’r, 499 F.3d 129, 133 (2d Cir.2007). If these requirements are not satisfied, the burden remains on the taxpayer. Gutierrez, 2003 WL 22725296, at *2; Prince v. Comm’r, T.C. Memo. 2003-247, 2003 WL 21957994, at *2 (T.C. Aug. 18, 2003). II. Plaintiffs Are Not Entitled to a Tax Refund For Their Amended Schedule C Deductions. The disputed expenses in plaintiffs’ Amended Schedule C fall into three cate gories: (1) office expenses (Line 18); (2) repair and maintenance expenses (Line 21); and (3) other expenses (Line 27). Plaintiffs are not entitled" }, { "docid": "16772416", "title": "", "text": "returns, uncorroborated oral testimony, or self-serving statements.” Mays v. United States, 763 F.2d 1295, 1297 (11th Cir.1985) (citations omitted); Morse v. United States, No. 94-CV-0619 (SMG), 1997 WL 842416, at *2 (E.D.N.Y. Dec.31, 1997); Burke v. United States, Civ. No. H—85-242 (MJB), 1988 WL 68048, at *1 (D.Conn. Mar.22, 1988). However, tax returns may be accepted provided they are supported by an “evidentiary foundation laid through a competent witness, as prima facie evidence of [the taxpayer’s] taxable income.” Zeeman v. United States, 275 F.Supp. 235, 256 (S.D.N.Y.1967). Such a foundation is required because “standing by itself, the return is merely self-serving hearsay if offered on behalf of the taxpayer or an admission if offered against [it].” Id. at n. 8 (citing Greenbaum v. United States, 80 F.2d 113, 125 (9th Cir.1935)); see also Hoopengarner v. Comm’r, 86 T.C.M. (CCH) 723, 2003 WL 22962501, at *4 (T.C.2003) (“A tax return is merely a statement of the taxpayer’s claim and does not establish the truth of the matters set forth therein.”). A sufficient foundation may be provided through the “testimony of a qualified accountant who prepared the return and was familiar with the taxpayer’s books and records and sources of income, where the books and records [are] available in court as a basis for cross-examination.” Zeeman, 275 F.Supp. at 256 n. 8 (citing Rubin v. Comm’r., 252 F.2d 243 (5th Cir.1958)). Additionally, “upon a proper foundation, corporate tax returns fall within the business records exception to the hearsay rule,” and may “constitute[] admissible evidence to substantiate that a taxpayer is entitled to claim the deductions listed therein, or that the taxpayer reported its income and other items accurately.” United States v. Official Comm. of Unsecured Creditors (In re Indus. Commercial Elec., Inc.), 319 B.R. 35, 54 (D.Mass.2005). In some instances, the burden of proof on an issue may be shifted to the IRS. Internal Revenue Code § 7491(a) provides, in pertinent part: Burden shifts where taxpayer produces credible evidence.— (1) General rule. — If, in any court proceeding, a taxpayer introduces credible evidence with respect to any factual issue relevant to ascertaining" }, { "docid": "9644881", "title": "", "text": "respondent’s expert witness to view the lake property. Petitioners contend that they had no control over Mrs. Gallagher and that in any event section 7491(a)(2)(B) imposes a cooperation requirement on taxpayers only during the examination process. A taxpayer bears the burden of proving that he or she has met the requirements of section 7491(a). See Richardson v. Commissioner, T.C. Memo. 2005-143; H. Conf. Rept. 105—599, at 239 (1998), 1998-3 C.B. 747, 993. The legislative history underlying section 7491(a) states in pertinent part: the taxpayer must cooperate with reasonable requests by the Secretary for meetings, interviews, witnesses, information, and documents (including providing, within a reasonable period of time, access to and inspection of witnesses, information, and documents within the control of the taxpayer, as reasonably requested by the Secretary). Cooperation also includes providing reasonable assistance to the Secretary in obtaining access to and inspection of witnesses, information, or documents not within the control of the taxpayer (including any witnesses, information, or documents located in foreign countries). * * * [H. Conf. Rept. 105-599, supra at 240, 1998-3 C.B. at 994.] We first observe that petitioners’ contention that the section 7491(a)(2)(B) requirement of cooperation extends only through the examination of their return is meritless. For purposes of section 7491(a)(2)(B), the requirement of cooperation continues through the pretrial proceedings in the Tax Court. See, e.g., Connors v. Commissioner, 277 Fed. Appx. 122 (2d Cir. 2008), affg. T.C. Memo. 2006-239; Yearout Mech. & Engg., Inc. v. Commissioner, T.C. Memo. 2008-217; Krohn v. Commissioner, T.C. Memo. 2005-145; Lopez v. Commissioner, T.C. Memo. 2003-142, affd. on this issue 116 Fed. Appx. 546 (5th Cir. 2004). We likewise are not persuaded that petitioners have met their burden of proving that they fully cooperated with respondent’s reasonable requests during the pretrial phase. The parties stipulated in pertinent part that after respondent’s counsel informed petitioners’ counsel that Mrs. Gallagher had denied respondent’s request for access to the lake property, “Petitioners’ counsel subsequently advised Respondent’s counsel that no arrangements could be made by the Petitioners to have Respondent’s expert witness see the Property.” What is lacking in this record is" }, { "docid": "19008974", "title": "", "text": "the ultimate burden of proof in tax cases. See Welch v. Helvering, 290 U.S. Ill, 115, 54 S.Ct. 8, 78 L.Ed. 212 (1933); Woodall v. Comm’r, 964 F.2d 361, 363 (5th Cir.1992) (“A taxpayer challenging the IRS’s disallowance of a deduction bears the burden of proof.”). It is well settled that “an income tax deduction is a matter of legislative grace and that the burden of clearly showing the right to the claimed deduction is on the taxpayer.” INDOPCO, Inc. v. Comm’r, 503 U.S. 79, 84, 112 S.Ct. 1039, 117 L.Ed.2d 226 (1992) (quoting Interstate Transit Lines v. Comm’r, 319 U.S. 590, 593, 63 S.Ct. 1279, 87 L.Ed. 1607 (1943)). Section 7491 shifts the burden of proof to the Government on any factual issue relevant to ascertaining the liability of a taxpayer if the taxpayer: (1) introduces credible evidence on disputed facts; (2) complies with the Internal Revenue Code’s substantiation and record maintenance requirements; (3) cooperates with reasonable requests from the IRS for witnesses, information, documents, meetings, and interviews; and (4) in the case of a partnership, has a net worth below $7 million on the date suit is filed. 26 U.S.C. § 7491(a) (emphasis added). Congress imposed the burden on the taxpayer of establishing that these four requirements of Section 7491(a)(2) have been met. See S. Rep. No. 105-174, at 45 (1998) (“The taxpayer has the burden of proving that it meets each of these conditions, because they are necessary prerequisites to establishing that the burden of proof is on the Secretary.”). The burden of proof does not shift on any matters the Court concludes are legal matters rather than factual issues. Jade Trading, LLC v. United States, 80 Fed.Cl. 11, 47 (2007). i. Plaintiffs Credible Evidence on Disputed Facts The legislative history of Section 7491 defines “credible evidence” as “the quality of evidence which, after critical analysis, the court would find sufficient upon which to base a decision on the issue if no contrary evidence were submitted (without regard to the judicial presumption of IRS correctness).” S. Rep. No. 105-174, 1998 WL 197371, at *45. Additionally, “[a] taxpayer" }, { "docid": "15489577", "title": "", "text": "pursuant to I.R.C. § 754. These matters relate to partnership items that properly are addressed in a partnership-level proceeding over which the Court of Federal Claims has jurisdiction. Accord Jade Trading, LLC v. United States, 80 Fed.Cl. 11, 43 (2007), appeal docketed, No. 08- 5045 (Fed.Cir. Feb. 26, 2008); Nussdorf v. Comm’r, 129 T.C. 30, 44, 2007 WL 2330800 (2007). II. Standard of review Plaintiffs seek a refund of taxes assessed and paid for the 2000 tax year and the 2000 stub tax year. “In a refund suit the question of overpayment involves two elements: (1) has there been an overpayment and (2) if so, how much.” Fisher v. United States, 80 F.3d 1576, 1580 (Fed.Cir.1996). The court tries factual issues de novo in tax refund suits; no weight is given to the factual findings made by the IRS during administrative proceedings. See George E. Warren Corp. v. United States, 135 Ct.Cl. 305, 141 F.Supp. 935, 940 (Ct.Cl.1956) (“The tax laws contemplate a trial de novo____”); see also Litman v. United States, 78 Fed.Cl. 90, 107 (2007). Generally, in a tax refund suit, “the taxpayer bears the burden of establishing the right to a refund.” Abrahamsen v. United States, 228 F.3d 1360, 1364 (Fed.Cir.2000); see also Helvering v. Taylor, 293 U.S. 507, 514, 55 S.Ct. 287, 79 L.Ed. 623 (1935); Litman, 78 Fed.Cl. at 107 (“ ‘[I]n a refund suit the assessment made by the Service is presumed to be correct and this places an obligation on the taxpayer to come forward with evidence to rebut the presumption.’ ” (quoting Cook v. United States, 46 Fed.Cl. 110, 113 (2000))). However, under I.R.C. § 7491, “[i]f, in any court proceeding, a taxpayer introduces credible evidence with respect to any factual issue relevant to ascertaining the liability of the taxpayer for any tax imposed by subtitle A or B, the Secretary shall have the burden of proof with respect to such issue,” provided that the taxpayer establishes the enumerated prerequisites. I.R.C. § 7491(a)(l)-(2); see also Long Term Capital Holdings v. United States, 330 F.Supp.2d 122, 166 (D.Conn.2004) (noting burden of proof on" }, { "docid": "5613434", "title": "", "text": "invest. . Although Mr. Van Scoten testified at- trial that \"I believe the first year we invested” was 1990, the Tax Court found, and the record reveals, that the investment was in fact made in January 1991. . Partnerships like the DSBS 87-C were actually supposed to earn a profit by raising a herd of female breeding cows whereas the borrow-a-bull partnerships were supposed to earn a profit by leasing bulls to third-party ranchers. See Durham Farms # 1, 79 T.C.M. (CCH) 2009, 2000 WL 640678, aff'd, 59 Fed. Appx. 952 (9th Cir.2003). The record provides no indication that the Van Seotens were aware that they joined a partnership that operated on a different business model than the borrow-a-bull partnership recommended by Edward. . As part of the Tax Reform Act of 1986, 26 U.S.C § 469 was enacted. Section 469 was intended to limit the financial incentive to structure traditional tax shelters. Prior to this enactment, taxpayers could use passive activity losses to offset non-passive activity income, thereby sheltering active income from taxation. Now, however, § 469 generally prohibits the deduction of passive activity losses, -except insofar as the losses are used to offset passive activity income. Section 469(c)(1) defines a passive activity as \"any activity.(A) which involves the conduct of any trade or business, and (B) in which the taxpayer does not materially participate.” As used here, the term \"material participation” connotes a determination of whether, based on all the facts and circumstances, a taxpayer participates in the activity on a regular, continuous, and substantial basis during the taxable year. See Temp. Treas. Reg. § 1.469-5T(a)(7). In order to qualify, the taxpayer must first show that he participated in the activity for more that 100 hours during the tax year. See id. § 1.469 — 5T(b)(2)(iii). Regulation 1.469 — 5T(f)(2)(ii) defines investors' activities that are not considered in meeting the hourly requirement. . While I.R.C. § 7491 shifts the burden of production and/or proof to the Commissioner in certain circumstances, § 7491 does not apply here because the Commissioners examination of the Van Scotens’ 1991 return did not" }, { "docid": "9644882", "title": "", "text": "1998-3 C.B. at 994.] We first observe that petitioners’ contention that the section 7491(a)(2)(B) requirement of cooperation extends only through the examination of their return is meritless. For purposes of section 7491(a)(2)(B), the requirement of cooperation continues through the pretrial proceedings in the Tax Court. See, e.g., Connors v. Commissioner, 277 Fed. Appx. 122 (2d Cir. 2008), affg. T.C. Memo. 2006-239; Yearout Mech. & Engg., Inc. v. Commissioner, T.C. Memo. 2008-217; Krohn v. Commissioner, T.C. Memo. 2005-145; Lopez v. Commissioner, T.C. Memo. 2003-142, affd. on this issue 116 Fed. Appx. 546 (5th Cir. 2004). We likewise are not persuaded that petitioners have met their burden of proving that they fully cooperated with respondent’s reasonable requests during the pretrial phase. The parties stipulated in pertinent part that after respondent’s counsel informed petitioners’ counsel that Mrs. Gallagher had denied respondent’s request for access to the lake property, “Petitioners’ counsel subsequently advised Respondent’s counsel that no arrangements could be made by the Petitioners to have Respondent’s expert witness see the Property.” What is lacking in this record is any evidence of what effort, if any, petitioners undertook to assist in securing Mrs. Gallagher’s cooperation to permit respondent’s expert to visit the lake property. As reflected in the legislative history, Congress intended that the duty of cooperation extend to “providing reasonable assistance to the Secretary in obtaining access to and inspection of * * * information * * * not within the control of the taxpayer”. Petitioners offered no testimony concerning their efforts to obtain Mrs. Gallagher’s cooperation, stating only that they had a good relationship with her. Mrs. Gallagher did not testify. In view of this evidentiary vacuum, petitioners have failed to show what “reasonable assistance” they offered, if any, with respect to respondent’s effort to obtain access to information from a person not within petitioners’ control. As a result, they have not satisfied the cooperation requirement of section 7491(a)(2)(B). Accordingly, we hold that section 7491(a) is inapplicable. Since the condition of the lake property permeates all factual issues in this case, petitioners retain the burden of proof with respect to all factual" }, { "docid": "22955477", "title": "", "text": "and location of the contribution, and a description of the property in detail reasonably sufficient under the circumstances. See sec. 1.170A-13(b)(l), Income Tax Regs. Where it is unrealistic to obtain a receipt, taxpayers must maintain reliable written records of their contributions. See id. To substantiate additional charitable contributions of $6,937.20 for 1996 not previously claimed on their return for that year, petitioners offered several documents to the Court. Some of the documents do not have any indication of being provided by a donee organization but instead appear to have been generated by petitioners. Other documents consist of preprinted forms issued by alleged charitable organizations which petitioners filled in with the type and number of items donated and the estimated value of the donation. In addition, petitioners submitted checks and receipts which appear to be for the purchase of goods and services. Lastly, at trial, petitioners attempted to buttress their claims by describing the types of goods allegedly donated. While the preprinted forms appear authentic, we nevertheless conclude that petitioners’ self-generated receipts and other documents are not credible evidence of the order necessary to substantiate the deductions claimed in the instant case. See Tokh v. Commissioner, T.C. Memo. 2001-45. Further, we do not find petitioners’ testimony credible. We hold that petitioners have failed to introduce credible evidence to substantiate the actual items contributed and their fair market values. See sec. 7491(a)(1) and (2)(A). Consequently, the burden of proof is not placed on respondent. Because petitioners have failed to present us with any credible evidence, they have not met their burden of proof pursuant to Rule 142(a) to support their claimed deductions. We therefore hold that petitioners are not entitled to a deduction for charitable contributions in excess of the $1,500 that respondent has already allowed. C. Unreimbursed Employed Expenses and Schedule C and E Expenses Petitioners argue that they are entitled to a deduction of $6,468.09 for unreimbursed employee expenses instead of the $3,075 deduction returned on their Schedule A for 1996. Aside from Mrs. Higbee’s self-serving testimony at trial that these additional expenses related to her employment at a beauty" }, { "docid": "9644879", "title": "", "text": "if respondent is allowed to raise the quid pro quo argument, petitioners contend that they donated property with a fair market value of $76,000 (according to a qualified appraisal) which they have shown should be valued at its reproduction cost of $235,350 and that they received only an “incidental benefit” in return. Petitioners contend that section 170(f)(3)(A) is inapplicable because in transferring the lake house to the VFD with the right to demolish it, they transferred their entire interest in the property. III. Section 7491(a) Shift in the Burden of Proof We consider as a preliminary matter petitioners’ contention that the burden of proof has shifted to respondent pursuant to section 7491(a). In general, the Commissioner’s determination as set forth in a notice of deficiency is presumed correct. Welch v. Helvering, 290 U.S. 111, 115 (1933). Rule 142(a)(1) sets forth the general rule that the burden of proof shall be on the taxpayer, except as otherwise provided by statute or determined by the Court, and except that the burden of proof shall be upon the Commissioner in respect of any new matter, increases in deficiency, and affirmative defenses. Section 7491(a)(1), however, provides an exception that shifts the burden of proof to the Commissioner as to any factual issue relevant to a taxpayer’s liability for tax if (1) the taxpayer introduces credible evidence with respect to such issue, sec. 7491(a)(1); and (2) the taxpayer satisfies certain other conditions, including substantiation of any item and cooperation with the Government’s requests for witnesses and information, sec. 7491(a)(2); see also Rule 142(a)(2). Petitioners contend that they have satisfied the requirements of section 7491(a) and the burden of proof as to all factual issues affecting the deficiency in their tax should be shifted to respondent. Respondent contends that because he was denied access to the lake property incident to his trial preparation, petitioners have not satisfied the section 7491(a)(2)(B) requirement that they cooperate with “reasonable requests by the Secretary for witnesses, information, documents, meetings, and interviews”. Specifically, respondent argues, petitioners have failed to show that they took reasonable steps to secure Mrs. Gallagher’s permission for" }, { "docid": "15489788", "title": "", "text": "items are made in one proceeding before assessments are made at the individual partner level.”). . I.R.C. § 6226(e)(1) sets forth as a jurisdictional prerequisite that the partner filing the petition for readjustment must deposit with the Secretary of the Department of the Treasury \"the amount by which the tax liability of the partner would be increased if the treatment of partnership items on the partner’s return were made consistent with the treatment of partnership items on the partnership return, as adjusted by the final partnership administrative adjustment.” Plaintiffs satisfied this jurisdictional requirement by depositing on account of JFW Investments, LLC, $4,149,521.35, received on July 11, 2005, and $58,149.14, received on July 10, 2007. See PX 6; PX 12. . Invocation of burden-shifting under I.R.C. § 7491 is conditioned on the taxpayers demonstrating that (A) the taxpayer has complied with the requirements under this title to substantiate any item; (B) the taxpayer has maintained all records required under this title and has cooperated with reasonable requests by the Secretary for witnesses, information, documents, meetings, and interviews; and (C) in the case of a partnership, corporation, or trust, the taxpayer is described in section 7430(c)(4)(A)(ii). I.R.C. § 7491(a)(2). . Prompting this renewed interest in burden-shifting, plaintiffs presented the court during closing argument with a copy of the decision issued in Sala, 552 F.Supp.2d at 1185, which applied I.R.C. § 7491. . Defense counsel stated: I also want to point out, especially on the taxes, one of the limitations on the burden of proof issue is that the taxpayer has to have under a certain net worth. And that’s tied to EAJA. The net worth requirement on the day the complaint was filed was $7 million. The complaint was filed in 2005. There’s been no testimony as to what their net worth was then, but we know they have a half a billion dollars under management now____ .... Finally, your Honor, the plaintiffs have not established that they fully cooperated____ Now, having said that, I don’t think the case turns on who has the burden of proof. As a matter of fact," }, { "docid": "9644880", "title": "", "text": "Commissioner in respect of any new matter, increases in deficiency, and affirmative defenses. Section 7491(a)(1), however, provides an exception that shifts the burden of proof to the Commissioner as to any factual issue relevant to a taxpayer’s liability for tax if (1) the taxpayer introduces credible evidence with respect to such issue, sec. 7491(a)(1); and (2) the taxpayer satisfies certain other conditions, including substantiation of any item and cooperation with the Government’s requests for witnesses and information, sec. 7491(a)(2); see also Rule 142(a)(2). Petitioners contend that they have satisfied the requirements of section 7491(a) and the burden of proof as to all factual issues affecting the deficiency in their tax should be shifted to respondent. Respondent contends that because he was denied access to the lake property incident to his trial preparation, petitioners have not satisfied the section 7491(a)(2)(B) requirement that they cooperate with “reasonable requests by the Secretary for witnesses, information, documents, meetings, and interviews”. Specifically, respondent argues, petitioners have failed to show that they took reasonable steps to secure Mrs. Gallagher’s permission for respondent’s expert witness to view the lake property. Petitioners contend that they had no control over Mrs. Gallagher and that in any event section 7491(a)(2)(B) imposes a cooperation requirement on taxpayers only during the examination process. A taxpayer bears the burden of proving that he or she has met the requirements of section 7491(a). See Richardson v. Commissioner, T.C. Memo. 2005-143; H. Conf. Rept. 105—599, at 239 (1998), 1998-3 C.B. 747, 993. The legislative history underlying section 7491(a) states in pertinent part: the taxpayer must cooperate with reasonable requests by the Secretary for meetings, interviews, witnesses, information, and documents (including providing, within a reasonable period of time, access to and inspection of witnesses, information, and documents within the control of the taxpayer, as reasonably requested by the Secretary). Cooperation also includes providing reasonable assistance to the Secretary in obtaining access to and inspection of witnesses, information, or documents not within the control of the taxpayer (including any witnesses, information, or documents located in foreign countries). * * * [H. Conf. Rept. 105-599, supra at 240," }, { "docid": "19008976", "title": "", "text": "has not produced credible evidence for these purposes if the taxpayer merely makes implausible factual assertions, frivolous claims, or tax protestor-type arguments. The introduction of evidence will not meet this standard if the court is not convinced that it is worthy of belief.” Id. at *45-46. As evidenced by the sheer number of factual findings made by the Court in this case, both sides have offered substantial evidence to support their respective positions. The purpose behind the requirement is to weed out frivolous claims. The Court concludes it could base a decision on the material issues in dispute solely upon evidence presented by Plaintiff and is therefore satisfied that Plaintiff offered credible evidence to meet its requirement under Section 7491. ii. Plaintiffs Compliance with Code Requirements To meet the Internal Revenue Code’s substantiation and record maintenance requirements, Plaintiff must (1) substantiate its losses and (2) maintain adequate books and records. 26 U.S.C. § 7491(a)(2). To substantiate losses, taxpayers must come forward with evidence supporting the items of income, deduction and credit reported on their returns- — tax returns are not enough. Wilkinson v. Comm’r, 71 T.C. 633, 639, 1979 WL 3854 (1979). Thus to meet this requirement, a taxpayer must present “evidence, such as business records, building deeds, testimony by customers or business partners, and so on.” In re Indus. Comm. Elec., Inc., 319 B.R. 35, 55 (D.Mass.2005). “Substantiation requirements include any requirement of the Code or regulations that the taxpayer establish an item to the satisfaction of the Secretary.” S. Rep. No. 105-174,1998 WL 197371, at *46. The Government contends that Plaintiff failed to meet this burden because it failed to introduce evidence establishing the NPLs were not worthless by the time they were transferred to Southgate. Plaintiff failed to show Cinda had not written off any of the NPLs, the terms on which Cinda acquired the NPLs, and failed to present a witness with personal knowledge of these matters at trial. Despite this contention, the Government does not point to any specific “requirement of the Code or regulations” that Southgate has failed to sub stantiate by providing evidence" }, { "docid": "15489578", "title": "", "text": "107 (2007). Generally, in a tax refund suit, “the taxpayer bears the burden of establishing the right to a refund.” Abrahamsen v. United States, 228 F.3d 1360, 1364 (Fed.Cir.2000); see also Helvering v. Taylor, 293 U.S. 507, 514, 55 S.Ct. 287, 79 L.Ed. 623 (1935); Litman, 78 Fed.Cl. at 107 (“ ‘[I]n a refund suit the assessment made by the Service is presumed to be correct and this places an obligation on the taxpayer to come forward with evidence to rebut the presumption.’ ” (quoting Cook v. United States, 46 Fed.Cl. 110, 113 (2000))). However, under I.R.C. § 7491, “[i]f, in any court proceeding, a taxpayer introduces credible evidence with respect to any factual issue relevant to ascertaining the liability of the taxpayer for any tax imposed by subtitle A or B, the Secretary shall have the burden of proof with respect to such issue,” provided that the taxpayer establishes the enumerated prerequisites. I.R.C. § 7491(a)(l)-(2); see also Long Term Capital Holdings v. United States, 330 F.Supp.2d 122, 166 (D.Conn.2004) (noting burden of proof on taxpayer to establish that requirements of I.R.C. § 7491 have been met). Although plaintiffs assert in their complaints that “Defendant bears the burden of proof with respect to any issue set forth in the FPAA pursuant to Code Section 7491,” Compl. H 7(c)(ii), Stobie Creek Invs., No. 05-748T; Compl. 117(c)(ii), Stobie Creek Invs., No. 07-520T, they stop short of establishing the prerequisites for invoking I.R.C. § 7491. Plaintiffs’ pretrial brief setting forth their contentions of fact and law makes no mention of I.R.C. § 7491, and plaintiffs did not adduce evidence in recognition of the burden-shifting effect of I.R.C. § 7491. Plaintiffs’ counsel only mentioned I.R.C. § 7491 during closing arguments, at which time defense counsel questioned whether plaintiffs could qualify under the statute, as well as surmised that the result would be the same based on the weight of the evidence. Given the dearth of argument on the subject and the failure of plaintiffs to demonstrate that they have satisfied the prerequisites for shifting the burden under I.R.C § 7491(a)(2), the court rules that" }, { "docid": "19008975", "title": "", "text": "a partnership, has a net worth below $7 million on the date suit is filed. 26 U.S.C. § 7491(a) (emphasis added). Congress imposed the burden on the taxpayer of establishing that these four requirements of Section 7491(a)(2) have been met. See S. Rep. No. 105-174, at 45 (1998) (“The taxpayer has the burden of proving that it meets each of these conditions, because they are necessary prerequisites to establishing that the burden of proof is on the Secretary.”). The burden of proof does not shift on any matters the Court concludes are legal matters rather than factual issues. Jade Trading, LLC v. United States, 80 Fed.Cl. 11, 47 (2007). i. Plaintiffs Credible Evidence on Disputed Facts The legislative history of Section 7491 defines “credible evidence” as “the quality of evidence which, after critical analysis, the court would find sufficient upon which to base a decision on the issue if no contrary evidence were submitted (without regard to the judicial presumption of IRS correctness).” S. Rep. No. 105-174, 1998 WL 197371, at *45. Additionally, “[a] taxpayer has not produced credible evidence for these purposes if the taxpayer merely makes implausible factual assertions, frivolous claims, or tax protestor-type arguments. The introduction of evidence will not meet this standard if the court is not convinced that it is worthy of belief.” Id. at *45-46. As evidenced by the sheer number of factual findings made by the Court in this case, both sides have offered substantial evidence to support their respective positions. The purpose behind the requirement is to weed out frivolous claims. The Court concludes it could base a decision on the material issues in dispute solely upon evidence presented by Plaintiff and is therefore satisfied that Plaintiff offered credible evidence to meet its requirement under Section 7491. ii. Plaintiffs Compliance with Code Requirements To meet the Internal Revenue Code’s substantiation and record maintenance requirements, Plaintiff must (1) substantiate its losses and (2) maintain adequate books and records. 26 U.S.C. § 7491(a)(2). To substantiate losses, taxpayers must come forward with evidence supporting the items of income, deduction and credit reported on their returns-" }, { "docid": "22955478", "title": "", "text": "not credible evidence of the order necessary to substantiate the deductions claimed in the instant case. See Tokh v. Commissioner, T.C. Memo. 2001-45. Further, we do not find petitioners’ testimony credible. We hold that petitioners have failed to introduce credible evidence to substantiate the actual items contributed and their fair market values. See sec. 7491(a)(1) and (2)(A). Consequently, the burden of proof is not placed on respondent. Because petitioners have failed to present us with any credible evidence, they have not met their burden of proof pursuant to Rule 142(a) to support their claimed deductions. We therefore hold that petitioners are not entitled to a deduction for charitable contributions in excess of the $1,500 that respondent has already allowed. C. Unreimbursed Employed Expenses and Schedule C and E Expenses Petitioners argue that they are entitled to a deduction of $6,468.09 for unreimbursed employee expenses instead of the $3,075 deduction returned on their Schedule A for 1996. Aside from Mrs. Higbee’s self-serving testimony at trial that these additional expenses related to her employment at a beauty salon, petitioners have failed to provide us with sufficient and credible evidence for us to rule in their favor. Petitioners also claim additional Schedule C deductions of $8,087.26 for 1996 and $8,590.48 for 1997 on account of amounts allegedly owed and paid with regard to their failed beauty salon business. Petitioners contend that they paid these amounts while in a chapter 13 bankruptcy proceeding. In support, petitioners submitted to the Court a document entitled “Debtor Receipts and Disbursements Summary” which provides general information about the deposits made by petitioners with the trustee of the bankruptcy estate and the disbursements to creditors by the trustee. As to the bankruptcy-related expenses claimed, petitioners have failed to provide us with sufficient credible evidence that petitioners had outstanding business debts which were paid while in bankruptcy. Further, petitioners have failed to explain the origin of these expenses in sufficient detail for us to find that these expenses would be allowable for the tax years in issue. Petitioners have failed to meet the substantiation and record-keeping requirements of section 7491(a)." }, { "docid": "14211922", "title": "", "text": "upon legislative history). Viewing Robert Griffin’s testimony in the absence of any evidence or presumptions to the contrary, we conclude that appellants did produce sufficient “credible evidence” to support their personal deductions of the real property tax payments at issue. We therefore hold that the tax court erred in failing to shift to the Commissioner the burden to prove the non-applicability of the Lohrke exception in the present ease. Cf. Capital Video Corp. v. Comm’r, 311 F.3d 458, 465-66 (1st Cir.2002) (holding that the burden of proof did not shift to the Commissioner where the taxpayer presented no evidence linking the pajunents in question to the promotion of the taxpayer’s business). Our application of 26 U.S.C. § 7491(a) in the present case does not resolve the merits of the deficiency issues. On the record before us, we cannot determine whether the Commissioner has met his burden of proof. It is not sufficient to summarily conclude that the outcome is the same regardless of who bears the burden of proof; if that were the case, § 7491(a) would have no meaning. We therefore remand the case to the tax court for further proceedings on the merits. On remand, the tax court may reconsider all of the evidence properly before it or hold a new hearing. In either case, the tax court is instructed to make new findings of fact in light of the shifted burden of proof. If the same conclusion is reached by the tax court without a new hearing, an explanation is warranted as to how the existing record justifies the conclusion that the Commissioner has met his burden of proof. Conclusion For the reasons stated, we vacate the tax court’s order and remand the case for further proceedings consistent with this opinion. . See also Capital Video Corp. v. Comm'r, 311 F.3d 458, 464-66 (1st Cir.2002) (discussing and applying the Lohrke exception). . Section 7491(a) provides in full: (1) General Rule. — If, in any court proceeding, a taxpayer introduces credible evidence with respect to any factual issue relevant to ascertaining the liability of the taxpayer for any" } ]

[ { "docid": "22827805", "title": "", "text": "in the shape of a bee encrusted with jewels. The court assumed the validity of plaintiff’s copyright, but refused to find substantial similarity: What is basically at stake is the extent of the copyright owner’s monopoly — from how large an area of activity did Congress intend to allow the copyright owner to exclude others? We think the production of jeweled bee pins is a larger private preserve than Congress intended to be set aside in the public market without a patent. A jeweled bee pin is therefore an “idea” that defendants were free to copy. Plaintiff seems to agree, for it disavows any claim that defendants cannot manufacture and sell jeweled bee pins and concedes that only plaintiff’s particular design or “expression” of the jeweled bee pin “idea” is protected under its copyright. The difficulty, as we have noted, is that on this record the “idea” and its “expression” appear to be indistinguishable. There is no greater similarity between the pins of plaintiff and defendants than is inevitable from the use of jewel-encrusted bee forms in both. When the “idea” and its “expression” are thus inseparable, copying the “expression” will not be barred, since protecting the “expression” in such circumstances would confer a monopoly of the “idea” upon the copyright owner free of the conditions and limitations imposed by the patent law. Id. at 742; see also Franklin Mint Corp. v. National Wildlife Act Exchange, Inc., 575 F.2d 62 (3d Cir.), cert. denied, 439 U.S. 880, 99 S.Ct. 217, 58 L.Ed.2d 193 (1978). “The idea and expression will coincide when the expression provides nothing new or additional over the idea.” Krofft, 562 F.2d at 1168. In the context of literary works, some courts have adopted a similar scenes a Zaire approach. Scenes a faire refers to “incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.” Alexander v. Haley, 460 F.Supp. 40, 45 (S.D.N.Y.1978); see Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d" } ]

[ { "docid": "23106628", "title": "", "text": "Co. v. Bando American, Inc., 798 F.Supp. 1499, 1507 (D.Colo.1992). On appeal the defendants do not dispute that Gates held a valid copyright on the Design Flex program. . Copying is used herein as a shorthand reference to any infringement of the copyright holder's exclusive rights that are set forth at 17 U.S.C. § 106. Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277, 291 (3d Cir.), cert. denied-U.S.-, 112 S.Ct. 373, 116 L.Ed.2d 324 (1991). 17 U.S.C. § 106 establishes: Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies ...; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies ... of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; 17 U.S.C. § 106 (1977 and Supp.1993). . In examining the similarities between two programs under the indirect method of proving copying it is ordinarily important to compare the whole works. Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607, 618 (7th Cir.), cert. denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 145 (1982); Steven R. Englund, Note, Idea, Process, or Protected Expression?: Determining the Scope of Copyright Protection of the Structure of Computer Programs, 88 Mich.L.Rev. 866, 905-906 (1990); Anthony L. Clapes, Patrick Lynch & Mark R. Steinberg, Silicon Epics and Binary Bards: Determining the Proper Scope of Copyright Protection for Computer Programs, 34 UCLA L.Rev. 1493, 1570 (1987). We agree with the district court's conclusion that it is far preferable, especially in an area of legal and technological sophistication as complex as this area of copyright protection, to draw upon a larger arsenal of facts in order to design or derive the appropriate legally significant facts. Once these are gathered and expert testimony is heard, the court can then analyze which portions of the program, according to the expert testimony, infringes the protected expression. Gates Rubber Co. v. Bando American, Inc.," }, { "docid": "18392125", "title": "", "text": "based neither on a right within the general scope of copyright as specified by Section 106 . .. nor on a right equivalent thereto. For example, state law should have the flexibility to afford a remedy (under traditional principles of equity) against a consistent pattern of unauthorized appropriation by a competitor of the facts, (i.e., not the literary expression) constituting “hot” news, whether in the traditional mode of International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918) or in the newer form of data updates from scientific, business or financial data bases.” [1976] U.S.Code Cong. & Admin. News at p. 5748. The first prong of the analysis under Section 301, the subject matter of copyright, is clearly satisfied in this case. Section 102 extends copyright protection to “original works of authorship fixed in any tangible medium of expression,” including literary works, and pictorial, graphic, and sculptural works. 17 U.S.C. § 102(a)(1) & (5). Architectural and engineering drawings fall within the subject matter of copyright. See Imperial Homes Corp. v. Lamont, 458 F.2d 895 (5th Cir. 1972); DeSilva Construction Corp. v. Herrald, 213 F.Supp. 184 (M.D.Florida, 1962). The second prong of the preemption analysis contained in Section 301 requires the Court to determine whether the rights sought to be enforced under state law are “equivalent to any of the exclusive rights within the general scope of copyright as specified by Section 106.” 17 U.S.C. § 301(b)(3). Section 106 provides that an author has exclusive rights to do and to authorize (1) the reproduction of copyrighted work (to make copies), (2) the preparation of derivative works based on his copyrighted work, and (3) the distribution of copies of the copyrighted work to the public by sale or other transfer of ownership. Under this prong, Section 301 requires preemption when state law rights are not “different in kind” from the rights protected under the Copyright Act. In assessing whether a cause of action under state law is “equivalent” to a claim of copyright infringement, the Court must compare the rights sought to be protected under the" }, { "docid": "1456055", "title": "", "text": "defendant if the plaintiff does not meet its burden at trial. . Although we cannot hold that Playmates is entitled to judgment as a matter of law, the court emphasizes, for the purpose of providing guidance to the parties, that many of the BATTLE-TECH designs are materially similar to the third-party designs submitted by Playmates. Indeed, as suggested by Playmates, in several instances the BATTLETECH designs resemble the third-party designs at least as much as the EXOSQUAD designs resemble the BATTLETECH designs. If the third-party designs prove to be the designs licensed by FASA, FASA will unquestionably be confronted with an uphill battle in pursuing its copyright claims based on similarity of the designs. FASA’s derivative copyrights do not confer copyright protection to the preexisting material employed in the derivative works, 17 U.S.C. § 103(b); rather, the protection extends only to FASA’s original contribution. As noted in Atari, ”[w]hile dissection is generally disfavored, the ordinary observer test, in application, must take into account that the copyright laws preclude appropriation of only those elements of the work that are protected by the copyright.” 672 F.2d at 614. Thus, in order to prevail on its copyright claims, FASA will ultimately have to establish that the EXOSQUAD E-Frame designs are substantially similar to the BATTLETECH Mech designs with respect to FASA’s original contributions. . Moreover, Playmates cannot seriously contend that the BATTLETECH designs themselves are scenes a faire. Our review of the exhibits submitted by both FASA and Playmates (includ ing approximately fifteen to twenty videotape film clips and innumerable pictorial images) leaves the court firmly convinced that the BATT-LETECH Mech designs are neither standard or indispensable elements of science fiction or, more narrowly, science fiction depictions of robots. Playmates can only argue that the BATT-LETECH designs are standard to the genre by defining \"the genre” in such a narrow fashion so as to render the argument tautological. However, it is clear from the exhibits — particularly the video clips submitted as Exhibit 1 to the Garcia declaration — that the concept of drivable robots or robotic exoskeletons used as war machines is" }, { "docid": "12868252", "title": "", "text": "perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. (1) literary works; (2) musical works, including accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. 17 U.S.C. § 102. Section 103 of the Copyright Act provides: (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. 17 U.S.C. § 103. . Section 106 of the Copyright Act provides: Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic," }, { "docid": "1455988", "title": "", "text": "Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir.1977)). Of course, the protection afforded by the copyright laws is not absolute. Copyright protects only the expression of ideas, not the ideas themselves. 17 U.S.C. § 102(b); Wildlife Express, 18 F.3d at 507; Atari, 672 F.2d at 614-15. In a related vein, copyright protection does not extend to scenes a j'aire — that is, the “ ‘incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.’ ” Atari, 672 F.2d at 616 (quoting Alexander v. Haley, 460 F.Supp. 40, 45 (S.D.N.Y.1978)). Also, although copyright protection is afforded to derivative works , that protection is not extended to the preexisting material employed in the work. 17 U.S.C. § 103(b) ; see also Saturday Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191, 1193 (7th Cir. 1987) (noting that the copyright protection accorded to derivative works is limited to that portion of the work adding incremental originality beyond the preexisting work). Playmates’ motion for summary judgment on FASA’s copyright claims rests principally on the following two propositions: (1) FASA’s claims are based on non-protectible elements; and (2) BATTLETECH and EX-OSQUAD are not substantially similar. The former proposition — which speaks to the scope of FASA’s copyright protection (i.e., the extent of the monopoly conferred by the copyright) — has two prongs. First, Playmates argues that FASA is seeking protection of general ideas or themes or scenes a faire. Second, Playmates argues that FASA’s copyright claims are based on the underlying preexisting works from which its copyrighted material is derived. The court notes that its task in ruling on the copyright infringement counts has been unnecessarily complicated — and ultimately undermined — by the fact that neither party has shed much light on the exact scope of the copyright protection FASA seeks to invoke. As the moving party on a motion for summary judgment, Playmates carries the initial burden “of informing the district court of the basis for its motion, and identifying those portions of [the record]" }, { "docid": "1456020", "title": "", "text": "such right or equivalent right in any such work under the common law or statutes of any State. 17 U.S.C. § 301(a). Thus, section 301(a) expressly preempts state created rights that are equivalent to any of the rights established by a federal copyright. Baltimore Orioles, Inc. v. Major League Baseball Players Ass’n, 805 F.2d 663, 674 n. 20 (7th Cir. 1986), cert. denied, 480 U.S. 941, 107 S.Ct. 1593, 94 L.Ed.2d 782 (1987). The provision establishes two conditions that must be met for preemption of a state created right: “First, the work in which the right is asserted must be fixed in tangible form and come within the subject matter of copyright as specified in § 102. Second, the right must be equivalent to any of the rights specified in § 106.” Id. at 674. Playmates’ motion for summary judgment as to count IX challenges FASA’s ability to satisfy the latter condition. In particular, Playmates contends that “FASA’s interference claim rests solely on the identical acts that are alleged to constitute a copyright infringement,” Def.’s Mem. at 5, and hence the rights asserted by FASA are equivalent to those established by the Copyright Act. Accordingly, we shall focus our discussion on this issue. The Seventh Circuit has framed the “equivalence” analysis as follows: A right under state law is “equivalent” to one of the rights within the general scope of copyright if it is violated by any of the rights set forth in § 106. That section grants the owner of a copyright the exclusive rights to reproduce (whether in original or derivative form), distribute, perform, and display the copyrighted work. Thus, a right is equivalent to one of the rights comprised by a copyright if it “is infringed by the mere act of reproduction, performance, distribution or display.” Baltimore Orioles, 805 F.2d at 676-77 (citations omitted). Additionally, where a state created right “requires additional elements to make out a cause of action, but the additional elements do not differ in kind from those necessary for copyright infringement,” the right is equivalent to a copyright. Id. at 678 n. 26." }, { "docid": "13663536", "title": "", "text": "the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960). This test focuses on whether the “accused work has captured the ‘total concept and feel’ of the copyrighted work.” Atari, 672 F.2d at 614 (quoting Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1110 (9th Cir.1970)). It is axiomatic that copyright protection only covers “the expression of ideas, not the ideas themselves.” See FASA, 912 F.Supp. at 1145; see also 17 U.S.C. § 102(b). Furthermore, the copyright protection afforded to a derivative work is limited to the “incremental originality” added to the work, and does not extend to the underlying preexisting works. See Saturday Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191, 1193 (7th Cir.1987). Thus, in order to prevail on a copyright infringement claim for a derivative work, the plaintiff must not only establish substantial similarity between the protected and accused works, but that the similarities derive from his protected expression of, or “incremental originality” added to, the underlying works. See FASA, 912 F.Supp. at 1147; North Am. Bear Co., Inc. v. Carson Pirie Scott & Co., No. 91 C 4550, 1991 WL 259031, at *3 (N.D.Ill. Nov. 27, 1991) (courts should “analyze the two works to determine whether all similarities between the two works derive from the copying of unprotected expression”). “[T]his requires a sharper focus: the court must find a substantial similarity between the protectable elements of the two works. That is, the plaintiff must show that the defendant appropriated the plaintiffs particular means of expressing an idea, not merely that he expressed the same idea.” Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 123 (2d Cir.1994). The first step, of course, is to identify the protectable expression found in Mr. Theotokatos’ designs. Mr. Theotokatos’ copyrights do not protect his overall idea of arranging flags and Olympic symbols to commemorate the centennial Olympics, or even his idea of flags in a circle or in rows with Olympic symbols in the center," }, { "docid": "1456023", "title": "", "text": "Architects, 1986 WL 7051 *4-*5 (N.D.Ill. June 11, 1986); but see Summit Mach. Tool Mfg. Corp. v. Victor CNC Sys., Inc., 7 F.3d 1434, 1442 (9th Cir. 1993) (stating without explanation that a claim for tortious interference with contract includes the requisite extra element necessary to avoid preemption). In concluding that the plaintiffs tortious interference with contract count was preempted in Harper & Row, the district court noted: The contractual right sought to be protected is closely analogous to the exclusive rights granted copyright holders under § 106 of the Copyright Act. It is the right to “prepare derivative works based upon the copyrighted work,” and “to distribute copies ... of the copyrighted work to the public by sale or other transfer of ownership.” 501 F.Supp. at 853. Additionally, the court reasoned that the fact that the tortious interference claim required additional elements of awareness and intentional interference with contract did not preclude a finding of preemption because such elements do not render the asserted right “different in kind” from those protected under copyright. Id. at 853-54. In affirming the district court’s preemption decision, the Second Circuit advanced parallel arguments and further noted, with respect to both the state law claim and the copyright infringement claim, that “it is the act of unauthorized publication which causes the violation.” 723 F.2d at 201. In the ease at bar, Playmates contends that, as in Harper & Row, FASA’s tortious interference claim is predicated on precisely the same conduct underlying its copyright infringement counts. Playmates seizes upon the following deposition testimony by Morton Weisman, FASA’s CEO, as support for its contention that the only act allegedly interfering with FASA’s business plans was the display and distribution of an infringing toy line: Q. Other than presenting a toy line that you claim is a ripoff, is there anything else that Playmates did to interfere with your dealings with Tyco? MS. KSANDER: To the extent that you know. THE WITNESS: I know of no — to the extent I know, I know of none. Q. The only act by Playmates, as I understand you then," }, { "docid": "6254022", "title": "", "text": "§ 8. Congress enacted the first copyright statute as early as 1790. The existing copyright laws are codified in the Copyright Act of 1976 (the Act). This Act contains a complete revision of copyright law in response to far reaching new developments made in technology and the sciences. Congress amended the Act in 1980 expressly to extend copyright protection to computer programs and derivatives. 17 U.S.C. §§ 101 et sea. The Copyright Act as amended provides, in relevant part, that: (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of machine or device. Works of authorship include the following categories: (1) literary works: 17 U.S.C. § 102(a). Computer programs are entitled to copyright protection as “literary works.” Whelan Assoc. v. Jaslow Dental Lab., 797 F.2d 1222, 1234 (3d Cir.1986). To establish a claim of copyright infringement, a plaintiff must establish: (1) ownership of a valid copyright; and (2) unauthorized copying of original elements of the plaintiffs work. Whelan, 797 F.2d at 1231; Gates Rubber Co. v. Bando Chem. Indus., 9 F.3d 823, 831 (10th Cir.1993). Copying is a “shorthand reference to the act of infringing any of the copyright owner’s five exclusive rights set forth at 17 U.S.C. § 106.” Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277, 291 (3d Cir.1991). Of relevance here, 17 U.S.C. § 106 provides: Subject to sections 107 through 121, the owner of copyright ... has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; In the instant case, the ownership of the copyrighted property is undisputed, as is its validity. The United States Copyright Office issued to Geac certificates" }, { "docid": "10208246", "title": "", "text": "Studios must (1) “show ownership of the allegedly infringed material” and (2) “demonstrate that the alleged infringers violate at least one exclusive right granted to copyright holders under 17 U.S.C. § 106.” Id. at 1159 (citation omitted). VidAngel’s briefing on appeal does not contest the Studios’ ownership of the copyrights, instead focusing only on the second requirement. Copyright owners have the exclusive right “to reproduce the copyrighted work in copies,” or to authorize another to do so. 17 U.S.C. § 106(1). VidAngel concedes that it copies the Studios’ works from discs onto a computer. VidAngel initially argued that because it lawfully purchased the discs, it can also lawfully re-sell or rent them. But, lawful owners “of a particular copy” of a copyrighted work are only entitled to “sell or otherwise dispose of the possession of that copy,” not to reproduce the woi’k. 17 U.S.C. § 109(a). The district court thus did not abuse its discretion in concluding that VidAngel’s copying infringed the Studios’ exclusive reproduction right. See MAI Sys. Corp. v. Peak Comput., Inc., 991 F.2d 511, 518 (9th Cir. 1993) (transferring digital files “from a permanent storage device to a computer’s RAM” is “copying” under § 106); Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1518 (9th Cir. 1993) (holding that § 106 “unambiguously ... proscribes ‘intermediate copying* ” (citation omitted)). B. Defenses to copyright infringement. 1. The Family Movie Act. The FMA was designed to allow consumers to skip objectionable audio and video content in motion pictures without committing copyright infringement. Family Entertainment and Copyright Act of 2005, Pub. L. No. 109-9, Title II, §§ 201, 202(a), 119 Stat. 218 (2005). The statute provides, in relevant part: Notwithstanding the provisions of section 106, the following are not infringements of copyright: [•••] the making imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion picture, during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture, or the creation or provision of a computer" }, { "docid": "1456036", "title": "", "text": "copying of designs' and other elements of the BATTLETECH universe. Because the court’s analysis of FASA’s charges of misrepresentation and reverse passing off leads to the conclusion that the rights asserted by FASA are equivalent to those established by copyright, we find that FASA must vindicate those rights under federal law. Accordingly, we hold that Count II is preempted. CONCLUSION Playmates’ motion for summary judgment is granted in part and denied in part. Summary judgment in favor of Playmates Toys, Inc. and against plaintiffs FASA Corporation and Virtual World Entertainment is entered as to counts II (common law unfair competition), VII (anti-dilution), VIII (anti-dilution) and IX (tortious interference). The motion is denied in all other respects. Accordingly, plaintiffs’ Lanham Act unfair competition count (Count I), copyright infringement counts (Counts III and IV), and trademark infringement counts (Counts V and VI) remain for trial. At this point, it is worthwhile to review some of the major outstanding issues identified in this opinion and requiring resolution at, or prior to, trial. See Fed.R.CivP. 56(d). During the trial of this case, in accord with this opinion, the parties will need to address whether Allen acted within the scope of his actual or ostensible authority when he signed Playmates’ waiver. Regarding the copyright claims, most significant, of course, is the issue of the scope of FASA’s protectible interests in the BATTLETECH universe. While falling short of demonstrating its entitlement to judgment as a matter of law, Playmates has raised serious questions concerning the viability of FASA’s remaining copyright claims. Playmates has put the scope of FASA’s copyright protection squarely into issue. Before this court will allow this case to be submitted to a jury, FASA must come forward and identify with particularity what it claims is covered by its registered copyrights. In so doing, FASA must identify with particularity the preexisting works from which its derivative works are derived and it must identify with particularity the designs it originally licensed from third-parties. To the extent that FASA contends that its designs differ from the preexisting works, licensed designs, or other third-party designs identified by" }, { "docid": "1456051", "title": "", "text": "\"substantial similarity” as used in the context of discussing the circumstantial method of establishing simple copying (i.e., proving access and \"substantial similarity”) is not equivalent to unlawful appropriation; for in this context, “substantial similarity” is assessed \"between the works 'when compared in their entirety including both protectible and unprotectible material.'\" Stillman, 720 F.Supp. at 1358 (quoting 3 Nimmer on Copyright § 13.03[e] at 13-55 (1988)). As further explained in Stillman: the copying/unlawful appropriation dichotomy simply reflects the fact that the copyright laws do not protect ideas, procedures, and concepts, but only the expression of ideas. Copying occurs when a defendant usurps the former; unlawful appropriation, however, requires the purloining of expression as well. Id. . Section 101 of the Copyright Act defines a \"derivative work” as \"a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization ..., or any other form in which a work may be recast, transformed, or adapted.” 17 U.S.C. § 101. . Section 103(b) provides: The copyright in a' compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. 17 U.S.C. § 103(b). . It is only after a properly supported motion for summary judgment has been filed that the burden of production shifts to the nonmoving party to set forth specific facts showing there is no genuine issue for trial. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. . In this regard we note the following. As far as can be discerned from the record, Playmates never directly inquired, through interrogatory or otherwise, as to the precise nature of the preexisting works upon which FASA's derivative material was based. Nor did Playmates inquire directly into the precise scope of FASA's copyright protection — i.e., what, precisely, FASA claimed were its original contributions." }, { "docid": "1455989", "title": "", "text": "Playmates’ motion for summary judgment on FASA’s copyright claims rests principally on the following two propositions: (1) FASA’s claims are based on non-protectible elements; and (2) BATTLETECH and EX-OSQUAD are not substantially similar. The former proposition — which speaks to the scope of FASA’s copyright protection (i.e., the extent of the monopoly conferred by the copyright) — has two prongs. First, Playmates argues that FASA is seeking protection of general ideas or themes or scenes a faire. Second, Playmates argues that FASA’s copyright claims are based on the underlying preexisting works from which its copyrighted material is derived. The court notes that its task in ruling on the copyright infringement counts has been unnecessarily complicated — and ultimately undermined — by the fact that neither party has shed much light on the exact scope of the copyright protection FASA seeks to invoke. As the moving party on a motion for summary judgment, Playmates carries the initial burden “of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2553. In the present context, Playmates’ burden necessarily involves, among other things, ferreting out the parameters of FASA’s alleged copyright protection. It is only by first establishing the scope of FASA’s copyright protection of the BATTLETECH universe, that Playmates can establish that the EXOSQUAD toy line does not infringe upon that protection. In the same vein, while it is true that Playmates carries the initial burden on a motion for summary judgment, the court must note that FASA, either by accident or design, has consistently been less than precise as to the exact scope of the copyright protection it seeks to invoke. Similarly, while FASA acknowledges that the original twenty Mech designs were licensed from Japanese creators, Pis.’ Add’l Facts ¶ 5; see also Tr. 37 , FASA has not submitted any evidence regarding these licensed designs. Nor has FASA made any genuine effort to delineate with particularity how its purportedly" }, { "docid": "11910479", "title": "", "text": "accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (b) In no case does copyright protection for any original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. .17 U.S.C. § 103 provides: (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. Subject to sections 107 through 120, the owner of a copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly. . 17 U.S.C. § 106 provides: . Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340," }, { "docid": "4269213", "title": "", "text": "this “thin” protection, it takes “virtually ‘extensive verbatim copying’ to constitute infringement” of a compilation. Id. at 729 (citations omitted). Plaintiff counters Defendants’ contention that its mailers are compilations, stating simply and without any elaboration, that “[t]he artistic expression of the direct mail does not solely involve assembling preexisting materials.” Pl.’s Resistance Br. at 51. The Court concludes, taking the evidence in the light most favorable to the Plaintiff, and for purposes of the present motion only, that Plaintiffs direct mailers, while mostly a compilation, are not wholly comprised of an arrangement of preexisting works and are, therefore, not compilations within the meaning of the Copyright Act. “The test of originality is generally characterized as ‘modest’, ‘minimal’, and ‘a low threshold’ and as a practical matter requires ‘little more than a prohibition of actual copying.’ ” Tonka Corp. v. Tsaisun, Inc., No. 3-85-1885, 1986 WL 29980, at *12 (D.Minn. Nov.6, 1986) (citations omitted). “[D]efendants may establish copying by [P]laintiff by showing access and substantial similarity between plaintiffs work and the prior work.” Id. (citing 2 Nimmer on Copyright § 12.11[A]). Defendants have not pointed the Court to any evidence that would tend to show that Plaintiff copied its copyrighted works from another source. Thus, the Court will find, for purposes of the present motion, that Plaintiffs copyrighted works are sufficiently original to qualify for copyright protection. G. Infringement Even presuming that Plaintiff has shown that it has a valid copyright which possesses the requisite level or originality, it is still incumbent upon Plaintiff to demonstrate that Defendants infringed thereon. See Moore, 972 F.2d at 941. 17 U.S.C. § 106 provides certain exclusive rights to the holder of a valid copyright: Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease," }, { "docid": "1456054", "title": "", "text": "directing the parties to address certain specific issues during oral argument. Citations to \"Tr. at_\" refer to the transcript of the argument heard in this matter on August 18, 1994. . Complicating matters, at oral argument FASA's counsel stated that the Japanese works are not the preexisting works underlying FASA's derivative works. Tr. at 41. This statement accurately reflects the copyright registrations which indicate that the preexisting works are prior FASA works. This introduces another layer in the analysis of what constitutes FASA’s original contribution in the copyrighted works at issue in this case: It appears that a proper analysis must examine how the underlying FASA works differ from the licensed Japanese works and then, in turn, how the works that are the subject of this suit differ from the underlying FASA works. . This type of litigation strategy, whether intentional or not, may have inadvertently benefitted the plaintiff. However, this court will not allow a jury to be treated in a similar fashion and will not hesitate to enter a directed verdict for the defendant if the plaintiff does not meet its burden at trial. . Although we cannot hold that Playmates is entitled to judgment as a matter of law, the court emphasizes, for the purpose of providing guidance to the parties, that many of the BATTLE-TECH designs are materially similar to the third-party designs submitted by Playmates. Indeed, as suggested by Playmates, in several instances the BATTLETECH designs resemble the third-party designs at least as much as the EXOSQUAD designs resemble the BATTLETECH designs. If the third-party designs prove to be the designs licensed by FASA, FASA will unquestionably be confronted with an uphill battle in pursuing its copyright claims based on similarity of the designs. FASA’s derivative copyrights do not confer copyright protection to the preexisting material employed in the derivative works, 17 U.S.C. § 103(b); rather, the protection extends only to FASA’s original contribution. As noted in Atari, ”[w]hile dissection is generally disfavored, the ordinary observer test, in application, must take into account that the copyright laws preclude appropriation of only those elements of the" }, { "docid": "1456056", "title": "", "text": "work that are protected by the copyright.” 672 F.2d at 614. Thus, in order to prevail on its copyright claims, FASA will ultimately have to establish that the EXOSQUAD E-Frame designs are substantially similar to the BATTLETECH Mech designs with respect to FASA’s original contributions. . Moreover, Playmates cannot seriously contend that the BATTLETECH designs themselves are scenes a faire. Our review of the exhibits submitted by both FASA and Playmates (includ ing approximately fifteen to twenty videotape film clips and innumerable pictorial images) leaves the court firmly convinced that the BATT-LETECH Mech designs are neither standard or indispensable elements of science fiction or, more narrowly, science fiction depictions of robots. Playmates can only argue that the BATT-LETECH designs are standard to the genre by defining \"the genre” in such a narrow fashion so as to render the argument tautological. However, it is clear from the exhibits — particularly the video clips submitted as Exhibit 1 to the Garcia declaration — that the concept of drivable robots or robotic exoskeletons used as war machines is plainly not original or unique to FASA. . It should be noted that this court’s minute order of July 28, 1994, granting defendant's motion for oral argument specifically directed the parties to address: “What is the extent of FASA's copyright: i.e., What parts of the copyrighted works constitute protectable expressions as opposed to unprotected ideas....” . See supra note 29. . In addition to concluding that FASA is seeking protection of general ideas and concepts, the court also notes that — at least with respect to the concepts of interstellar, battle dominated universes, drivable giant robots, and genetically manipulated warriors — FASA's claim to originality is open to considerable doubt. In his preface to the English translation of Japanese author Yoshiyuki Tomino's GUNDAM Mobile Suit (volume I) Awakenings (1990), translator Frederik L. Schodt observed that the Gundam Mobile Suit, which began in 1979 as an animated television series, \"had its roots in a long Japanese tradition of giant warrior robot animated TV shows.” Garcia Deck, Ex. 2, at vii. Schodt mentions that the Japanese robots" }, { "docid": "1456052", "title": "", "text": "only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. 17 U.S.C. § 103(b). . It is only after a properly supported motion for summary judgment has been filed that the burden of production shifts to the nonmoving party to set forth specific facts showing there is no genuine issue for trial. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. . In this regard we note the following. As far as can be discerned from the record, Playmates never directly inquired, through interrogatory or otherwise, as to the precise nature of the preexisting works upon which FASA's derivative material was based. Nor did Playmates inquire directly into the precise scope of FASA's copyright protection — i.e., what, precisely, FASA claimed were its original contributions. (In the absence of direct questions on these issues, it is not surprising that FASA did not offer up the information — for it allowed them to survive the instant motion for summary judgment. However, ultimately FASA will have to show its hand to survive a motion for a directed verdict on these claims.) If, in fact, these questions were asked, Playmates has not directed the court to FASA's answers. In the absence of this critical information, it is inconceivable to this court that Playmates believes it can establish the absence of a genuine issue of material fact on the issues of the scope of FASA’s protection or of the substantial similarity of protected expression. . In fact, FASA has not even bothered to submit for the court's review four of the five copyrighted works identified in its complaint. The court knows of no other copyright infringement case in which the plaintiff did not submit the subject copyrighted works for the court’s review. . The court attempted to avoid the very problems mentioned herein by" }, { "docid": "1455987", "title": "", "text": "U.S. 340, 361, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991)); see also Atari, Inc. v. North Am. Philips Consumer Electronics Corp., 672 F.2d 607, 614 (7th Cir.), cert. denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 145 (1982). In the absence of direct evidence, “copying may be inferred where the defendant had access to the copyrighted work and the accused work is substantially similar to the copyrighted work.” Atari, 672 F.2d at 614; Wildlife Express, 18 F.3d at 508. If the similarities between works are insufficient to prove copying or if it is established that the accused work was independently created without copying, the plaintiff cannot prevail. Wildlife Express, 18 F.3d at 508. The perspective of the “ordinary person” governs the assessment of substantial similarity; in particular, “the test is whether the accused work is so similar to the plaintiffs work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiffs protectible expression by taking material of substance and value.” Atari, 672 F.2d at 614 (citing Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir.1977)). Of course, the protection afforded by the copyright laws is not absolute. Copyright protects only the expression of ideas, not the ideas themselves. 17 U.S.C. § 102(b); Wildlife Express, 18 F.3d at 507; Atari, 672 F.2d at 614-15. In a related vein, copyright protection does not extend to scenes a j'aire — that is, the “ ‘incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.’ ” Atari, 672 F.2d at 616 (quoting Alexander v. Haley, 460 F.Supp. 40, 45 (S.D.N.Y.1978)). Also, although copyright protection is afforded to derivative works , that protection is not extended to the preexisting material employed in the work. 17 U.S.C. § 103(b) ; see also Saturday Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191, 1193 (7th Cir. 1987) (noting that the copyright protection accorded to derivative works is limited to that portion of the work adding incremental originality beyond the preexisting work)." }, { "docid": "23543211", "title": "", "text": "Act that disassembly of copyrighted object code is, as a matter of law, a fair use of the copyrighted work if such disassem-bly provides the only means of access to those elements of the code that are not protected by copyright and the copier has a legitimate reason for seeking such access. Accordingly, we hold that Sega has failed to demonstrate a likelihood of success on the merits of its copyright claim. Because on the record before us the hardships do not tip sharply (or at all) in Sega’s favor, the preliminary injunction issued in its favor must be dissolved, at least with respect to that claim. A. Intermediate Copying We have previously held that the Copyright Act does not distinguish between unauthorized copies of a copyrighted work on the basis of what stage of the alleged infringer’s work the unauthorized copies represent. Walker v. University Books, 602 F.2d 859, 864 (9th Cir.1979) (“[T]he fact that an allegedly infringing copy of a protected work may itself be only an inchoate representation of some final product to be marketed commercially does not in itself negate the possibility of infringement.”). Our holding in Walker was based on the plain language of the Act. Section 106 grants to the copyright owner the exclusive rights “to reproduce the work in copies”, “to prepare derivative works based upon the copyrighted work”, and to authorize the preparation of copies and derivative works. 17 U.S.C. § 106(l)-(2). Section 501 provides that “[ajnyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 118 ... is an infringer of the copyright.” Id. § 501(a). On its face, that language unambiguously encompasses and proscribes “intermediate copying”. Walker, 602 F.2d at 863-64; see also Walt Disney Productions v. Filmation Associates, 628 F.Supp. 871, 875-76 (C.D.Cal.1986). In order to constitute a “copy” for purposes of the Act, the allegedly infringing work must be fixed in some tangible form, “from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 101." } ]

[ { "docid": "7908355", "title": "", "text": "at trial, a prevailing defendant, unlike a prevailing plaintiff, may receive fees under 42 U.S.C. § 1988 only when the Court finds that the action “was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate it [sic] after it clearly became so.” Christiansburg Garment Co. v. Equal Employment Opportunity Comm’n[], 434 U.S. 412, 422, 98 S.Ct. 694, 700-01, 54 L.Ed.2d 648 (1978). . Memorandum Decision dated October 15, 1996, at 11. The court stated its view that “[a]bout the only evidence offered with respect to Vertullo was that he read .a letter from Fletcher ... at a Planning Board meeting,” id. at 5 n. 4, and that the action against Vertullo was unreasonable and groundless. However, the plaintiffs’ success on appeal diminishes the lustre of these defendants’ success. Moreover, it clearly suggests that the appellate court (or at least the panel which remanded the case) would not approve fees for the prevailing defendants in any event, id. at 11. This appeal followed. II; DISCUSSION On appeal, Vertullo contends principally that plaintiffs should be ordered to pay his attorneys’ fees because the district court stated that the claims against him were “unreasonable and groundless.” He argues that that statement constitutes a factual finding that may not be overturned because it is not clearly erroneous, and that the district court was not permitted to deny his request for an award of fees solely on the basis that this Court was likely to reverse such an award. We conclude that Vertullo’s characterization of the court’s statement as a finding of fact is erroneous; that the district court’s characterization of plaintiffs’ claims as “unreasonable and groundless” is contradicted by the record; and that Vertullo was not entitled to an award of fees. In a civil rights action under 42 U.S.C. § 1985(3), the court has discretion to award reasonable attorneys’ fees to “the prevailing party.” 42 U.S.C. § 1988(b). Under this provision, as interpreted by the Supreme Court, fees are routinely awarded to a prevailing plaintiff who obtains some significant measure of relief, but are not so readily available to a prevailing" } ]

[ { "docid": "7951914", "title": "", "text": "May 4, 2004, his attorney sent three letters to Edgerly’s attorney requesting that he dismiss Schiff because the Officers’ depositions established that Schiff was not liable for the arrest or search. Edgerly’s attorney declined to do so. After the district court ordered summary judgment on October 14, 2004, Schiffs attorney filed a motion for attorneys’ fees pursuant to 42 U.S.C. § 1988. The district court granted Schiffs motion in part, awarding him reasonable attorneys’ fees starting from May 11, 2004, when the parties completed discovery. The court found that it was reasonable for Edgerly not to dismiss Schiff before completing discovery, since it was possible that Schiffs deposition would reveal that he had a more significant role in training or supervising the Officers than the Officers’ depositions had disclosed. The court found, however, that it was unreasonable for Edgerly not to dismiss Schiff after his deposition confirmed that there was no basis for supervisorial liability. We conclude that the district court did not abuse its discretion in awarding reasonable post-discovery attorneys’ fees to Schiff. E. Sanctions We also review a district court’s imposition of sanctions for abuse of discretion. Patelco Credit Union v. Sahni, 262 F.3d 897, 912-13 (9th Cir.2001). “A district court abuses its discretion in imposing sanctions when it bases its decision on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id. at 913. A motion for reconsideration is sanetionable if it is frivolous, but not if it raises new issues. See Conn v. Borjorquez, 967 F.2d 1418, 1421 (9th Cir.1992). Here, the district court awarded sanctions against Edgerly and his attorney, Gregory Haynes, under Federal Rule of Civil Procedure 11(b) on the basis of its finding that they filed two frivolous motions for reconsideration. Thus, the court awarded sanctions in the amount of attorneys’ fees that Schiff incurred in responding to the motions. We conclude that the district court did not abuse its discretion in imposing these sanctions. The court did not commit any legal error and its finding that Edgerly and Haynes’ two motions for reconsideration did not raise" }, { "docid": "21015014", "title": "", "text": "disturb an award of attorney fees pursuant to § 1988 unless we conclude that the court abused its discretion in awarding them. Hadix v. Johnson, 65 F.3d 532, 534 (6th Cir.1995). “Because of ‘the district court’s superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters,’ an award of attorneys’ fees under § 1988 is entitled to substantial deference.” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). “In any action or proceeding to enforce a provision of section ... 1983 ..., the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs....” 42 U.S.C. § 1988(b) (West Supp.2002). However, [a]n award of attorney fees against a losing plaintiff in a civil rights action is an extreme sanction, and must be limited to truly egregious cases of misconduct .... A prevailing defendant should only recover upon a finding by the district court that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith. Riddle v. Egensperger, 266 F.3d 542, 547 (6th Cir.2001) (internal quotation marks and citations omitted). “[I]t is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Therefore, “[t]o determine whether a claim is frivolous, unreasonable or groundless, the court must determine plaintiffs basis for filing the suit.” Riddle, 266 F.3d at 548. Properly focused on our task of “deter-min[ing the] plaintiffs basis for filing the suit,” we again turn to the undisputed facts in front of Tahfs’s attorney at the time the complaint was filed. Much of what we have said with regard to the Rule 11 basis for awarding attorney fees on a sanction applies here, although the criteria for the two bases are not identical. In light of" }, { "docid": "5657394", "title": "", "text": "summary judgment. The district court was familiar with the Plaintiffs allegations and demonstrated a thorough knowledge of the factual and legal issues in the case. Because nothing in the record indicates that a hearing was needed to assist the court in determining whether sanctions were warranted, we hold that the district court did not abuse its discretion in not conducting an evidentiary hearing. B. We next consider the Appellants’ claim that the district court improperly awarded attorney fees against Wilson-Simmons pursuant to 42 U.S.C. § 1988 because her claims were not frivolous, unreasonable, or without foundation. We review a district court’s award of attorneys fees under 42 U.S.C. § 1988 based on an abuse of discretion standard. Reed v. Rhodes, 179 F.3d 453, 469 n. 2 (6th Cir.1999). “In light of a district court’s superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters, an award of attorneys’ fees under § 1988 is entitled to substantial deference.” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)) (internal quotation marks omitted). Under 42 U.S.C. § 1988, a district court may in its discretion award attorney fees to a prevailing defendant upon a finding that “the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Wayne v. Village of Sebring, 36 F.3d 517, 530 (6th Cir.1994) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978)) (internal quotation marks omitted), cert. denied, 514 U.S. 1127, 115 S.Ct. 2000, 131 L.Ed.2d 1001 (1995). “[A] district court must resist the urge to engage in post hoc reasoning and the hindsight logic of concluding a suit is without foundation because the plaintiff ultimately does not prevail.” Smith v. Smythe-Cramer Co., 754 F.2d 180, 183 (6th Cir.) (quoting Christiansburg Garment Co., 434 U.S. at 421-22, 98 S.Ct. at 700), cert. denied, 473 U.S. 906, 105 S.Ct. 3530, 87 L.Ed.2d 654 (1985). A “plaintiff should not be assessed his opponent’s attorney fees unless the court" }, { "docid": "22645723", "title": "", "text": "at 441. We find that the district court did not abuse its discretion in awarding attorneys’ fees to Ryan and Strong. Pursuant to 42 U.S.C. § 1988 (“ § 1988”) a district court may award attorneys’ fees to a prevailing defendant in a civil rights case if the plaintiffs claims are “unreasonable, frivolous, meritless, or vexatious.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978); Ellis, 625 F.2d at 230. In asserting their conspiracy claim, appellants relied solely on allegations that Judge Ramerman’s decisions were incorrect. As set forth above, such allegations are insufficient as a matter of law to support a claim under § 1983. Further, had appellants made a reasonable inquiry into the applicable facts and law before filing their case they would have discovered the insufficiency of their civil rights claim. Thus, the district court did not abuse its discretion in determining that appellants’ conspiracy claim was meritless and frivolous so as to warrant sanctions under § 1988. Relying on a rule in Lockary v. Kayfetz, 974 F.2d 1166 (9th Cir.1992), appellants argue that the amount requested by Ryan and Strong, $10,915, improperly included the costs of preparing and briefing their motion for attorneys’ fees. Under Lockary, the attorneys’ fees and costs associated with bringing a motion for sanctions under Fed. R.Civ.P. 11 should not be included in the award because they are not direct costs of opposing an offending pleading. 974 F.2d at 1177-78. We followed this rule in Zimmerman v. Bishop Estate, 25 F.3d 784, 790 (9th Cir.1994) and Pan-Pacific v. Pacific Union, 987 F.2d 594, 597 (9th Cir.1993). The rule in Lockary, enunciated in 1992, is no longer good law. The December 1, 1993 amendment to Rule 11 specifically allows a district court to include the costs associated with sanctions proceedings: “the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion.” Fed.R.Civ.P. 11(c)(1)(A). This court has previously noted that the plain text of Rule 11 supercedes the former rule in this Circuit" }, { "docid": "13231751", "title": "", "text": "award, which the District Court granted in October 2008. In November 2008, Arnold & Itkin appealed the confirmation of the award. Because the appeal was defective, Arnold & Itkin refíled a notice of appeal in January 2009, but voluntarily withdrew that appeal in April 2009. In May 2009, Prospect moved pursuant to 28 U.S.C. § 1927 and the District Court’s inherent power to recover attorneys’ fees and expenses associated with its litigation of the motion to compel arbitration, the Texas TRO, the Rule 60(b) motion, confirmation of the arbitral awards both before the District Court and on appeal, and the sanctions motion itself. After briefing and oral argument, the District Court granted the motion for sanctions in part. It found that Arnold & Itkin had acted in bad faith and engaged in frivolous and vexatious litigation in seeking the Texas TRO, bringing the Rule 60(b) motion and subsequent appeal, and opposing Prospect’s petition to confirm the arbitral award. Prospect then filed a proposed judgment for $354,559 in fees incurred in connection with all of these matters. In June 2010, the District Court entered the proposed judgment against Arnold & Itkin and further directed the firm to “submit this Court’s Sanctions Order with any future applications for admission pro hac vice in the Southern District of New York.” We interpret this directive to apply to every Arnold & Itkin lawyer who seeks to be admitted pro hac vice in the Southern District of New York. This appeal followed. DISCUSSION The District Court imposed sanctions against Arnold & Itkin pursuant to both its inherent powers and 28 U.S.C. § 1927. In either case, we review the sanctions order for abuse of discretion, Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 333 (2d Cir.1999), to “ensure that the district court’s sanctions are not based on ‘an erroneous view of the law or on a clearly erroneous assessment of the evidence,’ ” Wolters Kluwer Fin. Servs., Inc. v. Scivantage, 564 F.3d 110, 113 (2d Cir.2009) (quoting Schlaifer Nance, 194 F.3d at 333). Because “ ‘the trial court [imposing sanctions] may act" }, { "docid": "23638326", "title": "", "text": "33117364, at *4 (S.D.N.Y. May 24, 1999) (“Salovaara VI ”). In addition, “as an alternative basis for its decision,” id. at *5, the Court imposed a sanction of $92,343.50, equal to Eckert’s expenses in connection with the second motion for summary judgment, on Salovaara and Shoemaker jointly and severally under Rule 11 and on Shoemaker under § 1927, see Salovaara VI, 1999 WL 33117364, at *5-9. Finally, the District Court denied Salovaara’s cross-motion for fees. See id. at *4-5. Final judgment was entered on June 1, 1999, and this appeal followed. II. On appeal, Salovaara and Shoemaker argue that: (1) Eckert was not entitled to fees under ERISA and that, in any event, the District Court’s fee award was excessive; (2) the District Court erred in. denying Salovaara’s cross-motion for fees for the preliminary injunction motion; (3) the District Court erred in imposing the sanction on Salovaara and Shoemaker under Rule 11; and (4) the District Court erred in imposing the sanction on Shoemaker under § 1927. We review each of the District Court’s decisions for abuse of discretion. See, e.g., Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869, 871 (2d Cir.1987) (decision to grant or deny attorney’s fees under ERISA); Anita Founds., Inc. v. ILGWU Nat’l Retirement Fund, 902 F.2d 185, 191 (2d Cir.1990) (the size of an attorney’s fee award under ERISA); Simon DeBartolo Group, L.P. v. Richard E. Jacobs Group, Inc., 186 F.3d 157, 167 (2d Cir.1999) (Rule 11); Perry v. Ethan Allen, Inc., 115 F.3d 143, 154 (2d Cir.1997) (Rule 11 and § 1927). This standard of review, however, “is not as simple as it may appear at first blush.” Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 333 (2d Cir.1999). That is, although the decision to impose sanctions — and, a fortiori, to grant attorney’s fees — -“is uniquely within the province of a district court, we nevertheless need to ensure that any such decision is made with restraint and discretion.” Id. at 334. A. Attorney’s Fees Under ERISA Pursuant to 29 U.S.C. § 1132(g)(1), a court has discretion" }, { "docid": "14235099", "title": "", "text": "admitted that Dr. Paller testified that although he didn’t know where the son’s lesions were coining from, he thought that “these are ulcers that either he or somebody else is inducing.” No reasonable jury could infer a conspiracy from the mere fact of the discrepancies in the transcripts. This conclusion is bolstered by the undisputed evidence that neither Casady nor Sosnowski ever communicated with Magnabosco. Because Cooney failed to produce sufficient evidence from which a reasonable jury could infer a conspiracy, the defendants were entitled to judgment as a matter of law on the § 1983 claim. And because she had insufficient evidence to withstand summary judgment on her § 1983 claim, she also had insufficient evidence with respect to her claim for intentional infliction of emotional distress. She appears to acknowledge as much in her briefs on appeal. Therefore, the district court properly granted summary judgment to the defendants. B. The District Court Did Not Abuse Its Discretion in Denying Defendants’ Request for Fees, Costs, and Sanctions The defendants petitioned for attorneys’ fees under § 1988 and Rule 11 sanctions. Section 1988 provides that in § 1983 actions “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b). The statute commits the decision whether to award attorneys’ fees to the district court’s sound judgment. Khan v. Gallitano, 180 F.3d 829, 837 (7th Cir.1999). We review the denial of fees in this context for abuse of discretion, although we review legal questions de novo. Id. Prevailing defendants maybe awarded attorneys’ fees only if the plaintiffs “claim was frivolous, unreasonable, or groundless, or if the plaintiff continued to litigate after it clearly became so.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978); see also Hughes v. Rowe, 449 U.S. 5, 14-15, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam) (applying Christians-burg under § 1988). The plaintiffs action must be groundless or without foundation (i.e., meritless), but “[t]he fact that a plaintiff may ultimately lose his case is not" }, { "docid": "16837302", "title": "", "text": "simply never made the argument. In its reply brief, AMC admitted that “the district court did state that the finding of litigation misconduct constituted an independent basis for finding the case exceptional and awarding attorneys fees.” Appellant AMC’s Reply Br. 1 (emphasis added). Moreover, the district court made clear that AMC itself was responsible for some of the litigation misconduct. The court stated, “Even if the inequitable conduct ruling is set aside, however, several litigation decisions made by AMC and its counsel compel the determination that this case is extraordinary and attorney fees are merited.” AMC IV, 2008 WL 2787981, at *11 (emphasis added). Because AMC never argued that that the district court improperly awarded attorney’s fees based on litigation misconduct and the district coxirt relied on litigation misconduct as an independent ground, we affirm the district court’s award of attorney’s fees against AMC for $1,509,976.16 plus interest. III. Attorney Sanctions Under 28 U.S.C. § 1927 Mr. Jaroslawiez argues that the district court improperly sanctioned him for attorney’s fees under 28 U.S.C. § 1927. Under Second Circuit law, an appellate court reviews a district court’s imposition of sanctions under 28 U.S.C. § 1927 for abuse of discretion. Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 333 (2d Cir.1999). A district court can require an attorney to pay the opposing party’s reasonable costs, expenses, and attorney’s fees when that attorney “so multiplies the proceedings in any case unreasonably and vexatiously.” 28 U.S.C. § 1927 (2006). In the Second Circuit, a court may only award attorney’s fees under 28 U.S.C. § 1927 after finding “clear evidence that (1) the offending party’s claims were entirely without color, and (2) the claims were brought in bad faith — that is, motivated by improper purposes such as harassment or delay.” Eisemann v. Greene, 204 F.3d 393, 396 (2d Cir.2000) (per curiam) (internal quotation marks omitted); see also Gollomp v. Spitzer, 568 F.3d 355, 368 (2d Cir.2009). “Bad faith is the touchstone of an award under [28 U.S.C. § 1927].” Revson v. Cinque & Cinque, P.C., 221 F.3d 71, 79 (2d Cir.2000) (quoting" }, { "docid": "2650706", "title": "", "text": "fourth amendment. III. On cross-appeal, the defendants argue that the district court abused its discretion in not granting them attorney’s fees under 42 U.S.C. § 1988 or Federal Rule of Civil Procedure 11. Pursuant to section 1988, a district court may award attorney’s fees to prevailing defendants if “ ‘the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.’ ” Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978)). “The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees.” Id., 101 S.Ct. at 178. Similarly, a court may require a party or its counsel to pay reasonable attorney’s fees to the prevailing party pursuant to Federal Rule of Civil Procedure 11 as a sanction for filing an action that has no factual or legal foundation. See Donaldson v. Clark, 819 F.2d 1551, 1555-56 (11th Cir.1987) (en banc). Simply because the district court granted the defendants’ motion for summary judgment does not mean that the plaintiffs’ action was frivolous. As the district court pointed out in its order denying fees, in ruling on the motion for summary judgment, it “reviewed a great deal of caselaw [sic] on the issue of when deadly force constitutes unreasonable and excessive force within the meaning of the Constitution,” and “did not find any case with a fact situation similar to the one at hand.” We agree with the district court that although the plaintiffs’ section 1983 suit does not merit relief, their causes of action were plausible. Given this, we cannot say that the district court abused its discretion in denying attorney fees under section 1988 or Rule 11. Cf. Hughes v. Rowe, 449 U.S. at 15, 101 S.Ct. at 179 (allegations properly dismissed for failure to state a claim deserved and received careful attention of the courts and thus were not groundless or without foundation). For the foregoing reasons, the judgment" }, { "docid": "22818560", "title": "", "text": "of Warhol, 194 F.3d 323, 333 (2d Cir.1999) (internal quotation marks omitted). However, we also appreciate that “[a] troublesome aspect of a trial court’s power to impose sanctions ... is that the trial court may act as accuser, fact finder and sentencing judge, not subject to restrictions of any procedural code and at times not limited by any rule of law governing the severity of sanctions that may be imposed.” Id. at 334 (quoting Mackler Prods., Inc. v. Cohen, 146 F.3d 126, 128 (2d Cir.1998)). Accordingly, “although the decision to impose sanctions is uniquely within the province of a district court, we nevertheless need to ensure that any such decision is made with restraint and discretion.” Schlaifer Nance, 194 F.3d at 334. For the reasons set forth below, we conclude that the district court erroneously awarded attorneys’ fees and lacked authority to impose Rule 11 sanctions of any sort for an asserted discovery failure. Pursuant to Fed.R.Civ.P. 11(c), a court may impose sanctions either by motion or on its own initiative. In this case, defendants did not move for sanctions in accordance with Fed.R.Civ.P. 11(c)(1)(A). Rule 11(c)(1)(B) provides that “[o]n its own initiative, the court may enter an order describing the. specific conduct that appears to violate [Rule 11(b) ] and directing an attorney, law firm, or party to show cause why it has not violated” the rule. Fed. R.Civ.P. 11(c)(1)(B); see L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 89 (2d Cir.1998). This rule embodies the due process principle that “a party is entitled to notice of the provision under which sanctions are sought, in order that he be forewarned as to the standard under which his conduct is to be evaluated.” L.B. Foster, 138 F.3d at 89; see also Nuwesra v. Merrill Lynch, Fenner & Smith, Inc., 174 F.3d 87, 92 (2d Cir.1999) (per curiam). The district court did not enter an order to show cause and thus denied Baffa notice and opportunity to respond. See Nuwesra 174 F.3d at 92. Moreover, absent a specific motion for attorneys’ fees, the court only had authority to order" }, { "docid": "7593964", "title": "", "text": "the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” 42 U.S.C.A. § 1988(b) (1994). We review an award of attorney’s fees under § 1988 for abuse Of discretion. See Associated Builders & Contractors of Louisiana, Inc. v. Orleans Parish Sch. Bd., 919 F.2d 374, 379 (5th Cir.1990). A district court abuses its discretion if it awards sanctions based “on an erroneous view of the law or a clearly erroneous assessment of the evidence.” See Esmark Apparel, Inc. v. James, 10 F.3d 1156, 1164 (5th Cir.1994). A. Timeliness The district court entered final judgment dismissing the action on July 29, 1997. Bogalusa moved for attorney’s fees and costs under § 1988 twenty-seven days, later on August 25, 1997. Under revised Federal Rule 54(d)(2)(B), “[ujnless otherwise provided by statute or order of the court, the motion [for attorneys’ fees] must be filed and served no later than 14 days after entry of judgment_” Fed.R.Civ.P. 54(d)(2)(B). Local Rule 54.3 requires a party to move for fees “[w]ithin 30 days after receiving notice of entry of judgmént_” Unif. Local R. U.S. Dist. Cts. E., M., & W. Dists. La 54.3. This local rule is a court order satisfying the “unless” clause of Federal Rule 54(d)(2)(B). See Jones v. Central Bank, 161 F.3d 311, 312-13 (5th Cir.1998). Since the motion was timely under the local rule, and therefore under the “unless” clause of the Federal Rule, the district court did not abuse its discretion in granting Bogalusa’s motion for attorney’s fees. B. Substantive Grounds The district court should award the prevailing defendant attorney’s fees only if the Plaintiffs’ action was “frivolous, unreasonable, or without foundation.” White v. South Park Indep. School Dist., 693 F.2d 1163, 1169-70 (1982) (citation omitted). A suit is frivolous if it is “so lacking in arguable merit as to be groundless or without founda-tion_” See Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1140-41 (5th Cir.1983). In determining whether a suit is frivolous, the district court should look to factors such as whether the Plaintiffs established a prima facie case, whether the" }, { "docid": "22994282", "title": "", "text": "and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4)the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. “[T]he standard for triggering the award of fees under Rule 11 is objective unreasonableness,” Margo v. Weiss, 213 F.3d 55, 65 (2d Cir.2000), and is not based on the subjective beliefs of the person making the statement. We review a district court’s imposition of Rule 11 sanctions for abuse of discretion. Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 333 (2d Cir.1999). This deferential standard is applicable to the review of Rule 11 sanctions because, as in many other contexts, the district court is “[f]amiliar with the issues and litigants” and is thus “better situated than the court of appeals to marshal the pertinent facts and apply [a] fact-dependent legal standard.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 402, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). When reviewing Rule 11 sanctions, however, “we nevertheless need to ensure that any [sanctions] decision is made with restraint.” Schlaifer Nance & Co., 194 F.3d at 334; cf. Mackler Prods., Inc. v. Cohen, 146 F.3d 126, 128 (2d Cir.1998) (noting that one “troublesome aspect of a trial court’s power to impose sanctions ... is that the trial court may act as accuser, fact finder and sentencing judge”). “A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Cooter & Gell, 496 U.S. at 405, 110 S.Ct. 2447; see also Schlaifer Nance & Co., 194 F.3d at 333. The district court held that Cello and the Sanctioned Counsel violated Rule 11 in three distinct ways: (A) by making unsupported factual contentions and unwarranted denials of factual contentions in violation of Rule 11(b)(3) and (4); (B) by putting forward objectively unreasonable legal arguments and defenses in violation of Rule" }, { "docid": "23638327", "title": "", "text": "for abuse of discretion. See, e.g., Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869, 871 (2d Cir.1987) (decision to grant or deny attorney’s fees under ERISA); Anita Founds., Inc. v. ILGWU Nat’l Retirement Fund, 902 F.2d 185, 191 (2d Cir.1990) (the size of an attorney’s fee award under ERISA); Simon DeBartolo Group, L.P. v. Richard E. Jacobs Group, Inc., 186 F.3d 157, 167 (2d Cir.1999) (Rule 11); Perry v. Ethan Allen, Inc., 115 F.3d 143, 154 (2d Cir.1997) (Rule 11 and § 1927). This standard of review, however, “is not as simple as it may appear at first blush.” Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 333 (2d Cir.1999). That is, although the decision to impose sanctions — and, a fortiori, to grant attorney’s fees — -“is uniquely within the province of a district court, we nevertheless need to ensure that any such decision is made with restraint and discretion.” Id. at 334. A. Attorney’s Fees Under ERISA Pursuant to 29 U.S.C. § 1132(g)(1), a court has discretion to award attorney’s fees “to either party” in an ERISA action. Like many of our sister circuits, we have held that the decision of whether to award attorney’s fees is ordinarily based on five factors: (1) the degree of the offending party’s culpability or bad faith, (2) the ability of the offending party to satisfy an award of attorney’s fees, (3) whether an award of fees would deter other persons from acting similarly under like circum stances, (4) the relative merits of the parties’ positions, and (5) whether the action conferred a common benefit on a group of pension plan participants. Chambless, 815 F.2d at 871; see also, e.g., Todd v. AIG Life Ins. Co., 47 F.3d 1448, 1458 (5th Cir.1995); Gray v. New England Tel. & Tel. Co., 792 F.2d 251, 257-59 (1st Cir.1986); Secretary of Dep’t of Labor v. King, 775 F.2d 666, 669 (6th Cir.1985); Marquardt v. North Am. Car Corp., 652 F.2d 715, 717 (7th Cir.1981); Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir.1980). These factors are" }, { "docid": "22645722", "title": "", "text": "that would support their § 1983 claim. Therefore, the district court did not err in rejecting appellants’ request for further discovery. C. Award of Attorneys’ Fees Following receipt of the order granting summary judgment, Ryan and Strong filed a motion for attorneys’ fees, requesting $10,915. Ryan and Strong made their request pursuant to Fed.R.Civ.P. 11, 42 U.S.C. § 1988, RCW 4.24.510 and the court’s inherent powers. The district court granted the motion and awarded Ryan and Strong $10,-915. However, the district court failed to identify the authority for the award or specify reasons justifying the award and the amount awarded. Therefore, this court remanded the case for the sole purpose of allowing the district court an opportunity to explain its decision to award attorneys’ fees. On remand, District Judge Carolyn Dimmick signed an order setting forth the reasons for the award of attorneys’ fees under Fed. R.Civ.P. 11, 42 U.S.C. § 1988, RCW 4.24.510 and the court’s inherent powers. This court reviews a grant of attorneys’ fees for an abuse of discretion. Warren, 58 F.3d at 441. We find that the district court did not abuse its discretion in awarding attorneys’ fees to Ryan and Strong. Pursuant to 42 U.S.C. § 1988 (“ § 1988”) a district court may award attorneys’ fees to a prevailing defendant in a civil rights case if the plaintiffs claims are “unreasonable, frivolous, meritless, or vexatious.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978); Ellis, 625 F.2d at 230. In asserting their conspiracy claim, appellants relied solely on allegations that Judge Ramerman’s decisions were incorrect. As set forth above, such allegations are insufficient as a matter of law to support a claim under § 1983. Further, had appellants made a reasonable inquiry into the applicable facts and law before filing their case they would have discovered the insufficiency of their civil rights claim. Thus, the district court did not abuse its discretion in determining that appellants’ conspiracy claim was meritless and frivolous so as to warrant sanctions under § 1988. Relying on a rule in Lockary" }, { "docid": "23050706", "title": "", "text": "claims only. The district court declined to exercise supplemental jurisdiction over the remaining state law claims, and dismissed them without prejudice pursuant to 28 U.S.C. § 1367(c), a dismissal contested by defendants. Defendants sought reconsideration of the district court’s dismissal of plaintiffs state law claims on the ground that the court retained jurisdiction, and equitable considerations warranted retention of jurisdiction. Defendants also filed a motion for attorneys fees and a bill of costs. Similarly, plaintiff filed a motion for attorneys’ fees, costs and expenses. The district court denied defendants’ motion for reconsideration. This appeal followed. This ease presents two issues only. First, did the district court err in denying without explanation the bill of costs sought by appellants pursuant to Rule 54(d) of the Federal Rules of Civil Procedure? Second, did the district court err in denying without explanation appellants’ motion for attorneys’ fees brought under 42 U.S.C. § 1988 or Rule 11 of the Federal Rules of Civil Procedure? There is no claim here that the district court abused its discretion in dismissing all state law claims. We conclude that the answer to both questions is “yes,” and thus, remand this case to the district court to award costs and attorneys’ fees in an appropriate amount or to explain its decision to award no costs or fees. STANDARD OF REVIEW We review the factual findings underlying a district court’s determination regarding prevailing party status for clear error. Church of Scientology Flag Serv., Org., Inc. v. City of Clearwater, 2 F.3d 1509, 1512-13 (11th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 54, 130 L.Ed.2d 13 (1994). “Whether the facts as found suffice to render the plaintiff a ‘prevailing party’ is a legal question reviewed de novo.” Church of Scientology, 2 F.3d at 1513. Finally, a district court’s determination that a party has prevailed for purposes of awarding attorneys’ fees is reviewed for abuse of discretion. Id. I. Bill of Costs The district court’s order denying attorneys’ fees and costs in this case stated: “[a]f-ter careful consideration Plaintiffs and Defendant’s motions for attorney’s fees, costs and expenses are hereby DENIED.”" }, { "docid": "13105665", "title": "", "text": "CARL E. STEWART, Circuit Judge: Defendant-Appellant Larkin T. Riser (“Riser”) appeals the district court’s conclusion that, notwithstanding the Plaintiffs-Appellees’ voluntary dismissal with prejudice under Fed. R. Crv. P. 41(a) of their civil rights action before an adjudication on the merits, he is not a “prevailing party” within the meaning of 42 U.S.C. § 1988(b) (“ § 1988”) and is therefore not entitled to an award of attorney’s fees. For the reasons assigned below, we vacate the district court’s judgment and remand. FACTUAL AND PROCEDURAL HISTORY Riser was elected Sheriff of Webster Parish, Louisiana, by defeating Tommy Kemp (“Kemp”), the chief deputy to Riser’s predecessor, Sheriff Royce McMahen. Several of the deputies in the sheriffs office, including the plaintiffs, publicly supported Kemp during the election. After assuming office, Riser terminated some of the plaintiffs and refused to renew the commissions of other plaintiffs. As a result, the plaintiffs brought a 42 U.S.C. § 1983 action against Riser claiming political retaliation. After a year of litigation, the plaintiffs voluntarily moved to dismiss their claims with prejudice under Fed.R.CivP. 41(a). The district court granted the motion. Subsequently, Riser filed for attorney’s fees under The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, claiming that he was a prevailing party and that the plaintiffs’ civil rights action was groundless. A magistrate judge issued a report and recommendation that pronounced the following rule of law: “Absent any ruling on the merits of the claim by summary judgment or trial, a defendant is not a § 1988 prevailing party when the plaintiff voluntarily dismisses his claims.” As such, the magistrate judge recommended that Riser’s claim for attorney’s fees be denied. The district court adopted the magistrate judge’s report and recommendation in toto. Riser now appeals the district court’s judgment. DISCUSSION I. Standard of Review We review a denial of § 1988 attorney’s fees for abuse of discretion. Cruz v. Hauck, 762 F.2d 1230, 1233 (6th Cir.1985). The district court’s underlying findings of fact are subject to review for clear error. Wilson v. Mayor of St. Francisville, 135 F.3d 996, 998 (5th Cir.1998);" }, { "docid": "385948", "title": "", "text": "band substantially similar to those worn by plaintiffs in this case. D. Attorneys’ Fees Finally, defendants argue that the district court erred in awarding plaintiffs attorneys’ fees and costs. “We review de novo both the determination of whether a litigant is a prevailing party, and the legal issues related to the award of attorney fees.” Advantage Media, L.L.C. v. City of Hopkins, 511 F.3d 833, 836 (8th Cir.2008) (internal quotations and citations omitted). We review the actual award of attorneys’ fees and costs for abuse of discretion. Thompson v. Wal-Mart Stores, Inc., 472 F.3d 515, 516 (8th Cir.2006). And, we review the district court’s application of its local rules for abuse of discretion. Northwest Bank and Trust Co. v. First Ill. Nat’l Bank, 354 F.3d 721, 725 (8th Cir.2003). Pursuant to 42 U.S.C. § 1988(b) “[i]n any action or proceeding to enforce a provision of seetion[ ] ... 1983 ... of this title ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs....” Defendants first argue that the district court should have dismissed the applications for fees and costs because plaintiffs failed to file the proper pleadings with the district court. Defendants argue that plaintiffs violated Federal Rule of Civil Procedure 54(d)(2) and local rules by titling the document that they filed an “application” instead of a “motion.” According to Federal Rule of Civil Procedure 54(d)(2)(A), “[a] claim for attorney’s fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.” Eastern District of Arkansas Local Rule 54.1(a) states “[i]n any case in which attorney’s fees are recoverable under the law applicable to that case, a motion for attorney’s fees shall be filed with the Clerk----” Defendants also argue that plaintiffs’ application should have been dismissed because it was filed as one document and Eastern District of Arkansas Local Rule 7.2(a) requires that “[a]ll motions except those mentioned in paragraph (d) shall be accompanied by a brief consisting of" }, { "docid": "22818559", "title": "", "text": "motions for intervention as class representatives. See Baffa v. Donaldson, 185 F.R.D. 172 (S.D.N.Y.1999). When counsel for plaintiffs requested time to consider the opinion before proceeding with the conference, the court sua sponte dismissed the action. Judge Motley cited the “failure of plaintiffs and plaintiffs’ counsel to proceed with this action after this court’s order of 12/7/98 and for failure of plaintiffs’ counsel to pay the $45,000 agreed to by the parties in lieu of a court imposed sanction.” This appeal followed. DISCUSSION I. Sanctions A. Rule 11 “This court reviews for abuse of discretion a district court’s award of sanctions under its inherent powers and under Fed.R.Civ.P. 11.” Ametex Fabrics, Inc. v. Just In Materials, Inc., 140 F.3d 101, 108-09 (2d Cir.1998). We have recognized that “this deferential standard gives recognition to the premise that the district court is better situated than the court of appeals to marshal the pertinent facts and apply the fact-dependent legal standard that informs its determination as to whether sanctions are warranted.” Schlaifer Nance & Co., Inc. v. Estate of Warhol, 194 F.3d 323, 333 (2d Cir.1999) (internal quotation marks omitted). However, we also appreciate that “[a] troublesome aspect of a trial court’s power to impose sanctions ... is that the trial court may act as accuser, fact finder and sentencing judge, not subject to restrictions of any procedural code and at times not limited by any rule of law governing the severity of sanctions that may be imposed.” Id. at 334 (quoting Mackler Prods., Inc. v. Cohen, 146 F.3d 126, 128 (2d Cir.1998)). Accordingly, “although the decision to impose sanctions is uniquely within the province of a district court, we nevertheless need to ensure that any such decision is made with restraint and discretion.” Schlaifer Nance, 194 F.3d at 334. For the reasons set forth below, we conclude that the district court erroneously awarded attorneys’ fees and lacked authority to impose Rule 11 sanctions of any sort for an asserted discovery failure. Pursuant to Fed.R.Civ.P. 11(c), a court may impose sanctions either by motion or on its own initiative. In this case, defendants" }, { "docid": "16837303", "title": "", "text": "Second Circuit law, an appellate court reviews a district court’s imposition of sanctions under 28 U.S.C. § 1927 for abuse of discretion. Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 333 (2d Cir.1999). A district court can require an attorney to pay the opposing party’s reasonable costs, expenses, and attorney’s fees when that attorney “so multiplies the proceedings in any case unreasonably and vexatiously.” 28 U.S.C. § 1927 (2006). In the Second Circuit, a court may only award attorney’s fees under 28 U.S.C. § 1927 after finding “clear evidence that (1) the offending party’s claims were entirely without color, and (2) the claims were brought in bad faith — that is, motivated by improper purposes such as harassment or delay.” Eisemann v. Greene, 204 F.3d 393, 396 (2d Cir.2000) (per curiam) (internal quotation marks omitted); see also Gollomp v. Spitzer, 568 F.3d 355, 368 (2d Cir.2009). “Bad faith is the touchstone of an award under [28 U.S.C. § 1927].” Revson v. Cinque & Cinque, P.C., 221 F.3d 71, 79 (2d Cir.2000) (quoting United States v. Int’l Bhd. of Teamsters, 948 F.2d 1338, 1345 (2d Cir.1991)). The Second Circuit has established strict requirements for both the coloriessclaim and bad-faith requirements. “[A] claim is entirely without color when it lacks any legal or factual basis.” Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 337 (2d Cir.1999) (internal quotation marks omitted). For a finding of bad faith, the Second Circuit requires “a high degree of specificity in the factual findings.” Dow Chem. Pac. Ltd. v. Rascator Maritime S.A., 782 F.2d 329, 344 (2d Cir.1986). A court may only infer bad faith “if actions are so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose such as delay.” Schlaifer Nance, 194 F.3d at 336 (internal quotation marks omitted). Under the Second Circuit’s strict standard, the district court abused its discretion by sanctioning Mr. Jaroslawicz under 28 U.S.C. § 1927. The district court may have had good reason to sanction Mr. Jaroslawicz, but it failed to find that Mr. Jaroslawicz" }, { "docid": "7938525", "title": "", "text": "and unreasonable. We review the district court’s award of fees under 42 U.S.C. § 1988(b) for an abuse of discretion. Dillon v. Brown County, Neb., 380 F.3d 360, 363 (8th Cir. 2004). “An abuse of discretion occurs if the district court rests its conclusion on clearly erroneous factual findings or if its decision relies on erroneous legal conclusions.” Vonage Holdings Corp. v. Neb. Pub. Serv. Comm’n, 564 F.3d 900, 904 (8th Cir.2009). “We will not disturb a district court’s discretionary decision if it remains within the range of choices available, accounts for all relevant factors, does not rely on any irrelevant factors, and does not constitute a clear error of judgment.” Id. Pursuant to § 1988, a district court may award attorney[s’] fees to a prevailing party in a lawsuit brought to enforce a provision of § 1983. A prevailing defendant, however, is entitled to attorney[s’] fees only in very narrow circumstances. A plaintiff should not be assessed his opponent’s attorneys’ fees unless the district court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so. Even allegations that, upon careful examination, prove legally insufficient to require a trial are not, for that reason alone, groundless or without foundation.... Rather, so long as the plaintiff has some basis for [her] claim, a prevailing defendant may not recover attorneys’ fees. Williams v. City of Carl Junction, Mo., 523 F.3d 841, 843 (8th Cir.2008) (internal quotations, alterations, and citations omitted). The Supreme Court warns that a court should avoid “post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). “Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.” Id. at 422. However, an award may be warranted if a plaintiff continues to litigate after it becomes apparent that his claims are groundless and unreasonable, even if the" } ]

[ { "docid": "9748207", "title": "", "text": "person violated the provisions of the law,” in order to enable such citizen to defend his claim in a case wherein the property of such citizen is proceeded against, or wherein a judgment affecting it might be rendered? A careful analysis of the act makes it apparent that.in no case is a prohibition officer or agent justified in seizing intoxicating liquor or other property without a search warrant, except as provided in section 26, which makes it his duty to seize all intoxicating liquors found being transported contrary to law in any wagon, buggy, automobile, water or air craft, or other vehicle. Upon seizure in either case, however, the act contemplates a remedy by orderly process of law for the disposition of the intoxicating liquor seized. . ' Intoxicating liquor seized under a warrant may either be liquor as to which no property rights exist under section 25, or it may be liquor that has been lawfully possessed. There must be a determination of questions of fact, and the application of the law to the facts, if there is a claim of lawful possession. When an officer seizes intoxicating liquors, it is not intended that he shall constitute the tribunal to determine those questions of fact nor of law. The right to due process of law is ‘not abrogated by the Eighteenth Amendment. If the officer proceeds by search warrant to 'seize articles in which ,a citizen may or may not have property, the intent of the act must necessarily be that he shall take such other appropriate proceedings as in due course of law follow seizure; and that is clearly indicated, throughout the entire act. It is not necessary for the purposes of the present question to examine other sections than section 25, under which the seizure was had, and section 33, under which the respondent claims property in the liquor seized. Section 25 provides that the liquor so seized shall be subject to such disposition as the court may make thereof, and, if it is found to be unlawfully held or possessed or used, it shall be destroyed," } ]

[ { "docid": "15718699", "title": "", "text": "his part, of the place [the so-called ‘root cellar’] where the intoxicating liquor on said premises was found and seized.” The claimant duly excepted to the findings 1 and 2. The first special finding, we think, was inadvertently made, as the uneontradicted evidence was that the prohibition agents came upon the premises without the knowledge of the claimant, and, this being so, he could not reasonably be found to have voluntarily permitted them to come there for any purpose. He could then permit them to remain, and the court so found in the second special finding. And the question is whether, having consented to a search of a certain portion of his premises, the barn (general findings and special finding 2), without a warrant, he, as a matter of law, must be held to have consented to a search of the root cellar and waived his constitutional rights, in view of the express finding that he did not so consent (special finding 3). We are of the opinion that the claimant did not intend to waive any of his constitutional rights with reference to a search of the root cellar, and that no waiver was effected; that the search of the root cellar, having been made without a warrant and without Strong’s consent, was unlawful; and that the motion made before trial and at the close of the evidence, to suppress and strike out the evidence obtained through the search and seizure, should have been granted. Although the search and seizure were unlawful and the evidence procured thereby was inadmissible, there was other adequate evidence, taken in connection with admitted facts, to support the allegations of the libel and warrant the decree entered. The claimant in his answer denied none of the allegations of the libel. It was alleged in the libel that on December 13, 1928, the federal prohibition administrator seized the liquors, which were in the possession of John Strong, the claimant; that they consisted of “1444 bottles Pet. Dawson, 564 bottles Bull Lade & Co., 463 bottles Sherry wine, 94 bottles Port wine, 132 bottles J. Dewar" }, { "docid": "16879704", "title": "", "text": "warrant for the detention of the property, and (a) upon the hearing and determination of the petition of the owner or claimant restoration is denied, or (b) the owner or claimant fails to file a petition for resto ration within thirty days after the seizure, the United States attorney for the district wherein it was seized, upon direction of the Attorney General, shall institute libel proceedings in the United States district court or the district court of the Canal Zone or the court of first instance of the Philippine Islands having jurisdiction over the place wherein the seizure was made against the property for condemnation; and if, after trial and hearing of the issues involved, the property is condemned, it shall be disposed of by sale, and the proceeds thereof, less the legal costs and charges, paid into the Treasury: Provided, That the court shall order any arms and munitions of war so condemned delivered to the War Department of the United States.” Sec. 405: “The proceedings in such summary trials upon the petition of the owner or claimant of the property seized, as well as in the libel cases provided for in section 404 of this title, shall conform, as near as may be, to the proceedings in admiralty, except that either party may demand trial by jury of any issue of fact joined in such libel cases and all such proceedings shall be at the suit of and in the name of the United States: Provided, That upon the payment of the costs and legal expenses of both the summary trials and the libel proceedings provided for in section 404 of this title, and the execution and delivery of a good and sufficient bond in an amount double the value of the property seized, conditioned that it will not be exported or used or employed contrary to the provisions of sections 401-408 of this title, the court, in its discretion, may direct that it be delivered to the owners thereof or to the claimants thereof.” The Government denies claimant’s right to restoration of the platinum for reasons that" }, { "docid": "2051364", "title": "", "text": "WOOLLEY, Circuit Judge. On a libel for the forfeiture of goods and wares which, after search, the United States had seized because designed for the manufacture of liquor intended for use in violating the National Prohibition Act, the District Court decreed that the goods so seized and enumerated in the libel he forfeited to the United States and destroyed. The respondents appealed. The many errors they assign may be grouped and reduced to three. The first is that the libel is bad as a pleading because it does not state facts which in themselves warrant or sustain the decree asked for. 33 Corpus Juris, 1139. The libel avers the previous seizure and present custody by the United States of contraband liquors and property designed for the manufacture of such liquors which the respondents unlawfully possessed, held and used at a named place in violation of section 25, title 2, of the National Prohibition Act (27 USCA § 39). As this is a pleading not in a criminal action but in a civil suit, it is, we think, good under authority of United States v. 385 Barrels of Wine, 300 F. 565, if any authority be needed in view of the clear averments of the unlawful possession and intended use of the property, aided by a full and carefully prepared bill of particulars made a part of the libel. The respondents next charge error in the decree because, as they claim, it is based on a search 'and seizure made in violation of the Fourth Amendment to the Constitution in that the affidavit on which the search warrant issued did not show probable cause. The protection which the Fourth Amendment affords against unreasonable searches and seizures is so differently regarded by persons who, on the one hand, in their zeal to enforce some other law are inclined to impinge upon this law, and persons who, on the other hand, resort to it as a cover in violating some other law, that this court, conscious of its duty to maintain this constitutional provision in all its integrity and sanctity and alert to" }, { "docid": "15718695", "title": "", "text": "be issued to parties in interest, and, due process having been had, that the liquors be forfeited and the proceeds be' distributed according to law. An order of notice having been issued and. served, John Strong filed a claim and answer setting out that he was the owner of the property in question, and alleging that it was unlawfully and wrongfully taken from his premises by federal officers without right and in violation of his rights under the Constitution and laws of the United States. On April 2, 1930, a jury trial having been waived in writing, the ease came on for hearing. Before trial, the claimant filed a motion to suppress the evidence obtained through the search and seizure, which was denied without prejudice. This motion was renewed at the close of the evidence and denied, subject to- exception. After hearing, it was decreed that the liquors be condemned as forfeited to the United States and destroyed. It is from this decree that the appeal is taken. The claimant made the following requests for rulings: (1) That upon all the evidence the libel should be dismissed; (2) that the search of the premises by the officers was without probable cause; (3) that the claimant had the right to order the officers from the premises, and their refusal to go rendered them trespassers; (4) that, the federal officers having come on the premises without a search warrant, and there being no evidence of a crime being committed in their presence which could be determined by the use of their senses, they had no right to remain there after being ordered to leave, and their conduct in remaining was wrongful, and any search made by them thereafter was unlawful; (5) that intoxicating liquors seized as a result of an unlawful search and seizure are not subject to forfeiture; and (6) that the libel contained no allegation that the liquors seized were unlawfully possessed by the claimant at the time and place of seizure, and that the seizure was lawfully made, and should be dismissed. Each of these requests were denied, subject" }, { "docid": "22617180", "title": "", "text": "“to search in all places, where books were printing, in order to see if the printer had a licence; and if upon such search he found any books which he suspected to be libellous against the church or state, he was to seize them, and carry them before the proper magistrate.” Entick v. Carrington, supra, at 1069. Thus the general warrant became a powerful instrument in proceedings for seditious libel against printers and authors. Ibid. John Wilkes led the campaign against the general warrant. Boyd v. United States, 116 U. S. 616, 625. Wilkes won (Entick v. Carrington, supra, decided in 1765); and Lord Camden’s opinion not only outlawed the general warrant (id., at 1072) but went on to condemn searches “for evidence” with or without a general warrant: “There is no process against papers in civil causes. It has been often tried, but never prevailed. Nay, where the adversary has by force or fraud got possession of your own proper evidence, there is no way to get it back but by action. “In the criminal law such a proceeding was never heard of; and yet there are some crimes, such for instance as murder, rape, robbery, and housebreaking, to say nothing of forgery and perjury, that are more atrocious than libelling. But our law has provided no paper-search in these cases to help forward the conviction. “Whether this procedeth from the gentleness of the law towards criminals, or from a consideration that such a power would be more pernicious to the' innocent than useful to the public, I will not say. “It is very certain, that the law obligeth no man to accuse himself; because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it should seem, that search for evidence is disallowed upon the same principle. There too the innocent would be confounded with the guilty.” Id., at 1073. Thus Lord Camden decided two things: (1) that searches for evidence violated the principle against self-incrimination; (2) that general warrants were void. This decision, in the" }, { "docid": "1547966", "title": "", "text": "keeping the principles on which it rests inviolate. In this spirit alone it is safe to attempt to solve the problem which now confronts us. The property covered by this libel is contraband. Danovitz v. United States, 281 U. S. 389, 50 S. Ct. 344, 74 L. Ed. 923. It was in the possession of the government when the libel was filed. But we do not consider whether, even though the seizure was illegal, the government might have adopted it and proceeded to forfeit the property, because, by the stipulation of the parties, the sole question submitted for determination was the legality of the search and seizure, and, in the event that that issue was determined in favor of the claimant, the decree was to be for it. As unreasonable searches and seizures are the only kind which violate the Constitution, we are to examine the validity of the one which is relied upon to give jurisdiction here in the light of its reasonableness. As it was made without a search warrant, the government must needs support it by showing circumstances which made it reasonable without one. Obviously, in dealing with contraband housed in buildings not capable of escape from the officers and the jurisdiction by their mobility, as are automobiles, cases like Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, holding searches without a warrant but upon probable cause to believe contraband is present in vehicles, are not conclusive. These officers had a reasonable opportunity to obtain a search warrant. No reason for their failure to do that can be perceived except the wholly inadequate one that it was, perhaps, less troublesome to them to proceed without it. We are urged to hold that they had the right to search and seize as they did without a warrant because they made arrests in the premises. No other justification for such conduct is advanced. It was assumed upon the argument that the arrests were lawful, and we shall take that for granted. This calls up for consideration" }, { "docid": "13417721", "title": "", "text": "as a fact that the property “was about to be unlawfully exported, shipped from, or taken out of the United States”. The libel does not allege that the property was about to be exported in violation of law. It alleges merely that the customs patrol inspectors who seized the property had probable cause to believe that it was. Their probable cause is sufficient to justify the warrant of detention which was issued in this cause. It is not sufficient to justify the forfeiture. For another reason, that the judgment was not supported by service sufficient to give the court jurisdiction in rem to condemn the property, it may not stand. The order for notice required the marshal of the district “to give 14 days notice prior to the first Monday in March * * * by causing the substance of the libel and of this order to be published one time in a newspaper published in the City of El Paso”. The marshal’s return on the notice shows that it was not published until February 23rd, much less than fourteen days from the return date. The service was therefore completely inadequate to support the judgment by default. The reversal of the order refusing to set aside the judgment necessarily results in a reversal of the order denying claimant’s motion to make bond and take the property, but in view of the government’s contention that the motion came too late because made after judgment, we think we should say in the event the forfeiture proceeding is further pressed, that we do not at all agree with this contention. Section 5 of the Act, under which the motion for return of property was made, makes it plain that the motion may be made at any time before the judgment of forfeiture is entered and becomes irrevocable. Indeed, normally the matter would be first tried out to determine whether there had been a violation. If the' charges that the law had been violated were without support in the evidence, the property would be released to the claimant without requiring bond. If they were" }, { "docid": "21837513", "title": "", "text": "HAZEL, District Judge. Pursuant to a search warrant issued by a United States Commissioner, the searching officer, a customs inspector, entered the private home of petitioner and seized 128 eases of- liquors of various kinds, the containers eon-eededly being labeled, “Liquor Control Board of Ontario” — a liquor board that was established in Ontario about April 5, 1927, more than eight years after the passage of the Yolstead Act. The search warrant, after its execution, and after seizure of the contraband, was traversed, and the same commissioner who issued the warrant, held it to have been illegal for failure to disclose probable cause for its issuance.. It having been held invalid, the evidence of the custody of the liquors seized was suppressed and the accused discharged. No appeal or review of the decision was taken, and no proceeding to- libel the intoxicating liquors has been commenced, nor is there any intention on the part of the government to institute such a proceeding. The petitioner now asks, as owner and possessor of the liquor at time of seizure, which he swears was lawfully acquired, for its return on the ground that his residence was unlawfully invaded. Coneededly there was no sale by him or any one residing at the place where the liquor was found. The .petitioner was not accused of violation of the customs' laws. He was charged with violation of the National Prohibition Act (27 USCA), although the search warrant states that the liquor was brought into the United States without paying the duties, in contravention of the customs laws. The reason for changing the nature of the accusation does not appear. The right of restoration must be determined under section 25 of title 2 of the National Prohibition Act (27 USCA § 39), which declares that property seized “shall be subject to such disposition as the court may make thereof. ’ ’ In opposition to the return of the liquor to the petitioner, the government con tends that it manifestly was not lawfully acquired or possessed, since the labels on the containers show the contrary. Inasmuch, however, as" }, { "docid": "15718796", "title": "", "text": "15 days from the date of service; authorizes a hearing, and further provides: “If it be found that sueh person has been guilty of willfully violating any sueh laws, as charged, or has not in good faith conformed to the provisions of this chapter, such permit shall be revoked, and no permit shall be granted to such person within one year thereafter.” While the bill of complaint filed prays for an order to suppress all evidence obtained by the prohibition agents, and to prevent its use in any and all proceedings, no criminal action, suit for penalty, or libel, or other action for forfeiture of any of the property of complainant, is now pending. The only action pending at the present time is the notice served by the Commissioner in proceedings to revoke the permit granted to the eomplainant under section 37 of the National Prohibition Act; the proceedings being in compliance with section 9 of title 2. My judgment is that the question first to be disposed of in this proceeding is whether the Fourth and Fifth Amendments apply under proceedings of this character? In other words, does the Fourth or Fifth Amendment protect the eomplainant where there are no criminal, penal, or forfeiture proceedings pending? The Fourth Amendment provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. * * * ” The Fifth Amendment, among other things, provides that no person “shall be compelled in any Criminal Case to be a witness against himself. * * * ” While it , is true that generally the Fourth and Fifth Amendments may be construed together, there is a clear distinction between the seizing of contraband articles, or property illicitly, possessed, and the obtaining of papers or writings which may be produced as evidence against the possessor in a criminal, penal, or forfeiture proceeding. The former may be seized on a valid search warrant, or without warrant if the circumstances justify it; whereas the-seizure of the latter, unless under exceptional circumstances, by any" }, { "docid": "8056569", "title": "", "text": "including steam boilers, steam turbine, and electric generator, refrigerating machines, steam pumps, various other machines, cookers, tanks, etc. The brewery had no permit from the collector of internal revenue. It was being operated, as the claimant asserts, for the manufacture of near beer. The parties agree that in that process beer of full strength is first made and then the alcohol is extracted from it. After the libel was filed, a warrant and monition were issued against the property seized, and it was all taken over by the United States marshal. The questions now before the court arise on a motion to dismiss the libel, and on motions to quash the search warrant and for the return of the property seized under it. As to the latter motion: Search warrants are governed by Espionage Act, art. 11 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496¼ et seq.). A basic assumption on which that\" act rests is that the property seized can be “taken” by the seizing officer “from” some person or place and brought “before the judge or commissioner.” Sections 2 and 6. A receipt is to- be given for tbe property “taken.” Tbe property, if not “restored to tbe person from -whom it was taken,” is “to be retained in tbe custody of tbe person seizing it,” etc. Section 16. Section 25 of tbe National Prohibition Act is to be read in connection with the Espionage Act, which it incorporates. It relates to property which is movable, and can be disposed of as movable property by destruction or return, and which could be made the subject of replevin proceedings. Real estate and things annexed to real estate are not within its purview, but are to be dealt with under section 22 of that act, in connection with the use of the premises. There is difficulty in applying these, principles to the present case, because what constitutes a fixture is largely a question of fact, and no evidence has' been submitted describing the various articles seized. It might perhaps be held that steam boilers, a steam turbine and" }, { "docid": "8765928", "title": "", "text": "have been about to be so unlawfully exported”, the same shall be forfeited to the United States. Under § 402 of the statute it is made the duty of the person making the seizure to apply with due diligence to the Judge of the District Court which has jurisdiction over the place of seizure for a warrant to justify the detention of the property. The judge may grant the warrant only on oath or affidavit that there is known or probable cause to believe “that the property seized is being or is intended to be exported” in violation of the law. If the person making the seizure fails to make application for the warrant within a reasonable time not exceeding ten days after the seizure, or if the judge refuses to issue the warrant, the property shall forthwith be restored to the owner or person from whom seized. If the judge is satisfied that the seizure was justified under the Act and issues the warrant, the property shall be detained by the person seizing it until the President orders it restored to the owner or claimant or until it is discharged in due course of law on petition of the claimant or on trial of condemnation proceedings. Section 403 provides that the owner or claimant may at any time before condemnation proceedings have been instituted under succeeding sections of the Act file a petition for restoration in the District Court whereupon the court, after notice to the United States Attorney and the person making the seizure, shall hear and decide whether the property seized shall be restored to the petitioner or forfeited to the United States. Section 404 of the Act provides.for condemnation proceedings by libel if the owner or claimant fails to file a petition for restoration within thirty days after seizure or if upon hearing a petition for restoration is denied; and § 405 provides that the proceedings on the trial of a petition for restoration or a libel for condemnation shall conform to proceedings in admiralty except that either party may have a trial by jury of" }, { "docid": "12667149", "title": "", "text": "proceed with the libel, it points to the express provision of Sec. 401 authorizing seizure and forfeiture of war materials about -to be unlawfully exported “if upon due inquiry as provided in secs. 402-408, the property seized shall appear to have been about to be so unlawfully exported, shipped from, or taken out of the United States.” It points, too, to the provision of Sec. 403 authorizing a person whose property has been seized to ■ petition the court for its restoration, “at any time before condemnation proceedings have been instituted” (emphasis supplied). Finally it points to Sec. 404 providing that whenever the person making any seizure applies for and obtains a warrant for the detention of the property and (a) upon the hearing and determination of the petition of the owner or claimant, restoration is denied, of (b) the owner or claimant fails to file a petition for restoration within thirty days after the seizure, “the United States attorney * * * shall institute libel proceedings * * * ”. So pointing, it insists that the provisions of Sec. 402 for applying for a warrant of further detention are not designed to fix limits to the jurisdiction of the libeling court, but are designed (1) to compel the seizing officer to proceed promptly and (2) to give a right to the claimant before, but not after, a libel has been filed, to obtain his property back by petition for restoration if such prompt action is not taken. We agree with appellant that the seizure was made on February 2nd, and the application for the warrant was not made until Feb. 13th, but we cannot agree with him that these facts require a dismissal of the libel or the return of the automobile. For we agree with the United States that the application for the warrant was timely filed and by a proper person. Appellant concedes that if February 12th, Lincoln’s birthday, can be excluded from the computation, the application was within ten days, and that Rule 6, Federal Rules of Civil Procedure, 28 U.S.C.A., if applicable, provides for such" }, { "docid": "6532280", "title": "", "text": "DICKINSON, District Judge. There are several features of this.cause which call for comment: 1. Procedure. The practice heretofore prevailing has not been uniform, and the views entertained of what it should be have been somewhat discordant. As soon as one point is settled, another arises, and those which have been settled become unsettled, or the established practice disregarded. We take this case in its procedural features as typical of a large class of search warrant cases. On January 14,1927, a search warrant issued to search the brewery premises of the petitioner, known as the Fisher Brewing Company, in Reading, for contraband beer, and beer and brewery supplies and utensils were seized. There is no averment beyond this, other than the detention of the property seized, and another averment to which we will later refer. We are now dealing with merely the procedural features. On January 18, 1927, the present petition was filed, praying (1) that the search warrant be quashed and the return set aside; (2) that the property seized be directed to be returned; and (3) that the respondents “be precluded from using in evidence any of the property so seized.” The practice is now settled, so far as concerns this court, that under section 25 of the National Prohibition Act (Comp. St. § 10138%m) and the pertinent provisions of the Espionage Act (Comp. St. § 10514a et seq.) in cases in which no action has been taken by libel and attachment, or otherwise, after a seizure under a search warrant, the party averring an injury, thereby having the right to a remedy, may proceed by way of petition and answer. To this proceeding the prohibition director and the district attorney should be made respondents, and if the seareh warrant be quashed, or the execution or return be set aside, the court may order the return of the property seized; but there should be an additional order prayed for that the district attorney proceed by libel or other action within a prescribed time, in default of whieh the property may be ordered returned upon the petitioner establishing his ownership." }, { "docid": "2399598", "title": "", "text": "KILEY, Circuit Judge. The district court dismissed plaintiffs’ suit seeking to restrain defendant Director, et al., from using evidence, alleged to have been illegally seized, and to enforce a previous court order suppressing the challenged evidence. Plaintiffs appealed and we affirm. The complaint shows that: In 1962 defendant agents, armed with warrants, searched the premises of Empire Press, Inc., in Chicago, and seized records, machinery and other personal property. In a subsequent libel proceeding brought by the United States against the material seized, Empire intervened and moved to suppress from evidence the seized material. The motion was granted, and that order, entered April 2, 1963, not appealed, is now final. The defendants in 1966 told plaintiffs that wagering tax assessments were to be made against them on the basis of information obtained from the material seized at Empire. Plaintiffs were advised that the material would be used despite the order of suppression. Plaintiffs then brought this suit for a holding, and order, that defendants may not use the material as a basis for the intended assessment. Defendants moved to dismiss on the ground, inter alia, that the complaint sought declaratory judgment relief “with respect to Federal taxes” and is accordingly barred under 28 U.S.C. § 2201 (1964); and that the suit was to restrain the assessment of a tax and prohibited therefore under 26 U.S.C. § 7421(a). An affidavit of a government attorney, in support of the defendants’ motion, discloses that in a November, 1963, criminal proceeding, United States v. Zimmerman (an unreported case), a motion to suppress as evidence the material seized at Empire was made by Zimmerman, an Empire employee, with reliance upon, inter alia, the order of suppression in the libel suit seven months earlier. A different judge from the one in the libel suit denied Zimmerman’s motion, even though he was aware of the prior suppression order in the libel suit. The affidavit also states that the “principal basis” for the proposed assessment against plaintiffs was the voluntary affidavits which plaintiff John Koin gave defendants in 1962. These were incorporated by reference in the government affidavit." }, { "docid": "22167697", "title": "", "text": "taken into port. The Collector of Customs assessed a penalty which he attempted to collect by means of libels against both the cargo and the seized vessel. The Court held that the seizure was not authorized by the treaty because it occurred more than 10 miles off shore. The Government argued that the illegality of the seizure was immaterial because, as in Ker, the court’s jurisdiction was supported by possession even if the seizure was wrongful. Justice Brandéis acknowledged that the argument would succeed if the seizure had been made by a private party without authority to act for the Government, but that a different rule prevails when the Government itself lacks the power to seize. Relying on Rauscher, and distinguishing Ker, he explained: “Fourth. As the Mazel Tov was seized without warrant of law, the libels were properly dismissed. The Government contends that the alleged illegality of the seizure is immaterial. It argues that the facts proved show a violation of our law for which the penalty of forfeiture is prescribed; that the United States may, by filing a libel for forfeiture, ratify what otherwise would have been an illegal seizure; that the seized vessel having been brought into the Port of Providence, the federal court for Rhode Island acquired jurisdiction; and that, moreover, the claimant by answering to the merits waived any right to object to enforcement of the penalties. The argument rests upon misconceptions. “It is true that where the United States, having pos-séssion of property, files a libel to enforce a forfeiture resulting from a violation of its laws, the fact that the possession was acquired by a wrongful act is immaterial. Dodge v. United States, 272 U. S. 530, 532 [(1926)]. Compare Ker v. Illinois, 119 U. S. 436, 444. The doctrine rests primarily upon the common-law rules that any person may, at his peril, seize property which has become forfeited to, or forfeitable by, the Government; and that proceedings by the Government to enforce a forfeiture ratify a seizure made by one without authority, since ratification is equivalent to antecedent delegation of authority to" }, { "docid": "16879703", "title": "", "text": "law on petition of the claimant, or on trial of condemnation proceedings, as provided in sections 403-408 of this title.” Sec. 403: “The owner or claimant of any property seized under sections 401-408 of this title may, at any time before condemnation proceedings have been instituted, as provided in sections 404-408 of this title, file his petition for its restoration in the district court of the United States, or the district court of the Canal Zone, or the court of first instance in the Philippine Islands, having jurisdiction over the place in which the seizure was made, whereupon the court shall advance the cause for hearing and determination with all possible dispatch, and, after causing notice to be given to the United States attorney for the district and to the person making the seizure, shall proceed to hear and decide whether the property seized shall be restored to the petitioner or forfeited to the United States.” Sec. 404: “Whenever the person making any seizure under sections 401-408 of this title applies for and obtains a warrant for the detention of the property, and (a) upon the hearing and determination of the petition of the owner or claimant restoration is denied, or (b) the owner or claimant fails to file a petition for resto ration within thirty days after the seizure, the United States attorney for the district wherein it was seized, upon direction of the Attorney General, shall institute libel proceedings in the United States district court or the district court of the Canal Zone or the court of first instance of the Philippine Islands having jurisdiction over the place wherein the seizure was made against the property for condemnation; and if, after trial and hearing of the issues involved, the property is condemned, it shall be disposed of by sale, and the proceeds thereof, less the legal costs and charges, paid into the Treasury: Provided, That the court shall order any arms and munitions of war so condemned delivered to the War Department of the United States.” Sec. 405: “The proceedings in such summary trials upon the petition of" }, { "docid": "6532281", "title": "", "text": "and (3) that the respondents “be precluded from using in evidence any of the property so seized.” The practice is now settled, so far as concerns this court, that under section 25 of the National Prohibition Act (Comp. St. § 10138%m) and the pertinent provisions of the Espionage Act (Comp. St. § 10514a et seq.) in cases in which no action has been taken by libel and attachment, or otherwise, after a seizure under a search warrant, the party averring an injury, thereby having the right to a remedy, may proceed by way of petition and answer. To this proceeding the prohibition director and the district attorney should be made respondents, and if the seareh warrant be quashed, or the execution or return be set aside, the court may order the return of the property seized; but there should be an additional order prayed for that the district attorney proceed by libel or other action within a prescribed time, in default of whieh the property may be ordered returned upon the petitioner establishing his ownership. We will treat this petition as so praying, and dispose of it in accordance with this mode of practice. 2. Real Estate. The additional averment to which we have referred is that the prohibition authorities had made use of this seareh warrant as an authority to seize and hold possession of the real estate premises. Search warrants have nothing to do with real estate, beyond a seareh of it, and the officers have no right of possession, or to remain on the premises for a longer time than is reasonably necessary to execute the writ. This was flatly ruled in an opinion by Judge MeKeehan. Mellet & Nichter v. U. S. (D. C.) 296 F. 765. A decree may be submitted ordering them to withdraw. 3. Seareh Warrant. The final question is one relating to the regularity of the seareh warrant. The Constitution of the United States provides, and the Espionage Act, of course, follows it, that no seareh warrant can issue, except upon probable cause. The question of the existence of probable cause must" }, { "docid": "17485395", "title": "", "text": "been instituted, and condemnation cannot be begun until after 30 days from date of seizure, and then “upon direction of the Attorney General.” Tho suggestion of the libelant that the provision for obtaining a warrant is merely for the protection of the officer making the seizure and to afford a summary remedy Jo the owner or claimant of the property, if an unreasonable detention might be attempted without any resort to legal proceedings to adjudicate the issues, and that it does not provide steps which must be taken by the government, I do not think to be well founded. Instead of looking to the protection of the officer, sections 2 and 4 bristle with provisions for the protection of private property, and require a speedy investigation of all facts with relation to the seizure by the officers, and require a prima facie case to be made, under oath, to the District Judge within 10 days. On failure so to do, “the property shall forthwith be restored to the owner or person from whom seized.” Two methods of procedure are provided; one “summary,” the other “plenary.” The summary method (section 3) may be by petition of the owner for restoration; and plenary, if the claimant’s petition for restoration is denied, or the claimant fails to file a petition for restoration within 30 days after seizure, and then, upon direction of tho Attorney General, libel proceedings shall be instituted. But, as a basis for either proceeding, a warrant shall be obtained from the District Judge within 10 days. It is apparent that the various words of limitation as employed in this act were designedly used, and the intent appears clear to fix a time limit within which the government must move or return the property. It seems that no other conclusion can follow, and that, oven if the Congress could and had intended to destroy a vested right, the limitations would not have been provided, and that it would have done so in clear language, from which there is no escape. Lincoln v. U. S., 202 U. S. 484, 26 Sup. Ct." }, { "docid": "22816456", "title": "", "text": "Treasury or the Department of Justice after the Tariff Act of 1930. Searches and seizures in the .enforcement of the laws prohibiting alcoholic liquors are governed, since the 1930 Act, as they were before, by the provisions of the Treaty. Section 581, with its scope narrowed by the Treaty, remained in force after its re-enactment in the Act of 1930. The section continued to apply to the boarding, search and seizure of all vessels of all countries with which we had- no relevant treaties. It continued also, in the enforcement of our customs laws not related to the prohibition of alcoholic liquors, to govern the boarding of vessels of those countries with which we had entered into treaties like that with Great Britain. Fourth. As the Mazel Tov was seized without warrant of law, the libels were properly dismissed. The Government contends that the alleged illegality of the seizure is immaterial. It argues that the facts proved show a violation of our law for which the penalty of forfeiture is • prescribed; that the United States may, by filing a libel for forfeiture, ratify what otherwise would have been an illegal seizure; that the seized vessel having been brought into the Port of Providence, the federal court for Rhode Island acquired jurisdiction; and that, moreover, the claimant by answering to the merits waived any right to object to enforcement of the penalties. The argument rests upon misconceptions. It is true that where the United States, having possession of property, files a libel to enforce a forfeiture resulting from a violation of its laws, the fact that the possession was acquired by a wrongful act is immaterial. Dodge v. United States, 272 U. S. 530, 532. Compare Ker v. Illinois, 119 U. S. 436, 444. The doctrine rests primarily upon the common-law rules- that any person may, at his peril, seize property which has become forfeited to, or forfeitable by, the Government; and that proceedings by the Government to enforce a forfeiture ratify a seizure made by one without authority, since ratification is equivalent to antecedent delegation of authority to seize." }, { "docid": "12667148", "title": "", "text": "if it was not presented, until Feb. 13th, the day it was granted, this would not effect the jurisdiction of the court in the libel suit. This attached upon the filing of the libel on April 16, 1947, while the car was still in detention, and the judgment refusing to dismiss the libel was right and should be affirmed. Appellant, in support of his contention that the ten day period fixed was jurisdictional, relies heavily on United States v. 21 Lbs. of Platinum, 4 Cir., 147 F.2d 78; and United States v. Three Cadillac Coupes, 5 Cir., 157 F.2d 792. The United States insists that what was said in these cases as to the necessity for compliance with the ten day period was not decision but discussion and dicta since in both of these cases it was held that the applications had been filed within ten days. In emphasis of its position that if there was failure to comply with the time provisions of Sec. 402, this did not deprive the court of jurisdiction to proceed with the libel, it points to the express provision of Sec. 401 authorizing seizure and forfeiture of war materials about -to be unlawfully exported “if upon due inquiry as provided in secs. 402-408, the property seized shall appear to have been about to be so unlawfully exported, shipped from, or taken out of the United States.” It points, too, to the provision of Sec. 403 authorizing a person whose property has been seized to ■ petition the court for its restoration, “at any time before condemnation proceedings have been instituted” (emphasis supplied). Finally it points to Sec. 404 providing that whenever the person making any seizure applies for and obtains a warrant for the detention of the property and (a) upon the hearing and determination of the petition of the owner or claimant, restoration is denied, of (b) the owner or claimant fails to file a petition for restoration within thirty days after the seizure, “the United States attorney * * * shall institute libel proceedings * * * ”. So pointing, it insists" } ]

[ { "docid": "17443012", "title": "", "text": "at least one claim of a patent, before the patent expires”). This court reviews a district court’s decision concerning summary judgment under the law of the regional circuit. MicroStrategy, Inc. v. Bus. Objects, S.A., 429 F.3d 1344, 1349 (Fed.Cir.2005). The United States Court of Appeals for the Ninth Circuit reviews a grant of summary judgment without deference. Burke v. County of Alameda, 586 F.3d 725, 730 (9th Cir.2009). This court has stated that “district courts are widely acknowledged to possess the power to enter summary judgment sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence.” See, e.g., Int’l Visual Corp. v. Crown Metal Mfg. Co., 991 F.2d 768, 770 (Fed.Cir.1993) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). However, the district court’s power to enter summary judgment does not allow it to bypass performing a complete patent infringement analysis. Patent infringement requires a two-step analysis. First, “the court determines the scope and meaning of the patent claims asserted,” and then compares the claims “to the allegedly infringing devices.” Cybor, 138 F.3d at 1454. In this case, the district court performed the first step. At that point, however, the process hit a couple short circuits. In the first place, the adopted claim construction did not entirely dispose of the case because several claims did not include the construed term. More important, the trial court did not place the accused device alongside each asserted claim for a complete comparison. See Intervet Inc. v. Merial Ltd., 617 F.3d 1282, 1292 (Fed.Cir. 2010) (remand to compare properly construed claims to accused product claim by claim). This court vacates the district court’s grant of summary judgment of non-infringement. Several discovery motions were pending when the district court, sua sponte, found non-infringement. These included motions to compel depositions of Jordan Klein, Sr. and Jordan Klein, Jr. (collectively, “the Kleins”), production of documents related to the accused device, and re-designation of confidentiality designations. While the district court found aspects of these motions persuasive, they were denied or" } ]

[ { "docid": "16251179", "title": "", "text": "Inc., 355 F.3d 1327, 1333-34 (Fed.Cir.2004); ACTV, Inc., 346 F.3d at 1087 (“In construing a means-plus-function limitation drafted in accordance with § 112, ¶ 6, the recited function within that limitation must first be identified. Then, the written description must be examined to determine the structure that corresponds to and performs that function.”) (citations omitted). Infringement, in turn, depends upon a comparison of the properly construed claims of the patent to the accused device. See, e.g., Deering Precision Instruments, L.L.C. v. Vector Distrib. Sys., Inc., 347 F.3d 1314, 1322 (Fed.Cir.2003) (“An infringement analysis, whether literal or under the doctrine of equivalents, requires two steps: (1) construction of the claims to determine the scope and meaning of the asserted claims; and (2) comparison of the properly construed claims with the allegedly infringing device.”), cert. denied, — U.S. -, 124 S.Ct. 1426, 158 L.Ed.2d 88 (2004). A patentee may prove infringement of a means-plus-function claim under either a literal infringement theory or a doctrine of equivalents theory. See Lockheed Martin Corp. v. Space Sys./Loral, Inc., 324 F.3d 1308, 1320 (Fed. Cir.2003) (“An accused structure that does not literally infringe a means-plus-function claim may nevertheless infringe under the doctrine of equivalents.”). “Literal infringement of a § 112 ¶ 6 claim requires that the relevant structure in the accused device perform the identical function recited in the claim and be identical or equivalent to the corresponding structure in the specification.” Id. (emphasis added). For purposes of literal infringement, an accused device is “equivalent to the corresponding structure in the specification” if it is “insubstantially different with respect to structure.” See, e.g., Odetics, Inc. v. Storage Tech. Corp., 185 F.3d 1259, 1267 (Fed.Cir.1999) (emphasis added). Infringement under the doctrine of equivalents likewise turns on whether or not there are only “insubstantial differences” between the patented claim and the accused infringing device, see Talbert Fuel Sys. Patents Co. v. Unocal Corp., 347 F.3d 1355, 1360 (Fed.Cir.2003) (citing Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 39-10, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997)), but that does not mean that the analysis of claim construction," }, { "docid": "15989254", "title": "", "text": "S.A v. Analog Devices, Inc., 172 F.3d 817, 824, 49 USPQ2d 1865, 1869 (Fed.Cir.1999). To prevail, an appellant “must show that the jury’s findings, presumed or express, are not supported by substantial evidence or, if they were, that the legal conclusion(s) implied from the jury’s verdict cannot in law be supported by those findings.” Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 893, 221 USPQ 669, 673 (Fed.Cir.1984) (citation omitted). A determination of infringement requires a two-step analysis. “First, the court determines the scope and meaning of the patent claims asserted ... and then the properly construed claims are compared to the allegedly infringing device.” Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454, 46 USPQ2d 1169, 1172 (Fed.Cir.1998) (en banc) (citations omitted). Literal infringement requires that every limitation of the patent claim be found in the accused device. Read Corp. v. Portec, Inc., 970 F.2d 816, 821, 23 USPQ2d 1426, 1431 (Fed.Cir.1992). “An accused device that does not literally infringe a claim may still infringe under the doctrine of equivalents if each limitation of the claim is met in the accused device either literally or equivalently.” Cybor, 138 F.3d at 1459, 46 USPQ2d at 1177. Claim construction is an issue of law, Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71, 34 USPQ2d 1321, 1322 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), that we review de novo, Cybor, 138 F.3d at 1456, 46 USPQ2d at 1172. Determination of infringement, whether literal or under the doctrine of equivalents, is a question of fact. SRI Int’l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1125, 227 USPQ 577, 589 (Fed.Cir.1985) (en banc). Finally, the applicability of prosecution history estoppel is a legal question that we review de novo. Cybor, 138 F.3d at 1460, 46 USPQ2d at 1178. A. Claim Construction 1. The “multiple orientation” limitation Lamson argues that the district court erred in construing the “multiple orientation” limitation in claims 1 and 12 to cover one hundred eighty degree rotations of the insert. Lamson contends that the language of the claims and" }, { "docid": "14245360", "title": "", "text": "91 L.Ed.2d 265 (1986). IV. DISCUSSION A. Infringement BSC moves for summary judgment that the Promus stent does not infringe any asserted claim of the '7286, '3286, or '473 patents. J & J moves for summary judg ment that the Promus stent infringes claim 9 of the '3286 patent. 1. Standard A patent is infringed when a person “without authority makes, uses or sells any patented invention, within the United States ... during the term of the patent.” 35 U.S.C. § 271(a). A two-step analysis is employed in making an infringement determination. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir. 1995). First, the court must construe the asserted claims to ascertain their meaning and scope. Id. Construction of the claims is a question of law subject to de novo review. See Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1454 (Fed.Cir.1998). The trier of fact must then compare the properly construed claims with the accused infringing product. Markman, 52 F.3d at 976. This second step is a question of fact. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). “Direct infringement requires a party to perform each and every step or element of a claimed method or product.” BMC Res., Inc. v. Paymentech, L.P., 498 F.3d 1373, 1378 (Fed.Cir.2007). “If any claim limitation is absent from the accused device, there is no literal infringement as a matter of law.” Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed. Cir.2000). If an accused product does not infringe an independent claim, it also does not infringe any claim depending thereon. Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989). The patent owner has the burden of proving infringement and must meet its burden by a preponderance of the evidence. Smith-Kline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). 2. Analysis In order to prevail on its motion for summary judgment of non-infringement, the court must adopt each of BSC’s proffered claim definitions. The court has declined to do so, necessitating the denial of BSC’s motion. The" }, { "docid": "7670178", "title": "", "text": "14, 1997 which recited a “circuit for producing video signals over video signals that are produced by a remote computer.” Id. The district court held “[without question, this indicates that Plaintiff understood that ‘overlay’ means having the ability to physically place one signal over another.” Id. In light of its claim construction, the district court found that none of the accused products infringes any of the asserted claims in the patents literally or under the doctrine of equivalents. The district court simply stated that there is no infringement of the patents because “the accused devices do not, but must, embody every element of any of the claims as properly interpreted.” Id. at 170. Apex timely appealed the district court’s final judgment and we have jurisdiction over this appeal pursuant to 28 U.S.C. § 1295(a)(1). II. DISCUSSION A. Standard of Review A determination of infringement requires a two-step analysis. “First, the court determines the scope and meaning of the patent claims asserted ... [and second,] the properly construed claims are compared to the allegedly infringing device.” Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454, 46 USPQ2d 1169, 1172 (Fed.Cir.1998) (en banc) (citations omitted). Step one, claim construction, is a question of law, Markman v. Westview Instruments, Inc., 52 F.3d 967, 979, 34 USPQ2d 1321, 1329 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), that we review de novo, Cybor, 138 F.3d at 1456, 46 USPQ2d at 1172. “Whether the language of a claim is to be interpreted according to 35 U.S.C. § 112, ¶ 6, i.e., whether a claim limitation is in means-plus-function format, is a matter of claim construction and is thus a question of law, reviewed de novo.” Kemco Sales, Inc. v. Control Papers Co., Inc., 208 F.3d 1352, 54 USPQ2d 1308, 1312 (Fed.Cir.2000). Step two, comparison of the claim to the accused device, requires a determination that every claim limitation, or its equivalent, be found in the accused device. Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). Those determinations are" }, { "docid": "16251178", "title": "", "text": "The first step in construing a means-plus-function claim limitation is to define the particular function of the claim limitation. Budde v. Harley-Davidson, Inc., 250 F.3d 1369, 1376 (Fed.Cir.2001). “The court must construe the function of a means-plus-function limitation to include the limitations contained in the claim language, and only those limitations.” Cardiac Pacemakers, Inc. v. St. Jude Med., Inc., 296 F.3d 1106, 1113 (Fed.Cir.2002).... Ordinary principles of claim construction govern interpretation of this claim language, see id., and ... we construe this function according to its ordinary meaning.... The next step in construing a means-plus-function claim limitation is to look to the specification and identify the corresponding structure for that function. “Under this second step, ‘structure disclosed in the specification is “corresponding” structure only if the specification or prosecution history clearly links or associates that structure to the function recited in the claim.’ ” Med. Instrumentation & Diagnostics Corp. v. Elekta AB, 344 F.3d 1205, 1210 (Fed.Cir.2003) (quoting B. Braun Med. Inc. v. Abbott Labs., 124 F.3d 1419, 1424 (Fed.Cir.1997)). Golight, Inc. v. Wal-Mart Stores, Inc., 355 F.3d 1327, 1333-34 (Fed.Cir.2004); ACTV, Inc., 346 F.3d at 1087 (“In construing a means-plus-function limitation drafted in accordance with § 112, ¶ 6, the recited function within that limitation must first be identified. Then, the written description must be examined to determine the structure that corresponds to and performs that function.”) (citations omitted). Infringement, in turn, depends upon a comparison of the properly construed claims of the patent to the accused device. See, e.g., Deering Precision Instruments, L.L.C. v. Vector Distrib. Sys., Inc., 347 F.3d 1314, 1322 (Fed.Cir.2003) (“An infringement analysis, whether literal or under the doctrine of equivalents, requires two steps: (1) construction of the claims to determine the scope and meaning of the asserted claims; and (2) comparison of the properly construed claims with the allegedly infringing device.”), cert. denied, — U.S. -, 124 S.Ct. 1426, 158 L.Ed.2d 88 (2004). A patentee may prove infringement of a means-plus-function claim under either a literal infringement theory or a doctrine of equivalents theory. See Lockheed Martin Corp. v. Space Sys./Loral, Inc., 324 F.3d" }, { "docid": "9788721", "title": "", "text": "Motion for Summary Judgment of Literal Infringement and Philips’s Cross-Motion for Summary Judgment of Nonin-fringement A patent is infringed when a person “without authority makes, uses or sells any patented invention, within the United States ... during the term of the patent.” 35 U.S.C. § 271(a). A court should employ a two-step analysis in making an infringement determination. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995). First, the court must construe the asserted claims to ascertain their meaning and scope. Id. Construction of the claims is a question of law subject to de novo review. See Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1454 (Fed.Cir.1998). The trier of fact must then compare the properly construed claims with .the accused infringing product. Markman, 52 F.3d at 976. This second step is a question of fact. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). Literal infringement occurs where each limitation of at least one claim of the patent is found exactly in the alleged infringer’s product. Panduit Corp. v. Dennison Mfg. Co., 836 F.2d 1329, 1330 n. 1 (Fed.Cir.1987). The patent owner lias the burden of proving infringement and must meet its burden by a preponderance of the evidence. Smith-Kline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). Izumi argues that the accused infringing electric rotary razors meet every limitation recited in claims 1, 2, and 3 of the ’749 patent under its proposed claim construction. Izumi, therefore, contends that there are no genuine issues of material fact regarding literal infringement and that summary judgment should be granted in its favor. In rebuttal, Philips asserts that its electric rotary razors do not contain the “recess beneath/recess below” limitation of the asserted claims. Philips claims that the groove on its electric rotary razors is formed instead at the cutting edge surface and is orientated vertically with respect to the cutting edge surface. As a result, Philips maintains that its electric rotary razors do not infringe the ’749 patent. Based upon the court’s claim construction of the phrases “a recess comprising" }, { "docid": "1666253", "title": "", "text": "Digital Biometrics, Inc. v, Identix, Inc., 149 F.3d 1335, 1343-44 (Fed.Cir.1998); C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 861 (Fed.Cir.2004) (stating that “[a] long line of cases indicates that the intrinsic record is the primary source for determining claim meaning”). “When an analysis of intrinsic evidence resolves any ambiguity in a disputed claim term, it is improper to rely on extrinsic evidence to contradict the meaning so ascertained.” Intel Corp. v. VIA Techs., Inc., 319 F.3d 1357, 1367 (Fed.Cir.2003) (emphasis in original) (citing Vitronics Corp., 90 F.3d at 1583). If there is doubt regarding the meaning of the claim terms, however, “consideration of extrinsic evidence may be necessary to determine the proper construction.” Vitronics, 90 F.3d at 1583. If after examination of extrinsic evidence the claim remains ambiguous and susceptible to different meanings, the court will generally accept the narrower definition. Id. at 1582. “The second step of the infringement analysis is comparing the properly construed claims with the allegedly infringing devices.” Apex Inc. v. Raritan Computer, Inc., 325 F.3d 1364, 1377 (Fed.Cir.2003) (citing Cybor Corp. v. FAS Technologies, Inc., 138 F.3d 1448, 1467 (Fed.Cir.1998)). “Infringement, whether literal or under the doctrine of equivalents, is a question of fact.” Linear Tech. Corp. v. Impala Linear Corp., 379 F.3d 1311, 1318 (Fed.Cir.2004) (citation omitted); see also Nystrom v. Trex, 374 F.3d 1105, 1110 (Fed.Cir.2004). The patentee prevails on a claim of patent infringement if he establishes that “the accused device meets each claim limitation, either literally or under the doctrine of equivalents.” Deering Pre cision Instruments, L.L.C. v. Vector, 347 F.3d 1314, 1324 (Fed.Cir.2003). Literal infringement of a claim in a patent exists “when each of the claim limitations reads on, or in other words is found in, the accused device.” Allen Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1345 (Fed.Cir.2002) (internal quotation marks and citation omitted); TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360, 1372 (Fed. Cir.2002) (stating that “[t]o establish literal infringement, all of the elements of the claim, as correctly construed, must be present in the accused system”) (citation omitted). A device that" }, { "docid": "23208784", "title": "", "text": "United States, 243 F.3d 1359, 1362 (Fed.Cir. Mar.23, 2001). A determination of infringement requires a two-step analysis. “First, the claim must be properly construed to determine its scope and meaning. Second, the claim as properly construed must be compared to the accused device or process.” Carroll Touch, Inc. v. Electro Mech. Sys., Inc., 15 F.3d 1573, 1576, 27 USPQ2d 1836, 1839 (Fed.Cir.1993). “In order for a court to find infringement, the plaintiff must show the presence of every ... [limitation] or its substantial equivalent in the accused device.” Wolverine World Wide, Inc. v. Nike, Inc., 38 F.3d 1192, 1199, 32 USPQ2d 1338, 1341 (Fed.Cir.1994). Claim construction is an issue of law that we review de novo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456, 46 USPQ2d 1169, 1174 (Fed.Cir.1998) (en banc); Markman v. Westview Instruments, Inc., 52 F.3d 967, 979, 34 USPQ2d 1321, 1322 (Fed.Cir. 1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). The determination of infringement, whether literal or under the doctrine of equivalents, is a question of fact. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353, 48 USPQ2d 1674, 1676 (Fed.Cir.1998). An infringement issue is properly decided upon summary judgment when no reasonable jury could find that every limitation recited in the properly construed claim either is or is not found in the accused device either literally or under the doctrine of equivalents. Id. Like the determination of infringement, compliance with the marking statute, 35 U.S.C. § 287(a), is a question of fact, Maxwell v. J. Baker, Inc., 86 F.3d 1098, 1111, 39 USPQ2d 1001, 1010 (Fed. Cir.1996). Thus, this issue is properly decided upon summary judgment when no reasonable jury could find that the patentee either has or has not provided actual notice to the “ ‘particular defendants by informing them of his patent and of their infringement of it.’ ” Amsted Indus. Inc., v. Buckeye Steel Castings Co., 24 F.3d 178, 187, 30 USPQ2d 1462, 1469 (Fed.Cir.1994) (quoting Dunlap v. Schofield, 152 U.S. 244, 247-48, 14 S.Ct. 576, 38 L.Ed. 426 (1894)). II. Analysis A." }, { "docid": "15067896", "title": "", "text": "757 F.2d 255 (Fed.Cir.1985). The district court held that prosecution history estoppel applies to any limitation narrowed during prosecution in all claims in the patent regardless of whether the limitation is present in a claim that itself was never amended. After Vector obtained summary judgment, it moved for an award of attorney fees pursuant to 35 U.S.C. § 285. Vector argued that Deering failed to consult with a patent attorney to properly evaluate the prosecution history and that the purpose of the litigation was to harass, intimidate, or financially undermine Vector. The district court determined that failure to obtain advice of intellectual property counsel with respect to infringement under the doctrine of equivalents was not per se gross negligence and also determined that Deering’s conduct was “far from harassing, intimidating, or overbearing behavior.” Accordingly, the district court denied Vector’s motion. Both parties timely appealed to this court and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). II. DISCUSSION We review the grant of summary judgment de novo, drawing all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Moore U.S.A., Inc. v. Standard Register Co., 229 F.3d 1091, 1105 (Fed.Cir.2000). Claim construction is a question of law subject to de novo review on appeal. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed.Cir.1998) (en banc). The determination of whether a case is exceptional and thus eligible for an award of attorney fees under 35 U.S.C. § 285 is a factual determination reviewed for clear error. Superior Fireplace Co. v. Majestic Prods. Co., 270 F.3d 1358, 1376 (Fed.Cir.2001). The subsequent determination of whether attorney fees are appropriate is reviewed for an abuse of discretion. Id. An infringement analysis, whether literal or under the doctrine of equivalents, requires two steps: (1) construction of the claims to determine the scope and meaning of the asserted claims; and (2) comparison of the properly construed claims with the allegedly infringing device. Cybor, 138 F.3d at 1454. A. Claim Construction In construing the claims of a patent, we" }, { "docid": "16296720", "title": "", "text": "federal trial courts first to determine “the scope and meaning of the patent claims asserted[.]” Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998) (en banc) (citations omitted); see also JVW Enterprises, Inc. v. Interact Accessories, Inc., 424 F.3d 1324, 1329 (Fed.Cir.2005). On June 14, 2005, the court issued a determination of the claims that the parties asserted were at issue. See Honeywell Int’l, Inc. v. United States, 66 Fed.Cl. 400 (2005). Next, federal trial courts are to compare each of the “properly construed” claims to the alleged infringing device. See Cybor, 138 F.3d at 1454 (en banc); see also PC Connector Solutions, LLC v. SmartDisk Corp., 406 F.3d 1359, 1362 (Fed.Cir.2005); SmithKline Beecham Corp. v. Apotex Corp., 403 F.3d 1331, 1337 (Fed.Cir.2005). This comparison requires the court to determine whether each claim limitation is present in the accused device, or, in the alternative, to determine whether the accused device contains an “equivalent” for each of the “individual elements of the claim, not to the invention as a whole.” Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997); see also Dynacore Holdings Corp. v. U.S. Philips Corp., 363 F.3d 1263, 1273 (Fed.Cir.2004). The burden of proof rests on the patentee to “show that the accused device meets each claim limitation, either literally or under the doctrine of equivalents.” Liquid Dynamics Corp. v. Vaughan Co., 355 F.3d 1361, 1367 (Fed.Cir.2004) (citing Deering Precision Instruments, L.L.C. v. Vector Distrib. Sys., Inc., 347 F.3d 1314, 1324 (Fed.Cir.2003)); see also Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 935-36 (Fed.Cir.1987) (en banc). Under either theory, infringement must be established by a preponderance of the evidence. See Centricut, LLC v. Esab Group, Inc., 390 F.3d 1361, 1367 (Fed.Cir.2004), cert. denied, — U.S. -, 126 S.Ct. 337, 163 L.Ed.2d 49 (2005). D. Controlling Precedent Concerning Literal Infringement. In Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 607, 70 S.Ct. 854, 94 L.Ed. 1097 (1950), the United States Supreme Court held: “In determining whether an accused device ... infringes a valid" }, { "docid": "5710510", "title": "", "text": "from the jury’s verdict cannot in law be supported by those findings.” Celeritas Techs., Ltd. v. Rockwell Int’l Corp., 150 F.3d 1354, 1358, 47 USPQ2d 1516, 1519 (Fed.Cir.1998) (internal quotation marks omitted). On appeal, this court must consider the record evidence in the light most favorable to the non-movant, “drawing all reasonable inferences in its favor, without disturbing the jury’s credibility determinations or substituting our resolutions of conflicting evidence for those of the jury.” Applied Med. Resources v. U.S. Surgical, 147 F.3d 1374, 1377, 47 USPQ2d 1289, 1290 (Fed. Cir.1998). A determination of infringement requires a two-step analysis. See Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473, 1476, 45 USPQ2d 1498, 1500 (Fed.Cir.1998). “First, the claim must be properly construed to determine its scope and meaning. Second, the claim as properly construed must be compared to the accused device or process.” Id. (quoting Carroll Touch, Inc. v. Electro Mechanical Sys., Inc., 15 F.3d 1573, 1576, 27 USPQ2d 1836, 1839 (Fed.Cir.1993)). “Literal infringement requires that every limitation of the patent claim be found in the accused device.” General Mills, Inc. v. Hunt-Wesson, Inc., 103 F.3d 978, 981, 41 USPQ2d 1440, 1445 (Fed.Cir.1997). “An accused device that does not literally infringe a claim may still infringe under the doctrine of equivalents if each limitation of the claim is met in the accused device either literally or equivalently.” Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1459, 46 USPQ2d 1169, 1177 (Fed.Cir.1998) (en banc). Claim construction is an issue of law, see Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71, 34 USPQ2d 1321, 1322 (Fed.Cir.1996) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), that we review de novo. See Cybor, 138 F.3d at 1456, 46 USPQ2d at 1172. Determination of infringement, whether literal or under the doctrine of equivalents, is a question of fact. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353, 48 USPQ2d 1674, 1676 (Fed.Cir.1998). Following a jury verdict of infringement, we review a district court’s denial of a permanent injunction under 35 U.S.C. § 283 for abuse of" }, { "docid": "15822669", "title": "", "text": "must be read in view of the specification and prosecution history. Indeed, the specification is often “the single best guide to the meaning of a disputed term.” Phillips, 415 F.3d at 1315. B. Infringement A patent is infringed when a person “without authority makes, uses or sells any patented invention, within the United States ... during the term of the patent.” 35 U.S.C. § 271(a). A two-step analysis is employed in making an infringement determination. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995). First, the court must construe the asserted claims to ascertain their meaning and scope. See id. Construction of the claims is a question of law subject to de novo review. See Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1454 (Fed.Cir.1998). The trier of fact must then compare the properly construed claims with the accused infringing product. See Markman, 52 F.3d at 976. This second step is a question of fact. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). “Direct infringement requires a party to perform each and every step or element of a claimed method or product.” BMC Res., Inc. v. Paymentech, L.P., 498 F.3d 1373, 1378 (Fed.Cir.2007), overruled on other grounds by 692 F.3d 1301 (Fed.Cir.2012). “If any claim limitation is absent from the accused device, there is no literal infringement as a matter of law.” Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed.Cir.2000). If an accused product does not infringe an independent claim, it also does not infringe any claim depending thereon. See Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989). However, “[o]ne may infringe an independent claim and not infringe a claim dependent on that claim.” Monsanto Co. v. Syngenta Seeds, Inc., 503 F.3d 1352, 1359 (Fed.Cir.2007) (quoting Wahpeton Canvas, 870 F.2d at 1552) (internal quotations omitted). A product that does not literally infringe a patent claim may still infringe under the doctrine of equivalents if the differences between an individual limitation of the claimed invention and an element of the accused product are insubstantial. See Warner-Jenkinson Co." }, { "docid": "16329369", "title": "", "text": "test for patent infringement requires a two step analysis: “First, the claim must be properly construed to determine its scope and meaning. Second, the claim as properly construed must be compared to the accused device or process.” Carroll Touch, Inc. v. Electro Mech. Sys., Inc., 15 F.3d 1573, 1576 (Fed.Cir.1993). “In order for a court to find infringement, the plaintiff must show the presence of every limitation or its substantial equivalent in the accused device.” KX Industries, 18 Fed.Appx. 871, 875, 2001 WL 902507, *3 (Fed.Cir.2001)(citing Wolverine World Wide, Inc. v. Nike, Inc., 38 F.3d 1192, 1199 (Fed.Cir.1994)). Although claim construction is an issue of law, the determination of infringement is a question of fact. Id. “A district court should approach a motion for summary judgment on the fact issue of infringement with great care.” Cole v. Kimberly-Clark Corp., 102 F.3d 524, 528 (Fed.Cir.1996). Nonetheless, summary judgment of infringement may be granted when a rational jury could only conclude that infringement has occurred. See Karlin Tech. Inc. v. Surgical Dynamics, Inc., 177 F.3d 968, 974-75 (Fed.Cir.1999). INFRINGEMENT UNDER THE DOCTRINE OF EQUIVALENTS A product may infringe a patent either literally or equivalently. Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1459 (Fed.Cir.1998). Plaintiffs cannot argue that each limitation of the claims at issue in patents ’942, ’912, ’274, and ’974, are satisfied exactly by the accused products, as required to prove literal infringement. Instead, they rely on the doctrine of equivalents which “prevents an accused infringer from avoiding liability for infringement by changing only minor or insubstantial details of a claimed invention while retaining the invention’s essential identity.” Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 234 F.3d 558, 564 (Fed.Cir.2000)(“Festo VI”). Infringement under the doctrine of equivalents is found “only when a patentee shows by a preponderance of the evidence that the accused product or process contain[s] elements identical or equivalent to each claimed element of the patented invention.” Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 40, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). Application of the doctrine of equivalents requires a fact intensive analysis to" }, { "docid": "5829411", "title": "", "text": "Infringement A patent is infringed when a person “without authority makes, uses or sells any patented invention, within the United States ... during the term of the patent.” 35 U.S.C. § 271(a). A two-step analysis is employed in making an infringement determination. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995). First, the court must construe the asserted claims to ascertain their meaning and scope. Id. Construction of the claims is a question of law subject to de novo review. See Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1454 (Fed.Cir.1998). The trier of fact must then compare the properly construed claims with the accused infringing product. Markman, 52 F.3d at 976. This second step is a question of fact. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). “Direct infringement requires a party to perform or use each and every step or element of a claimed method or product.” BMC Res., Inc. v. Paymentech, LP., 498 F.3d 1373, 1378 (Fed.Cir.2007). “If any claim limitation is absent from the accused device, there is no literal infringement as a matter of law.” Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed.Cir.2000). If an accused product does not infringe an independent claim, it also does not infringe any claim depending thereon. See Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989). A product that does not literally infringe a patent claim may still infringe under the doctrine of equivalents if the differences between an individual element of the claimed invention and an element of the accused product are insubstantial. Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 24, 117 S.Ct. 1040, 137 L.Ed.2d 146 (U.S.1997). The patent owner has the burden of proving infringement and must meet its burden by a preponderance of the evidence. SmithKline Diagnostics, Inc. v. Helena Labs. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). In support of its motion for summary judgment of infringement, BSC contends that collateral estoppel bars Cordis from arguing that its 2.25 mm Cypher stent does not infringe claim 36 of" }, { "docid": "23705401", "title": "", "text": "plots and the flow pattern required under the court’s claim construction. The district court granted summary judgment in favor of Vaughan and mooted Vaughan’s counterclaims for invalidity and inequitable conduct. Both parties timely appealed. We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION A. Standard of Review This court reviews the grant of summary judgment de novo. Genzyme Corp. v. Transkaryotic Therapies, Inc., 346 F.3d 1094, 1096 (Fed.Cir.2003); Pickholtz v. Rainbow Techs., Inc., 284 F.3d 1365, 1371 (Fed.Cir.2002); Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir.1998). Summary judgment is appropriate when there are no issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A determination of patent infringement requires a two-step analysis. The court must first interpret the claim and determine the scope and the meaning of the asserted patent claims, and then compare the properly construed claims to the allegedly infringing device. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998). The first step, claim construction, is a matter of law that we review de novo. Id. at 1451. The second step is a factual question that we review following a trial for clear error. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). When conducting a de novo review of a district court’s grant of summary judgment, however, we construe the facts in the light most favorable to the non-movant. Mazzari v. Rogan, 323 F.3d 1000, 1005 (Fed.Cir.2003). To prove infringement, the patentee must show that the accused device meets each claim limitation, either literally or under the doctrine of equivalents. Deering Precision Instruments, L.L.C. v. Vector Distrib. Sys., Inc., 347 F.3d 1314, 1324 (Fed.Cir. 2003). We review the district court’s decision to moot Vaughan’s counterclaims for abuse of discretion. Phonometrics, Inc. v. N. Tele-com, Inc., 133 F.3d 1459, 1468 (Fed.Cir. 1998). B. Claim Construction Courts construe claims by considering the evidence necessary to resolve disputes about claim" }, { "docid": "23705402", "title": "", "text": "allegedly infringing device. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998). The first step, claim construction, is a matter of law that we review de novo. Id. at 1451. The second step is a factual question that we review following a trial for clear error. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). When conducting a de novo review of a district court’s grant of summary judgment, however, we construe the facts in the light most favorable to the non-movant. Mazzari v. Rogan, 323 F.3d 1000, 1005 (Fed.Cir.2003). To prove infringement, the patentee must show that the accused device meets each claim limitation, either literally or under the doctrine of equivalents. Deering Precision Instruments, L.L.C. v. Vector Distrib. Sys., Inc., 347 F.3d 1314, 1324 (Fed.Cir. 2003). We review the district court’s decision to moot Vaughan’s counterclaims for abuse of discretion. Phonometrics, Inc. v. N. Tele-com, Inc., 133 F.3d 1459, 1468 (Fed.Cir. 1998). B. Claim Construction Courts construe claims by considering the evidence necessary to resolve disputes about claim terms and to assign a fixed, unambiguous, legally operative meaning to the claim. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). It is well-settled that, in interpreting an asserted claim, the court should look first to the intrinsic evidence of record, i.e., the patent itself, including the claims, the specification and, if in evidence, the prosecution history. Such intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language. Id. We examine this intrinsic evidence seriatim. “We look first to the claim language itself, to define the scope of the patented invention. As a starting point, we give claim terms their ordinary and accustomed meaning as understood by one of ordinary skill in the art.” Dow Chem. Co. v. Sumitomo Chem. Co., 257 F.3d 1364, 1372 (Fed.Cir.2001). We look to the written description for guidance “when the claim language itself lacks sufficient clarity to ascertain the scope of the claims.” Deering, 347 F.3d at 1322. We also look at the written description “to determine whether the inventor has" }, { "docid": "11835482", "title": "", "text": "judgment of non-infringement de novo, reapplying the standard used by the district court. Innogenetics, N.V. v. Abbott Labs., 512 F.3d 1363, 1378 (Fed.Cir.2008). Summary judgment is appropriate where, drawing all reasonable inferences in favor of the non-movant, there is no genuine issue as to any material fact and no reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The determination of infringement is a two-step process, wherein the court first construes the claims and then determines whether every claim limitation, or its equivalent, is found in the accused device. In re Gabapentin Patent Litig., 503 F.3d 1254, 1259 (Fed.Cir.2007). While claim construction is a question of law that we review de novo, Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed.Cir.1998) (en banc), non-infringement under the reverse doctrine of equivalents is a question of fact. SRI Int’l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1124 (Fed.Cir.1985). We review the district court’s application of the doctrine of claim preclusion de novo. Acumed LLC v. Stryker Corp., 525 F.3d 1319, 1322-24 (Fed.Cir.2008); Maldonado v. Harris, 370 F.3d 945, 949 (9th Cir.2004); Littlejohn v. United States, 321 F.3d 915, 919 (9th Cir.2003). III Apotex does not dispute that the ANDA-2 formulation falls within the literal scope of claim 1 of the '493 patent. Instead, Apotex argues that the district court erred in failing to find non-infringement by the ANDA-2 formulation under the reverse doctrine of equivalents. The reverse doctrine of equivalents is an equitable doctrine designed “to prevent unwarranted extension of the claims beyond a fair scope of the paten-tee’s invention.” Scripps Clinic & Research Found. v. Genentech, Inc., 927 F.2d 1565, 1581 (Fed.Cir.1991). According to the Supreme Court: [W]here a device is so far changed in principle from a patented article that it performs the same or similar function in a substantially different way, but nevertheless falls within the literal words of the claim, the [reverse] doctrine of equivalents may be used to restrict the claim and defeat the patentee’s action" }, { "docid": "18418960", "title": "", "text": "a person “without authority makes, uses or sells any patented invention, within the United States ... during the term of the patent.” 35 U.S.C. § 271(a) (2002). A court should employ a two-step analysis in making an infringement determination. See Mark-man v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). First, the court must construe the asserted claims to ascertain their meaning and scope. See id. Construction of the claims is a question of law subject to de novo review. See Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1454 (Fed.Cir.1998) (en banc).' The trier of fact must then compare the properly construed claims with the accused infringing product. See id. This second step is a question of fact. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). Literal infringement occurs when each limitation of at least one claim of the patent is found exactly in the alleged infringer’s product. See Panduit Corp. v. Dennison Mfg. Co., 836 F.2d 1329, 1330 n. 1 (Fed.Cir.1987). The patent owner has the burden of prov ing literal infringement and must meet its burden by a preponderance of the evidence. See SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). b. Evidence Before the Jury The invention at bar is a method for processing loan applications. Defendant asserts that its accused system, the Lending-Tree Exchange, cannot literally infringe the asserted claims of the ’947 patent because defendant does not process “loan applications” as required by the claims. (D.I. 269 at 9-23) The court construed the term “loan application” as used in the claims of the ’947 patent to mean “a request for an extension of credit in a format that contains sufficiently detailed information to enable a lender to grant or deny the request.” (D.I. 224 at 3) The crux of defendant’s argument is that there was no evidence presented by plaintiff at trial that the information collected in defendant’s Qualification Form (“QF”), without more, is sufficient for a lender to grant" }, { "docid": "20677574", "title": "", "text": "a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial”). B. Infringement A patent is infringed when a person “without authority makes, uses or sells any patented invention, within the United States ... during the term of the patent.” 35 U.S.C. § 271(a). A two-step analysis is employed in making an infringement determination. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir.1995). First, the court must construe the asserted claims to ascertain their meaning and scope. See id. Construction of the claims is a question of law subject to de novo review. See Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1454 (Fed.Cir.1998). The trier of fact must then compare the properly construed claims with the accused infringing product. See Markman, 52 F.3d at 976. This second step is a question of fact. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). “Direct infringement requires a party to perform each and every step or element of a claimed method or product.” BMC Res., Inc. v. Paymentech, LP., 498 F.3d 1373, 1378 (Fed.Cir.2007), overruled on other grounds by 692 F.3d 1301 (Fed. Cir.2012). “If any claim limitation is absent from the accused device, there is no literal infringement as a matter of law.” Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed.Cir.2000). If an accused product does not infringe an independent claim, it also does not infringe any claim depending thereon. See Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989). However, “[o]ne may infringe an independent claim and not infringe a claim dependent on that claim.” Monsanto Co. v. Syngenta Seeds, Inc., 503 F.3d 1352, 1359 (Fed.Cir.2007) (quoting Wahpeton Canvas, 870 F.2d at 1552) (internal quotations omitted). A product that does not literally infringe a patent claim may still infringe under the doctrine of equivalents if the differences between an individual limitation of the claimed invention and an element of the accused product are" }, { "docid": "9528876", "title": "", "text": "638 (1995); Brennan, 929 F.2d at 348 (7th Cir.1991); King v. Preferred Technical Group, 166 F.3d 887, 890 (7th Cir.1999)(citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). Furthermore, it is required to analyze summary judgment motions under the standard of proof relevant to the case or issue. Anderson, 477 U.S. at 252-55, 106 S.Ct. 2505. Summary judgment is not a disfavored procedural shortcut, but rather is intended to avoid a useless trial, and is appropriate where it is quite clear what the truth is, Babrocky v. Jewel Food Co. & Retail Meatcutters, 773 F.2d 857, 861 (7th Cir.1985). Applying the above standards, this Court addresses the cross-motion for summary judgment. ANALYSIS Determining patent infringement requires determining whether an individual without authority makes, uses, offers to sell, sells, or imports the patented invention within the United States, its territories, or its possessions, during the term of the patent, 35 U.S.C. § 271(a). Patent infringement may be established through literal infringement analysis or through the doctrine of equivalents. Mas-Hamilton Group v. LaGard Inc., 156 F.3d 1206, 1211 (Fed.Cir.1998); Ethicon Endo-Surgery Inc. v. United States Surgical Corp., 149 F.3d 1309, 1315-20 (Fed.Cir.1998). Literal Infringement Infringement generally exists if any one of a patent’s claims covers the alleged infringer’s product or process. Markman v. Westview Instruments Inc., 517 U.S. 370, 374, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Whether a patent claim covers an alleged infringer’s product or process requires two steps: Claim interpretation, which is a matter of law, then whether the alleged product or process actually infringes the claims, which is a question of fact. Markman at 374, 116 S.Ct. 1384. For literal infringement, every limit set forth in the claim must be found in an accused product, exactly. Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, (Fed.Cir.1995), cert. denied, 516 U.S. 987, 116 S.Ct. 515, 133 L.Ed.2d 424. There can be no infringement if any claim element is missing from an accused product. Southwall Techs., 54 F.3d at 1575. There is literal infringement if each properly construed claim element" } ]

[ { "docid": "1312558", "title": "", "text": "to the fact of the conviction itself. Id. at 103. We explained that “[t]he underlying facts of the conviction ... are completely irrelevant to § 922(g)(1)” because “[t]he jury has no need to know the nature of the prior conviction.” Id. “[A]ll that [the jury] needs to know,” we emphasized, “is that there was a prior conviction sufficient to sustain that element of the [§ 922(g)(1)] crime.” Id. (citing United States v. Borello, 766 F.2d 46 (2d Cir.1985)). In the instant case, the District Court conscientiously and carefully took precautions to protect defendant from undue prejudice. The Court delivered a curative instruction to the jury both at the time the evidence was introduced and in its jury charge. See note 4, ante. In addition, the evidence of the prior conviction was introduced by a one-sentence stipulation stating only that defendant was “convicted in New York State Supreme Court, upon his plea of guilty, of a crime punishable by imprisonment for a term exceeding one year.” To further reduce prejudice, the Court redacted parts of the indictment and instructed the Government “to refrain from characterizing Mr. Belk as a ‘convicted felon’ in its arguments at trial.” See note 4, ante. Under these circumstances, the method by which the District Court introduced evidence of defendant’s prior conviction was not erroneous and was, indeed, commendable. For the foregoing reasons, the District Court did not err when it refused to bifurcate defendant’s trial to provide for separate consideration of the elements of the felon-in-possession charge under 18 U.S.C. § 922(g)(1). III. The Sentencing Claim Defendant also challenges his sentence, arguing that the District Court erred in concluding that it lacked the authority to depart downwardly based on defendant’s young age (14 to 15 years old) when he committed the three armed robberies that served as the predicate for his enhanced sentence under the ACCA. The District Court determined that defendant’s base offense level was 33, based on U.S.S.G. § 4B1.4, because he is, as a matter of law under 18 U.S.C. § 924(e), an “Armed Career Criminal” with three prior violent felony convictions —" } ]

[ { "docid": "22278778", "title": "", "text": "after the fact under 18 U.S.C. § 3 are (1) commission of a specified offense by some person, (2) the defendant’s knowledge of the crime’s commission and the principal’s participation in it, and (3) the defendant’s assistance to the principal “with the specific purpose or plan to hinder or prevent” the principal’s “apprehension, trial, or punishment.” Leonard B. Sand, et al., 1 Modem Federal Jury Instructions: Criminal, Instruction 12-2 (2002). As this recitation demonstrates, a defendant need not join in a robbery conspiracy to be guilty as an accessory to that crime. But an accessory’s guilt does depend on proof of an element separate and distinct from those required to convict for conspiracy, specifically, the accessory’s after-the-fact assistance to a member of the conspiracy with the specific purpose to hinder or prevent that person’s apprehension, trial, or punishment. Accordingly, because we conclude that neither the Constitution nor Rule 31(c) required the district court to give an accessory instruction to the jury in this case, we reject Snype’s challenge to the charge as without merit. E. Snype’s Challenges to His Sentence Are Without Merit 1. The Application of § 3559(c)(1) to Snype’s Case Although a § 371 conspiracy conviction generally exposes a defendant to a maximum prison term of five years, see 18 U.S.C. § 371, Snype was sentenced to a mandatory term of life imprisonment pursuant to 18 U.S.C. § 3559(c)(1). Section 3559(c)(1) states in relevant part: Notwithstanding any other provision of law, a person who is convicted in a court of the United States of a serious violent felony shall be sentenced to life imprisonment if— (A) the person has been convicted (and those convictions have become final) on separate prior occasions in a court of the United States or of a State of— (i) 2 or more serious violent felonies As this language indicates, the statutory mandate is triggered by proof of two facts: (1) the crime for which a defendant is about to be sentenced must itself be a “serious violent felony,” and (2) the defendant must, on at least two separate prior occasions, have been convicted" }, { "docid": "19462484", "title": "", "text": "as proof of his bad character.\" Id. at 97. He primarily relied on Federal Rule of Evidence 403 and Old Chief , 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574. In response, the Government conceded that, if Mr. Silva stipulated he was a convicted felon, it could not inform the jury about \"the nature of the previous felony.\" ROA, Vol. 1 at 213. But it argued that Old Chief did not require the court to modify the relevant pattern jury instruction to say that Mr. Silva was a \"prohibited person\" rather than a \"person who has been previously convicted in any court of a felony.\" Id. at 214 (quoting Tenth Circuit Pattern Jury Instruction 2.44-Possession of a Firearm by a Convicted Felon 18 U.S.C. § 922(g)(1) ). At a hearing on this motion, counsel for Mr. Silva said, \"The record should reflect that we are prepared to stipulate to the fact of Mr. Silva's prior felony conviction so long as it is clear from the record that we are not giving up our opportunity to challenge that matter on appeal.\" ROA, Vol 4 at 48. The district court denied the motion, stating it lacked merit under Prieto , 565 Fed.Appx. at 763. The court said it would follow the Tenth Circuit's pattern jury instruction, which required the jury to find Mr. Silva had been previously convicted of a felony. At the first trial, the judge, just before presenting the jury instructions, read the following stipulation to the jury: The first stipulation is entitled Stipulation Regarding Prior Felony Convictions. It reads as follows: The parties, by and through their undersigned counsel stipulate and agree as follows: 1. [T]he defendant, Samuel Silva, prior to July 1, 2014, had been convicted of a crime punishable by imprisonment for a term exceeding one year. That is, a felony offense, as charged in the indictment in this case. 2. [T]his stipulated fact is proved beyond a reasonable doubt and may be read to the jury at trial. This stipulation also relieves the government of its burden of proof with regard to the defendant's status" }, { "docid": "22841411", "title": "", "text": "the jury that it should limit its consideration of evidence “of other crimes, wrongs, or acts ... as proof of knowledge or intent.” Rec. vol. I, doc. 34, Jury Instruction No. 20. However, we have held that even if the district court fails to identify the purpose for which it admits possible Rule 404(b) evidence, such error is harmless if its purpose is apparent from the record and it was properly admitted. United States v. Williams, 923 F.2d 1397, 1401 (10th Cir.1990). Although it is preferable to give the direct instructions, we find the specific purpose for admitting the testimony concerning the prior acts is clear from the record. Therefore, we conclude that the testimony of Officer Easter and Detective Fettke regarding Mr. Wilson’s pri- or acts satisfy the four elements of the Huddleston test for admission under Rule 404(b). 2. Prior Conviction Mr. Wilson argues that the district court erred in allowing evidence regarding his pri- or conviction for cocaine possession. Mr. Wilson was willing to stipulate that he had a prior felony conviction in order to support the felon in possession of firearms and ammunition charges under 18 U.S.C. § 922(g)(1). Nevertheless, the district court allowed the government to introduce the pri- or conviction to support the prior felony charge and to show “knowledge” with respect to the possession of cocaine with intent to distribute charge under 28 U.S.C. § 841(a)(1). This evidence was admitted through Officer Gores’s testimony that he stopped Mr. Wilson on July 23, 1994 for a suspended driver’s license and, after arresting him, found crack cocaine and marijuana on his person. The evidence also included the admission of the journal entry from Mr. Wilson’s conviction. Mr. Wilson’s counsel did object to the introduction of this evidence both in a motion in limine and at trial, and therefore we review the district court’s admission of the prior conviction evidence for an abuse of discretion. We first consider whether it was proper to admit evidence of Mr. Wilson’s prior conviction for the purpose of proving an element of the § 922(g)(1) charges, where Mr. Wilson offered" }, { "docid": "1312553", "title": "", "text": "this case is distinguishable from Gilliam because “Gilliam held only that the Government cannot be forced to accept a prior-felony stipulation that kept this element from the jury altogether,” whereas the instant case addresses “a procedure separating [the] trial into two phases in which the prior felony element would be submitted to the jury ... at the second stage” of the trial. Def.’s Br. at 26. Assuming that Gilliam does not go so far as to prohibit a District Court’s bifurcation of the separate elements of a § 922(g)(1) charge, we think that Gilliam at least makes it clear that a district court’s exercise of its discretion in refusing to bifurcate the elements of a § 922(g)(1) charge is not reversible error. In Gilliam, we explained that “[a] prior conviction is not prejudicial where the prior conviction is an element of the crime,” because it “prove[s] the fact or issue that justified its admission [into evidence].” Gilliam, 994 F.2d at 100 (internal quotation marks omitted). In fact, as here, “[w]here the prior conviction is essential to proving the crime, it is by definition not prejudicial.” Id. (emphasis added). Because a district court’s admission into evidence of defendant’s prior conviction in a § 922(g)(1) case — when accompanied by a proper curative instruction and limited to the fact of the conviction itself — is by definition not prejudicial, a district court cannot err by failing to take additional measures, such as bifurcation, intended to mitigate any asserted prejudice. We thus find no error. The cases cited by defendant in support of his position that bifurcation was required are unavailing. For instance, in United States v. Orena, 811 F.Supp. 819 (E.D.N.Y.1992), Judge Weinstein, over the objection of the Government, withheld from the jury any evidence of the defendant’s prior conviction where the defendant was willing to stipulate to the fact of the conviction. We expressly disavowed this approach in Gilliam, and stated that Fed.R.Evid. 404(b) “does not authorize a district court, either by its own terms or by analogy, to take the issue of the defendant’s prior conviction from the jury.” Gilliam," }, { "docid": "22897058", "title": "", "text": "by imprisonment for a term exceeding one year. It has also been stipulated by the parties that this felony conviction occurred prior to the time that the defendant is alleged to have possessed the weapons charged in the indictment. I instruct you, in this connection, that the prior conviction that is an element of the charges here, and is not disputed, is only to be considered by you for the fact that it exists and for nothing else. You are not to consider it for any other purpose. You are not to speculate what it was for. You may not consider the prior conviction in deciding whether the defendant was in knowing possession of the gun that is charged. (J.A at 144-45 (emphasis added).) Not until the jury returned a guilty verdict did Jackson, for the first time, specifically challenge the Government’s alleged failure of proof on the issue of whether he was a felon at the time he possessed the firearm. The district court denied Jackson’s motion, concluding that its instruction regarding Jackson’s felon status, as submitted by Jackson himself, provided the jury with evidence from which it could have found the essential elements of the crime. Jackson argues that a jury instruction does not relieve the Government of its burden of proof on an essential element of the crime, even if the defendant stipulated to the existence of the element. See United States v. Muse, 83 F.3d 672, 679 (4th Cir.) (holding that “[w]hile a valid stipulation relieves the prosecution of the burden of producing any other evidence in order to establish the fact stipulated, it does not reheve the prosecution from the burden of proving every element of the crime beyond a reasonable doubt.”), cert. denied, — U.S. -, 117 S.Ct. 261, 136 L.Ed.2d 186 (1996) (internal quotation marks omitted); see also id. (“In other words, the district court may not remove the element from the jury’s consideration, even though the defendant has stipulated to that element.”). We conclude that the Government’s error in proof, if any, was invited by Jackson. Accordingly, we affirm his conviction under" }, { "docid": "11524218", "title": "", "text": "tried together. II Nguyen argues that the district court erred when it did not allow his prior felony to be bifurcated from the issue of whether he possessed the Bryco handgun. We review for abuse of discretion the district court's refusal to bifurcate the possession of the gun element from the prior conviction element. United States v. Breitkreutz, 8 F.3d 688, 690 (9th Cir.1993). We have held that a district court cannot bifurcate a trial to separately consider whether a defendant was a felon and whether he possessed a gun because, \"proof of the felony conviction is essential to the proof of the offense.\" Id. at 691 (quoting United States v. Barker, 1 F.3d 957, 959 (9th Cir.1993)). Although Nguyen is in agreement with the general rule, he argues that his case is the exception for two reasons. First, Nguyen argues that the introduction of the prior conviction prejudiced the conspiracy case. Second, Nguyen argues that it is a violation of the equal protection clause to forbid a criminal defendant, and not a civil litigant, from precluding the admission of evidence of prejudicial facts. Nguyen has presented no evidence that the introduction of the prior conviction prejudiced the conspiracy case. Furthermore, as previously discussed, the jury was given a limiting instruction on the prior conviction on two separate occasions. Nguyen has failed to show that he is a member of a suspect class or that there has been a violation of a fundamental right. Plyler v. Doe, 457 U.S. 202, 217, 102 S.Ct. 2382, 2395, 72 L.Ed.2d 786 (1982). There, the rule prohibiting bifurcation of the possession of a gun element from the felon status element will be upheld upon a showing of \"some fair relationship to a legitimate public purpose.\" Id. at 216, 102 S.Ct. at 2394. There are various legitimate reasons for not allowing bifurcation of the offense of being in possession of a firearm into separate proceedings. First of all, the \"government would be precluded from proving an essential element of the charged offense, and the district court would breach its duty to instruct the jury on" }, { "docid": "6995282", "title": "", "text": "5841, 5861(d), and 5871. Defendant has prior convictions for, among other things, kidnapping and reckless homicide. Defendant filed a pretrial motion to strike the specific descriptions of his convictions for kidnapping and reckless homicide from the indictments for the alleged violations of § 922(g)(1). Defendant also filed a motion in limine, in which he argued that it was unnecessary and prejudicial to inform the jury of the particulars of his prior criminal history beyond Defendant’s proffered “stipulation that he has been previously convicted of a crime punishable by imprisonment for a term exceeding one year.” J.A. at 18. The district court denied Defendant’s motions. At trial, the United States introduced the testimony of Bureau of Alcohol, Tobacco and Firearms Agent Valerie Park. Agent Park testified that, during her investigation, she had retrieved certified records from the Kentucky state courts of judgments of conviction against Defendant for reckless homicide and kidnapping. The government introduced these records in redacted form. Defendant was convicted on all three counts and received a prison term totaling 150 months. On appeal, Defendant argued that the district court improperly rejected his offer to stipulate to his prior felon status. Following circuit precedent, we held that the government was entitled to prove the felonies in a § 922(g)(1) prosecution and was not required to accept a defendant’s stipulation, and we affirmed the conviction and sentence. United States v. Daniel, 103 F.3d 131 (6th Cir.1996)(unpublished decision); see, e.g., United States v. Hudson, 53 F.3d 744, 747 (6th Cir.1995)(“In the Sixth Circuit, the government is entitled to prove the felonies it has alleged.”). On June 16, 1997, the Supreme Court vacated our judgment and remanded for further consideration in light of the Court’s intervening decision in Old Chief. Daniel v. United States, — U.S.-, 117 S.Ct. 2450, 138 L.Ed.2d 209 (1997). II. On remand, we consider two issues: (1) whether Defendant’s case falls within the Supreme Court’s holding in Old Chief; and, if so, (2) whether the district court’s failure to accept Defendant’s stipulation to his prior felon status constituted harmless error. The United States contends that Defendant’s case does" }, { "docid": "23208394", "title": "", "text": "Jones’s picture from a photographic array, and four made courtroom identifications of him as the bank robber. Finally, bank surveillance photographs showed that the robber wore clothes matching the eyewitness descriptions and those seized from Jones following his arrest. Although the gun used in the robbery was never recovered, three of the bank employees saw it at various times, and each described it as silver with a white handle. At the close of the government’s case, the defendant moved for a judgment of acquittal under Fed.R.Crim.P. 29, claiming that the government had failed to prove the interstate commerce element of count four, the felon in possession of a firearm charge. In response, the government pointed out that FBI Special Agent Thomas Moore had testified that no handguns “are manufactured” in New York state. Citing this testimony, the district court denied defendant’s motion. The trial judge’s charge cautioned the jurors not to consider Jones’s felony conviction for any purpose other than to determine whether the government had met its burden of proof on the felon in possession count. In the course of giving these limiting instructions, however, the judge repeated seven times that Jones had a prior felony conviction. The jury convicted Jones on counts 1-4. The district court then sentenced Jones as a career offender, imposing a 300-month sentence on the bank robbery, armed bank robbery and felon in possession of a gun counts, to be followed by a mandatory consecutive 60-month term on count three (use of a firearm during a crime of violence). DISCUSSION I. Legal Sufficiency Jones contends that the evidence was not sufficient to sustain the convictions on count three (using a firearm during a crime of violence, in violation of § 924(c)(1)) and count four (possessing a firearm as a convicted felon, in violation of § 922(g)(1)). Specifically, he argues that the government failed to prove, beyond a reasonable doubt, that (1) the weapon used in the bank robbery was a “firearm” within the meaning of 18 U.S.C. § 921(a)(3) (1988), and (2) the firearm was “in or affecting commerce.” § 922(g)(1). The standard applicable" }, { "docid": "17296995", "title": "", "text": "that the Government improperly referred to the names of his prior convictions — possession of cocaine with intent to sell and possession of a handgun by a felon — during its closing argument. The Government referred to the names a total of four times — twice during its initial closing argument and twice during its rebuttal. Three of the instances are clearly in reference to the proper argument that Defendant is a convicted felon, an element of the crime of being a felon in possession of a firearm. Defendant cites no authority precluding the Government from referring to properly admitted evidence that is essential to the Government’s case-in-chief during closing arguments. Although statements that are permissible in isolation may, in aggregate, demonstrate an improper purpose, we find no evidence of an improper purpose in this case. Nonetheless, the fourth instance, in which the Government appeals to the jury’s “common sense,” comes close to the line. Based on the context, it is unclear whether the Government was suggesting that the jury consider the prior convictions as propensity evidence, evidence of an intent to distribute, or evidence that Defendant was a convicted felon. The reference is sufficiently ambiguous that it is unlikely the jury would view this as an invitation to consider the evidence for an improper purpose. Moreover, the district court gave a limiting instruction explicitly informing the jury that they may consider the prior convictions only as evidence relating to the element of Defendant having been previously convicted of a felony. The general rule is that a jury is presumed to follow the district court’s instructions, see United States v. Moreno, 933 F.2d 362, 368 (6th Cir. 1991), and we see no reason why the jury in this case would have been unable to heed these instructions. Accordingly, we find no plain error. E. Sentencing We also consider whether the consecutive component of Defendant’s 190-month sentence was proper. Defendant was sen- fenced to 130 months for possession with intent to distribute cocaine base, 120 months for being a felon in possession of a firearm (to run concurrently with the 130" }, { "docid": "4421922", "title": "", "text": "of the prior felony element from the jury’s consideration “prevents the government from having its case decided by the jury, and changes the very nature of the charged crime.” Id. We, therefore, hold that, in a felon-in possession case such as this, the district court must instruct the jury that the government must prove beyond a reasonable doubt that at the time the defendant possessed the firearm he had a qualifying previous felony conviction, that is a prior conviction for an offense punishable by a term of imprisonment exceeding one year. Accordingly, Milton’s argument that the district court committed reversible error in denying his motion in limine must be rejected. IV Finally, Milton contends that the district court abused its discretion in denying his request for a missing witness instruction. We have reviewed this assignment of error and find it to be without merit inasmuch as the “missing witness,” Jothan Schnella, was equally available to both sides. See United States v. Brooks, 928 F.2d 1403, 1412 (4th Cir.), cert. denied, 502 U.S. 845, 112 S.Ct. 140, 116 L.Ed.2d 106 (1991). Accordingly, for the reasons stated, Milton’s conviction for possession of a firearm by a convicted felon, see 18 U.S.C. § 922(g)(1), is affirmed. AFFIRMED. .Section 922(g)(1) makes it \"unlawful for any person ... who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” The term \"crime punishable by imprisonment for a term exceeding one year” is commonly referred to as a \"felony.” . It was later determined that the vehicle belonged to Milton. . Although initially charged under Maryland state law, Milton was never tried on the state charges. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . At trial, the government presented evidence, by way of stipulation, that: (1) the Smith & Wesson 9 mm. semi-automatic" }, { "docid": "744885", "title": "", "text": "985 F.2d 65, 70 (2d Cir.1993). In light of these observations, we cannot say that the District Court erred by declining to adopt an approach that would have decreased sentencing disparities between Johnson and any similarly-situated state defendant but increased sentencing disparities between Johnson and any similarly-situated federal defendant prosecuted in different states. We join the Fourth, Seventh and Tenth Circuits in reaching this conclusion. See United States v. Clark, 434 F.3d 684, 687-88 (4th Cir.2006); United States v. Wurzinger, 467 F.3d 649, 653-54 (7th Cir.2006); United States v. Branson, 463 F.3d 1110, 1112-13 (10th Cir.2006). We now turn to Johnson’s remaining claims. Johnson’s first claim — that the District Court erred by declining to bifurcate his trial — is without merit. See United States v. Amante, 418 F.3d 220, 224 (2d Cir.2005) (“Where the government agrees to stipulate [to] the fact of the prior felony without going into the underlying facts, there can be no unfair prejudice justifying bifurcation.”); United States v. Belk, 346 F.3d 305, 310 (2d Cir.2003) (observing that a district court’s exercise of its discretion in refusing to bifurcate the elements of a § 922(g)(1) charge is not reversible error). The same is true of his argument that it was error for the District Court to give a jury instruction that included an observation about the fact of Johnson’s prior felony conviction. In Belk, we noted with approval our prior holding that “the defendant in a § 922(g)(1) trial” had been shielded from undue prejudice where the trial court gave a “proper curative instruction explaining to the jury that it may only use proof of the prior conviction to satisfy the prior-conviction element of the crime” and “the ... evidence of [the defendant’s] prior conviction [was] narrowly tailored to the fact of the conviction itself.” 346 F.3d at 311 (discussing United States v. Gilliam, 994 F.2d 97, 100 (2d Cir.1993)). The jury that tried Johnson received a curative instruction similar in content to the instruction given in Gilliam; and, although the stipulation presented to the jury did describe the nature of Johnson’s prior offense, this description" }, { "docid": "1312554", "title": "", "text": "to proving the crime, it is by definition not prejudicial.” Id. (emphasis added). Because a district court’s admission into evidence of defendant’s prior conviction in a § 922(g)(1) case — when accompanied by a proper curative instruction and limited to the fact of the conviction itself — is by definition not prejudicial, a district court cannot err by failing to take additional measures, such as bifurcation, intended to mitigate any asserted prejudice. We thus find no error. The cases cited by defendant in support of his position that bifurcation was required are unavailing. For instance, in United States v. Orena, 811 F.Supp. 819 (E.D.N.Y.1992), Judge Weinstein, over the objection of the Government, withheld from the jury any evidence of the defendant’s prior conviction where the defendant was willing to stipulate to the fact of the conviction. We expressly disavowed this approach in Gilliam, and stated that Fed.R.Evid. 404(b) “does not authorize a district court, either by its own terms or by analogy, to take the issue of the defendant’s prior conviction from the jury.” Gilliam, 994 F.2d at 102. Nor does our opinion in United States v. Jones, 16 F.3d 487 (2d Cir.1994), support defendant’s claim. In that case, we held that a felon-in-possession charge in its entirety had to be bifurcated from other charges relating to a bank robbery in order to accord the defendant a fair trial. Id. at 492-93. However, we did not require or condone bifurcation of a single felon-in-possession charge under 18 U.S.C. § 922(g)(1). Our holding here that a district court’s refusal to bifurcate cannot constitute error is consistent with the conclusions of the Courts of Appeals for the Third, Tenth, Eleventh, and District of Columbia Circuits, each of which have held that failure to bifurcate the elements of a § 922(g)(1) charge is not reversible error. See United States v. Mangum, 100 F.3d 164, 170-71 (D.C.Cir.1996); United States v. Dean, 76 F.3d 329, 332 (10th Cir.1996); United States v. Jacobs, 44 F.3d 1219, 1221-23 (3d Cir.1995); United States v. Birdsong, 982 F.2d 481, 482 (11th Cir.1993). It is also consistent with the law" }, { "docid": "22897069", "title": "", "text": "by Jackson prior to trial. He requested that the district court instruct the jury that \"the parties have stipulated that the defendant was convicted of a crime in state court and that this crime is punishable by imprisonment for a term exceeding one year [and] that his felony conviction occurred prior to the time that the defendant is alleged to have possessed the weapon charged in the indictment.” (Def. Requested Jury Inst. No. 31.) . As noted in n. 2, supra, Jackson made Rule 29 Motions for Acquittal on both counts prior to jury’s deliberations. (J.A. at 114, 126.) Jackson did not, however, specify the grounds upon which his motions were based until his third Motion for Judgment of Acquittal, made after the jury returned its guilty verdict. . In light of the United States Supreme Court’s recent decision in Old Chief v. United States,U.S.-, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), we question the validity of our holding in United States v. Muse, 83 F.3d 672 (4th Cir.), cert. denied, - U.S.-, 117 S.Ct. 261, 136 L.Ed.2d 186 (1996), that a stipulation does not constitute a waiver of the government’s burden of proof in the limited circumstances of a defendant's felon status for purposes of a 18 U.S.C.A. § 922(g)(1) charge. In Old Chief, the Supreme Court held that if a defendant offers to stipulate to his status as a felon at the time of his alleged possession of a firearm in violation of 18 U.S.C.A. § 922(g)(1), the Government is barred from offering any other evidence to prove the prior conviction. See Old Chief, at-, 117 S.Ct. at 655. The Court, rejecting the Government's contention that it \"is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the government chooses to present it,” id. at-, 117 S.Ct. at 653, concluded that \"[t]he most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes" }, { "docid": "12805447", "title": "", "text": "all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the Defendant not guilty. This instruction accurately describes the government’s burden in a § 922(g)(1) prosecution, see United States v. Wallace, 280 F.3d 781, 784 (7th Cir.2002), and thus the question is simply whether Instruction 17 is undermined by Instruction 11. Drake suggests this happened because — in closing argument — the prosecution tried to link his prior convictions to his possession of the gun: You know, the fact of the matter is, is that when you look at all the evidence in its totality, take pieces here and pieces there, put it together, look at the circumstantial evidence, it’s clear. It’s no question the defendant, twice convicted felon, look at his credibility. Consider that as well, and I think you’ll find, as the government has proven to you beyond a reasonable doubt, is that the defendant is guilty as charged in the Indictment. But use of the plural “elements” in Instruction 11 did not direct the jury to consider Drake’s prior felonies as evidence that he possessed the gun. And the government’s closing seems only to suggest that the testimony of a “twice convicted felon” is not credible, which is a permissible inference to draw from evidence of prior convictions, see United States v. Montgomery, 390 F.3d 1013, 1015-16 (7th Cir.2004); United States v. Hernandez, 106 F.3d 737, 740 (7th Cir.1997). If Drake really means to make an argument under Federal Rule of Evidence 404(b), the concern of that rule has nothing to do with the elements of the offense; the concern is that the jury will convict on the assumption that someone who committed a crime before probably is guilty now. But Instruction 11 raises no such concern; it tells the jury to limit consideration of the prior-conviction evidence to the elements of the offense, so there is no danger of misuse. Regardless, the submission of an incorrect instruction is harmless if the jury, properly instructed, would have returned the same verdict. See United States v. Pittman, 418" }, { "docid": "16279758", "title": "", "text": "(2d Cir.1993), and United States v. Belk, 346 F.3d 305 (2d Cir.2003) — the latter decided one week before the District Court’s October 16, 2003 ruling — we hold that a district court has no discretion, in a prosecution under § 922(g)(1), to allow a defendant to stipulate to a prior conviction and thereby entirely withhold that element of the offense from the jury’s consideration. Although a defendant may, by stipulating that he has a prior felony conviction, prevent the jury from hearing about the nature or underlying facts of the conviction, he may not prevent the jury from learning the fact that he has a prior felony conviction — a “crucial element” of the offense. See Gilliam, 994 F.2d at 103. In Gilliam, we held that a district court did not err by refusing to accept a defendant’s proposal to concede the prior conviction element under § 922(g)(1) and thereby keep the fact of his prior conviction from the jury. 994 F.2d at 98. We stated that, “[wjhere the prior conviction is essential to proving the crime, it is by definition not prejudicial,” and that “where the district court issues a proper curative instruction, we must presume that a conscientious jury will only use the proof of the prior conviction to satisfy the element of the crime.” Id. at 100. Furthermore, we rejected the defendant’s argument that his proposed stipulation would, at least, cause no harm: [Defendant’s] proposal violates the very foundation of the jury system. It removes from the jury’s consideration an element of the crime, leaving the jury in a position only to make, findings of fact without knowing the true import of those findings. Again, [defendant] is not charged with mere possession of a weapon, but with possession by a convicted felon. The jury speaks for the community in condemning such behavior, and it cannot condemn such behavior if it is unaware of the nature of the crime charged. Id. at 100-01; see also id. at 101 (“Without full knowledge of the nature of the crime, the jury cannot speak for the people or exert their" }, { "docid": "16279759", "title": "", "text": "proving the crime, it is by definition not prejudicial,” and that “where the district court issues a proper curative instruction, we must presume that a conscientious jury will only use the proof of the prior conviction to satisfy the element of the crime.” Id. at 100. Furthermore, we rejected the defendant’s argument that his proposed stipulation would, at least, cause no harm: [Defendant’s] proposal violates the very foundation of the jury system. It removes from the jury’s consideration an element of the crime, leaving the jury in a position only to make, findings of fact without knowing the true import of those findings. Again, [defendant] is not charged with mere possession of a weapon, but with possession by a convicted felon. The jury speaks for the community in condemning such behavior, and it cannot condemn such behavior if it is unaware of the nature of the crime charged. Id. at 100-01; see also id. at 101 (“Without full knowledge of the nature of the crime, the jury cannot speak for the people or exert their authority.”). In the instant case, the District Court interpreted Gilliam as leaving to a trial judge’s discretion the decision of whether to accept a defendant’s stipulation to the prior-conviction element of § 922(g)(1). Yet such an interpretation was foreclosed by our reasoning in Gilliam, as was recognized in our recent decision in Belk, which held that a district court does not err in refusing to “bifurcate” a jury trial to provide for separate consideration of the elements of a § 922(g)(1) charge. Under the defendant’s proposal in Belk, the jury would not be told about the fact of the prior conviction at the start of trial, but would instead be informed that “there is an additional critical element that will be submitted ... for [your] consideration after [you] deeide[ ] the issue of possession.” 346 F.3d at 308. If the jury determined that the Government had proven the possession element, the district court would then inform the jury that it must also find that the defendant had been convicted of a prior felony. Id. We" }, { "docid": "11563413", "title": "", "text": "district court’s denial of his request that special interrogatory verdicts be submitted to the jury for each firearm listed in the indictment. He claims that these special interrogatory verdicts were needed because each firearm charged is a separate element of a separate crime. Thus, Buchmeier argues that the jury should have been required to find him guilty beyond a reasonable doubt for each firearm. Additionally, Buchmeier asserts that because the special interrogatory verdicts were not submitted to the jury, he is unable to determine which firearm he was convicted of possessing and receiving. This result, he contends, is so manifestly unfair that it violates the Constitution’s notions of due process and fundamental fairness. We do not agree. The Supreme Court has explained that “a jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proven each element” of a crime. Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985(1999). Given our discussion regarding the appropriate unit of prosecution for § 922(g)(1) and § 922(j), we conclude that the district court correctly instructed the jury that it only needed to find that Buchmeier had possessed or received, depending on the charge, one of the firearms listed in each count in order to satisfy the elements of those violations. As we have explained, the focus of these provisions is upon the individual defendant and the actions taken by the defendant to acquire firearms. A convicted felon is to be prosecuted under § 922(g)(1) not for the number of firearms he possesses, but instead for each transaction or acquisition by which that defendant has attempted to arm himself. See, e.g., United States v. Oliver, 683 F.2d 224, 232-33 (7th Cir.1982); see also United States v. Jester, 139 F.3d 1168,1171 (7th Cir.1998) (“Congress enacted § 922(g)(1) in order to keep firearms out of the hands of those persons whose prior conduct indicated a heightened proclivity for using firearms to threaten com munity peace and the ‘continued and effective operation of the Government of the United States.’ ”) (citation omitted). Likewise, a defendant receiving" }, { "docid": "22127543", "title": "", "text": "abuse of discretion. United States v. Brinklow, 560 F.2d 1003, 1006 (10th Cir.1977), cert. denied, 434 U.S. 1047, 98 S.Ct. 893, 54 L.Ed.2d 798 (1978). Lipp was charged in Counts 3,10 and 15 of the indictment with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). This statute makes it “unlawful for any person ... who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ... possess in or affecting commerce, any firearm or ammunition.” Id. At trial, the government offered the journal entries to prove an essential element of the crime under section 922(g)(1)—i.e., that Lipp was a convicted felon. Lipp objected to the admission of the journal entries and offered to stipulate to the fact of his prior convictions. When the government refused to accept the stipulation, the district court overruled Lipp’s objection and allowed the government to introduce the evidence. Lipp contends this was an abuse of discretion. The government argues that this issue is controlled by our prior decision in Brinklow. In Brinklow, we held that the trial court did not abuse its discretion by refusing a defen dant’s request to strike from the indictment and keep from the jury all references to his previous felony convictions. 560 F.2d at 1006. Recognizing that a prior felony conviction is an essential element of the offense, we held that “the government is not required to accept such [a stipulation] and may insist upon proving all essential elements of its case.” Id. Although we remain faithful to our opinion in Brinklow, we do not believe that it is determinative of the case before us. Lipp’s request differs from the situation in Brinklow. In Brinklow, the defendant “proposed that [the] jury instructions specify only those essential elements of the crime other than that of a previous felony conviction and that the jury be instructed that there were additional necessary elements with which they did not need to be concerned.” 560 F.2d at 1006. By contrast, Lipp’s stipulation did not seek to keep from" }, { "docid": "19462485", "title": "", "text": "to challenge that matter on appeal.\" ROA, Vol 4 at 48. The district court denied the motion, stating it lacked merit under Prieto , 565 Fed.Appx. at 763. The court said it would follow the Tenth Circuit's pattern jury instruction, which required the jury to find Mr. Silva had been previously convicted of a felony. At the first trial, the judge, just before presenting the jury instructions, read the following stipulation to the jury: The first stipulation is entitled Stipulation Regarding Prior Felony Convictions. It reads as follows: The parties, by and through their undersigned counsel stipulate and agree as follows: 1. [T]he defendant, Samuel Silva, prior to July 1, 2014, had been convicted of a crime punishable by imprisonment for a term exceeding one year. That is, a felony offense, as charged in the indictment in this case. 2. [T]his stipulated fact is proved beyond a reasonable doubt and may be read to the jury at trial. This stipulation also relieves the government of its burden of proof with regard to the defendant's status as a felon at the time relevant to the charge contained in the indictment. ROA, Vol. 5 at 272. The district court instructed the jury as follows: The defendant is on trial before you upon an indictment brought by the grand jury charging as follows: On or about July 1, 2014, in Bernalillo County, in the District of New Mexico, the defendant, Samuel Silva, having been convicted of a felony crime punishable by imprisonment for a term exceeding one year, knowingly possessed, in and affecting commerce, a firearm and ammunition: 1. a Smith & Wesson model 411 .40 caliber semiautomatic pistol; 2. approximately one Remington brand caliber cartridge; and 3. approximately eight CBC brand .40 caliber cartridges. In violation of 18 United States Code Section[s] 922(g)(1) and 942(a)(2). Id. at 276-77 . The court further instructed: To find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt: ... Second, the defendant was convicted of a felony, that is, a crime punishable" }, { "docid": "16279763", "title": "", "text": "the element of a prior felony conviction entirely from the jury’s consideration by accepting a defendant’s stipulation to that element. Finally, defendant’s counsel urges for the first time at oral argument that this Court should, as an alternative to affirming, remand the case to the District Court with instructions to hold a bifurcated trial Defendant’s argument seems to be that bifurcation is appropriate here because, if he were tried on the issue of possession, the credibility of his trial testimony would be the central issue, and the jury would give undue weight to his prior felony conviction in assessing his credibility. We decline to order bifurcation simply because the defendant’s credibility would be an issue at trial. This is not the “extraordinarily unusual case” in which, under Belk, bifurcation “could possibly be appropriate.” 346 F.3d at 311. The order of the District Court is hereby Vacated and the cause is Remanded for further proceedings consistent with this opinion. . 18 U.S.C. § 922(g)(1) makes it a crime for \"any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ... possess in or affecting commerce, any firearm or ammunition.” The two elements of the offense are thus (1) possession of a firearm in or affecting commerce (2) by a felon. . 18 U.S.C. § 3731 provides for an immediate appeal by the United States \"from a decision or order of a district court suppressing or excluding evidence” in a criminal case. . As we stated in Gilliam, the fact that there was a prior conviction is a \"crucial element” under § 922(g)(1), but because the underlying facts of the conviction are prejudicial and irrelevant, they should not be conveyed to the jury where the defendant stipulates to the fact of conviction. 994 F.2d at 103. We have also recognized the propriety of \"a curative instruction explaining to the jury that it may only use proof of the prior conviction to satisfy the prior-conviction element of the crime.” Belk, 346 F.3dat311. . The District Court stated during the October" } ]

[ { "docid": "10143526", "title": "", "text": "what occurred during almost ten years.” The court expressly found “Mr. Pahlavi’s evidence more credible” and found “misconduct,” specifically “a pattern of conduct that occurred practically from the outset of the relationship between Mr. Pahlavi and Mr. Ansari.” Pahlavi and Ansari engaged in vastly more “actual litigation” of the critical issues in this case than did the landlord and tenant in Trcmsdulles. The state court’s findings on these issues were as essential to its judgment here as they were in Trcmsdulles. Thus, the state court judgment in this case clearly meets the Trcmsdulles requirements for collateral estoppel. C. Before concluding our discussion of collateral estoppel, we note that our conclusion finds support in decisions from two of our sister circuits and is in no way contrary to our holding in M & M Transmissions, Inc. v. Raynor (In re Raynor), 922 F.2d 1146 (4th Cir.1991). Recently, the Fifth, Eleventh, and Ninth Circuits have held that when a party has appeared and litigated a matter, a default judgment subsequently entered for discovery violations can act as collateral estoppel in a later case. See Gober v. Terra + Corporation (In re Gober), 100 F.3d 1195, 1205-06 (5th Cir.1996) (fact that state court default judgment was entered “only after Gober had repeatedly impeded the course of the proceedings by refusing to comply with discovery and by defying court orders” bolstered court’s conclusion that the bankruptcy court “properly afforded collateral estoppel effect” to the state default judgment); Bush v. Balfour Beatty Bahamas, Ltd., 62 F.3d 1319, 1325 (11th Cir.1995) (“Where a party has substantially participated in an action in which he had a full and fair opportunity to defend on the merits, but subsequently chooses not to do so, and even attempts to frustrate the [proceedings] a district court [may] apply the doctrine of collateral estoppel to prevent further litigation of the issues resolved by the default judgment in the prior litigation.”); FDIC v. Daily (In re Daily), 47 F.3d 365, 368 (9th Cir.1995) (“A party who deliberately precludes resolution of factual issues through normal adjudicative procedures may be bound, in subsequent, related proceedings" } ]

[ { "docid": "12621692", "title": "", "text": "of the proceedings by refusing to comply with discovery and by defying court orders. The Restatement contemplates that “even if [an issue] was not litigated, the party’s reasons for not litigating in the prior action may be such that preclusion would be appropriate.” Restatement (Second) of Judgments § 27 cmt. e (1982). Other circuits, applying federal rules of issue preclusion in dischargeability proceedings, have applied this principle to bar relitigation of issues determined by default as a result of sanctions for discovery abuses and dilatory tactics. See FDIC v. Daily (In re Daily), 47 F.3d 365, 368 (9th Cir.1995) (applying collateral estoppel principles where “denying pre-clusive effect to the [prior] judgment ... would permit [debtor] to delay substantially and perhaps ultimately avoid payment of the debt by deliberate abuse of the judicial process.”); Bush v. Balfour Beatty Bahamas, Ltd. (In re Bush), 62 F.3d 1319, 1324 (11th Cir.1995) (holding that “where a party has substantially participated in an action in which he had a full and fair opportunity to defend on the merits, but subsequently chooses not to do so, and even attempts to frustrate the effort to bring the action to judgment,” collateral estoppel is proper). We similarly find that the circumstances surrounding the state court proceedings in this case bolster our conclusion that the bankruptcy and district courts properly afforded collateral estoppel effect to the judgment against Gober. Ill Gober contends that the bankruptcy and district courts erred in abstaining from hearing his claims for offsets and credits based on unpaid salary, business expenses, and the value of Gober’s ownership interest in Terra. Gober previously asserted these claims as counterclaims in the underlying state court action, but the state court dismissed them for failure to post security for costs. The bankruptcy court expressly abstained from considering the asserted offsets without explanation, and the district court affirmed the bankruptcy court’s entire judgment without reference to the bankruptcy court’s abstention decision. Under the “permissive abstention” doctrine, 28 U.S.C. § 1334(c)(1), courts have broad discretion to abstain from hearing state law claims whenever appropriate “in the interest of justice, or in" }, { "docid": "12647553", "title": "", "text": "case, had a partial default entered against them for the plaintiffs claims that they did not contest, or had a default judgment entered against them after the court entertained only the plaintiffs evidence. See International Surplus Lines Ins. Co. v. University of Wyo. Research Corp., 850 F.Supp. 1509 (D.Wyo.1994), aff'd, 52 F.3d 901 (10th Cir.1995); Alvarado v. Kallmeyer (In re Kallmeyer), 148 B.R. 271 (Bankr.D.Kan.1992); National Union Fire Ins. Co. v. Boyovich (In re Boyovich), 126 B.R. 348 (Bankr.W.D.Wash.1991); Pacific Energy & Minerals, Ltd. v. Austin (In re Austin), 93 B.R. 723 (Bankr.D.Colo.1988). Here, the District Court granted McCart a default judgment against the Debtor not because he failed to appear at the show cause hearing, but as a sanction for substantial abuse of the discovery process. Several Circuit Courts have held that a default judgment entered against a defendant for abuse of the discovery process has preclusive effect in subsequent litigation. Wolstein v. Docteroff (In re Docteroff), 133 F.3d 210 (3d Cir.1997); Bush v. Balfour Beatty Bahamas, Ltd. (In re Bush), 62 F.3d 1319 (11th Cir.1995); FDIC v. Daily (In re Daily), 47 F.3d 365 (9th Cir.1995) (applying federal principles of collateral estoppel). See also Pahlavi v. Ansari (In re Ansari), 113 F.3d 17 (4th Cir.1997), cert. denied, — U.S. —, 118 S.Ct. 298, 139 L.Ed.2d 230 (1997); Gober v. Terra + Corp. (In re Gober), 100 F.3d 1195 (5th Cir.1996) (applying state court principles of collateral estoppel). These Courts held that the “actually litigated” element of collateral estoppel was present because the defendants had a full and fair opportunity to actually litigate the issues in the prior action. Here, the Debtor had every opportunity to litigate the issues and many warnings that the District Court would enter a default judgment against him if he did not comply with court rules. Nevertheless, the Debtor cites numerous cases in support of his position that he did not have an opportunity to actually litigate any of the issues in the prior proceeding. He argues that Marlee Electronics Corp. v. Antonakis (In re Antonakis), 207 B.R. 201 (Bankr.E.D.Cal.1997) supports his position. However," }, { "docid": "12647549", "title": "", "text": "726, 732, 66 S.Ct. 853, 90 L.Ed. 970 (1946); Grogan v. Garner, 498 U.S. 279, 284, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)). In order for collateral estoppel to apply, the following elements must be present: “(1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party or in privity with a party to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.” Frandsen v. Westinghouse Corp., 46 F.3d 975, 978 (10th Cir.1995)(quotation omitted). A court’s application of collateral estoppel is reviewed de novo. United States v. Rogers, 960 F.2d 1501, 1507 (10th Cir.) (citing Hubbert v. City of Moore, 923 F.2d 769, 772 (10th Cir.1991)), cert. denied, 506 U.S. 1035, 113 S.Ct. 817, 121 L.Ed.2d 689 (1992). All of the elements of collateral estoppel are present. First, the District Court and the bankruptcy court litigation involved the same issue-fraud. Secondly, those issues were determined by a valid and final judgment. Thirdly, the Debtor was a party to the prior litigation. Finally, the Debtor had a full and fair opportunity to litigate the issue of fraud. Wolstein v. Docteroff (In re Docteroff), 133 F.3d 210 (3d Cir.1997); Bush v. Balfour Beatty Bahamas, Ltd. (In re Bush), 62 F.3d 1319 (11th Cir.1995); FDIC v. Daily (In re Daily), 47 F.3d 365 (9th Cir.1995). The Debtor contends that the bankruptcy court erred when it granted preclusive effect to the District Court’s findings in the default judgment since it was entered by default. The Debtor’s argument implies that he did not have notice of the show cause hearing that resulted in the entry of default against him. On the contrary, the record reflects that the Debtor received notice of the hearing and filed a letter in response. That letter did not comply with court rules in spite of the District Court’s repeated warnings that a failure to" }, { "docid": "3087534", "title": "", "text": "his position that the issue of his allegedly fraudulent conduct had not been actually litigated in the previous proceeding. However, the debtor-defendant’s argument focuses on the claim that he was not able to present his arguments to the court and have them considered. As far as it goes, the debtor-defendant is correct in his argument. For, the debtor-defendant does not address the claim of the plaintiff that the debtor-defendant’s conduct in the previous proceeding warranted a default judgment such that collateral estoppel would apply. This court recognizes that at least four circuits have formally adopted the exception to the general rule that serious obstructive conduct resulting in a default judgment may result in the application of collateral estoppel. See FDIC v. Daily (In re Daily), 47 F.3d 365, 368-69 (9th Cir.1995); Bush v. Balfour Beatty Bahamas Limited (In re Bush), 62 F.3d 1319, 1324-25 (11th Cir.1995); Gober v. Terra + Corporation, 100 F.3d 1195, 1205-6 (5th Cir.1996); Pahlavi v. Ansari, 113 F.3d 17, 19-20 (4th Cir.1997). What is essential to the determination of this matter is that the debtor-defendant, in the previous proceeding, had ample opportunity to present and argue his case. However, as recognized by the district court, the debtor-defendant engaged in serious obstructive behavior, including absconding with an original transcript of the debtor-defendant’s deposition, which disrupted the judicial proceedings, despite continuous warnings from the judge. The fact that the debtor-defendant did not present all of the arguments which he might have wanted to be considered by the trial court is completely the fault of the debtor-defendant. This court cannot, and will not, reward the debtor-defendant for his misconduct by providing him with a second opportunity to litigate his claim. It is illuminating to this court that the debtor-defendant does not dispute the fact that he engaged in this obstructive behavior. Thus, as there exists no genuine issue of material fact concerning the debtor-defendant’s behavior and the subsequent granting of the default judgment by the district court, this court concludes that the second element of the test for the application of collateral estoppel has been met. Therefore, this court" }, { "docid": "3087530", "title": "", "text": "not worth disputing at that time. In such a situation, collateral estoppel will not apply in future proceedings. See United States v. Gottheiner (In re Gottheiner), 703 F.2d 1136, 1140 (9th Cir.1983) (citing Spilman v. Harley, 656 F.2d 224 (6th Cir.1981); Commonwealth of Massachusetts v. Hale, 618 F.2d 143 (1st Cir.1980); In re McMillan, 579 F.2d 289 (3rd Cir.1978)). But there are recently decided exceptions to the this general rule. For example, if the losing party has significantly participated in the previous action, such as by engaging in discovery over a period of sixteen months, then collateral estoppel will apply. Id. Further, if the losing party in the previous action has actively participated in the action over a period of time and has engaged in serious misconduct, such as refusing to comply with discovery and obstructing the actual judicial process of litigation, then collateral estoppel will apply. See FDIC v. Daily (In re Daily), 47 F.3d 365, 368-69 (9th Cir.1995); Bush v. Balfour Beatty Bahamas Limited (In re Bush), 62 F.3d 1319, 1324-25 (11th Cir.1995); Gober v. Terra + Corporation, 100 F.3d 1195, 1205-06 (5th Cir.1996); Pahlavi v. Ansari, 113 F.3d 17, 19-20 (4th Cir.1997). BANKRUPTCY CODE 11 U.S.C. § 523(a)(2)(B) provides an exception to discharge for debts resulting from materially false statements in writing. 11 U.S.C. § 523(a)(2)(A) provides an exception to discharge for debts as a result of false representations. Both of these statutes encompass fraud. ANALYSIS First, the debtor-defendant, in his response to the motion for summary judgment raises the issue that the four documents relied upon by the plaintiff in her motion have not been authenticated in accordance with Fed.R.Evid. 901 & 902. The debtor-defendant cites numerous authorities that support his position. Debtor-defendant’s position is well taken. However, in her reply, the plaintiff attempts to correct the error by providing an Exemplification Certificate from the United States District Court in the Western District of Missouri as to the legitimacy of the order for default judgment which was relied upon by the plaintiff. Although this Exemplification Certificate only applies to the order for default judgment, the order" }, { "docid": "16625635", "title": "", "text": "of the inconvenience of the forum selected by the plaintiffs, the expense associated with defending the lawsuit, or some other reason. See In re Bush 62 F.3d 1319, 1324 (11th Cir.1995); 18 Charles Alan Wright, Arthur R. Miller and Edward H. Cooper, Federal Practice and Procedure § 4442, at 375 & n. 3 (1981). To the contrary, for several months, Docteroff participated extensively in the lawsuit. He filed an answer, noticed Wolstein’s deposition, engaged several lawyers, including local counsel, filed papers with the court, and corresponded with opposing counsel. See 62 F.3d at 1324 (noting defendant’s participation in lawsuit which ultimately ended with default judgment entered against him as sanction). Apparently, Docteroff realized the meritlessness of his position and decided to frustrate orderly litigation by willfully obstructing discovery. We do not hesitate in holding that a party such as Docteroff, who deliberately prevents resolution of a lawsuit, should be deemed to have actually litigated an issue for purposes of collateral estoppel application. See In re Daily, 47 F.3d 365, 368 (9th Cir.1995). In doing so, we join with Ninth and Eleventh Circuit courts of appeals in holding that, under these circumstances, the actual litigation requirement is met. See Bush, 62 F.3d at 1324; In re Daily, 47 F.3d at 368-69. To hold otherwise would encourage behavior similar to Docteroffs and give litigants who abuse the processes and dignity of the court an undeserved second bite at the apple. We reject such a result. Docteroff next contends that the liability judgment in the Washington case does not satisfy the finality requirement because it is not appealable. This argument is unpersuasive for two reasons. First, applica tion of collateral estoppel does not require the type of finality urged by Docteroff. In re Brown, 951 F.2d 564, 569 (3d Cir.1991); see also Hawksbill Sea Turtle v. Federal Emergency Mgmt. Agency, 126 F.3d 461, 474 n. 11 (3d Cir.1997); 18 Charles Alan Wright, Arthur R. Miller and Edward H. Cooper, Federal practice and Procedure § 4434. Rather, “for purposes of issue preclusion ... ‘final judgment’ includes any prior adjudication of an issue in another" }, { "docid": "12647552", "title": "", "text": "chose, however, to “assiduously pursue a policy of obfuscation” to frustrate the judicial process. (See Appellant’s App. at 9.) He had every opportunity to litigate the fraud claims against him. This is not a default judgment in the sense of the cases he cites. Allowing him to relitigate the District Court judgment would reward his misbehavior. The bankruptcy court properly gave preclusive effect to the District Court judgment and then simply applied § 523(a)(2)(A) and (B) in granting summary judgment. The Debtor cites Tenth Circuit cases holding that a default judgment does not have preclusive effect. (See Appellant’s Opening Br. at 9.) In general, none of those eases fit the facts here. In addition to applying state collateral estoppel principles to state court default judgments, the majority of the cases he cites involved a defendant who failed to answer the plaintiffs complaint or appear in court. The remaining cases involve defendants who consented to a default judgment because they could not afford counsel, had default granted against them for evading three opportunities to try the case, had a partial default entered against them for the plaintiffs claims that they did not contest, or had a default judgment entered against them after the court entertained only the plaintiffs evidence. See International Surplus Lines Ins. Co. v. University of Wyo. Research Corp., 850 F.Supp. 1509 (D.Wyo.1994), aff'd, 52 F.3d 901 (10th Cir.1995); Alvarado v. Kallmeyer (In re Kallmeyer), 148 B.R. 271 (Bankr.D.Kan.1992); National Union Fire Ins. Co. v. Boyovich (In re Boyovich), 126 B.R. 348 (Bankr.W.D.Wash.1991); Pacific Energy & Minerals, Ltd. v. Austin (In re Austin), 93 B.R. 723 (Bankr.D.Colo.1988). Here, the District Court granted McCart a default judgment against the Debtor not because he failed to appear at the show cause hearing, but as a sanction for substantial abuse of the discovery process. Several Circuit Courts have held that a default judgment entered against a defendant for abuse of the discovery process has preclusive effect in subsequent litigation. Wolstein v. Docteroff (In re Docteroff), 133 F.3d 210 (3d Cir.1997); Bush v. Balfour Beatty Bahamas, Ltd. (In re Bush), 62 F.3d 1319" }, { "docid": "1450051", "title": "", "text": "See, Fed. R. Crv. P. 55. It is commonplace that a “default judgment” will be entered against a litigant as a sanction for failure to cooperate with discovery orders. See Fed R. Crv. P. 37(b)(2)(C); Hammond Packing Co. v. Arkansas, 212 U.S. 322, 349-53, 29 S.Ct. 370, 379-81, 53 L.Ed. 530 (1909); F.D.I.C. v. Daily, 973 F.2d 1525 (10th Cir.1992). A default judgment issued under those circumstances is entitled to be given preclusive effect under the doctrine of collateral estoppel. See, e.g., Pahlavi v. Ansari (in re Ansari), 113 F.3d 17 (4th Cir.1997); Wolstein v. Docteroff (In re Docteroff), 133 F.3d 210 (3rd Cir.1997); Bush v. Balfour Beatty Bahamas, Ltd. (In re Bush), 62 F.3d 1319 (11th Cir.1995); McCart v. Jordana (In re Jordana), 232 B.R. 469 (10th Cir. BAP 1999). Those cases represent a type of default judgment where the Defendant has appeared and answered but, due to the failure of the Defendant to comply with the required discovery procedures of the litigation, he suffers an adverse judgment without the court having been afforded an opportunity to have a full presentation of evidence from the parties. Nonetheless, for purposes of collateral estoppel, the defendants are deemed to have been afforded a full and fair opportunity to litigate the merits of the controversy. The same is true in the present case. Gordon was afforded a full and fair opportunity to litigate the merits of the case. He did, in fact, vigorously litigate the case in the proceedings which resulted in the first three rulings. Furthermore, despite Gordon’s lack of participation in the later proceedings, the resulting rulings were not entered by default. It is evident that the ALJ considered the evidence presented by Gordon in prior proceedings along with the newly presented evidence when he handed down the Fifth Ruling. Moreover, the Eight Ruling, made by N.L.R.B., was made upon a summary judgment motion. It is evident from that ruling that N.L.R.B. considered the record before it and did not simply enter a judgment by default for lack of Gordon’s appearance. It has been held that a judgment entered on" }, { "docid": "12647554", "title": "", "text": "(11th Cir.1995); FDIC v. Daily (In re Daily), 47 F.3d 365 (9th Cir.1995) (applying federal principles of collateral estoppel). See also Pahlavi v. Ansari (In re Ansari), 113 F.3d 17 (4th Cir.1997), cert. denied, — U.S. —, 118 S.Ct. 298, 139 L.Ed.2d 230 (1997); Gober v. Terra + Corp. (In re Gober), 100 F.3d 1195 (5th Cir.1996) (applying state court principles of collateral estoppel). These Courts held that the “actually litigated” element of collateral estoppel was present because the defendants had a full and fair opportunity to actually litigate the issues in the prior action. Here, the Debtor had every opportunity to litigate the issues and many warnings that the District Court would enter a default judgment against him if he did not comply with court rules. Nevertheless, the Debtor cites numerous cases in support of his position that he did not have an opportunity to actually litigate any of the issues in the prior proceeding. He argues that Marlee Electronics Corp. v. Antonakis (In re Antonakis), 207 B.R. 201 (Bankr.E.D.Cal.1997) supports his position. However, the only similarity between Antonakis and the instant case is that the plaintiff sued Antonakis for fraud and RICO violations and the District Court entered a default judgment against the defendant. The default judgment was not the result of the Debtor’s misconduct during the prior federal court proceeding. In Antonakis, the District Court entered a default judgment against the Debtor for failure to file an answer to the amended complaint or otherwise defend the lawsuit. The Court stated: “[b]efore the suit reached the point requiring the defendant to answer, the District Court granted his counsel’s request to withdraw for nonpayment. Left without counsel, the Debtor merely acquiesced in a default.” 207 B.R. at 204. Clearly Antonakis is readily distinguishable from the instant case. The Debtor also contends that M & M Transmissions, Inc. v. Raynor (In re Raynor), 922 F.2d 1146 (4th Cir.1991), bears a “substantial, even uncanny, similarity” to the instant case. (See Appellant’s Opening Br. at 19.) However,the facts in Raynor form a striking contrast to those in the instant case. In Raynor," }, { "docid": "1450050", "title": "", "text": "personal liability. Gordon has given the Court no evidence, nor has he made credible allegations of extrinsic fraud, that would justify this Court in questioning the validity of the Judgment. 2. Gordon Received a Full and Fair Opportunity to Litigate the Prior Action This is not a case where the Court can say that the Defendant actively litigated the Prior Action to the bitter end. Gordon does not dispute that he litigated the matter through the Third Ruling which resulted from the first proceeding before the Tenth Circuit. After that, however, he took no part in any of the remaining proceedings and the final Judgment was entered in his absence. The general rule is that federal court default judgments have no collateral estoppel effect, because none of the issues is actually litigated. Arizona v. California, 530 U.S. 392, 414, 120 S.Ct. 2304, 2319, 147 L.Ed.2d 374 (2000). However, the usual default judgment is one where a defendant fails to answer or plead and judgment is entered with a total lack of participation from the defendant. See, Fed. R. Crv. P. 55. It is commonplace that a “default judgment” will be entered against a litigant as a sanction for failure to cooperate with discovery orders. See Fed R. Crv. P. 37(b)(2)(C); Hammond Packing Co. v. Arkansas, 212 U.S. 322, 349-53, 29 S.Ct. 370, 379-81, 53 L.Ed. 530 (1909); F.D.I.C. v. Daily, 973 F.2d 1525 (10th Cir.1992). A default judgment issued under those circumstances is entitled to be given preclusive effect under the doctrine of collateral estoppel. See, e.g., Pahlavi v. Ansari (in re Ansari), 113 F.3d 17 (4th Cir.1997); Wolstein v. Docteroff (In re Docteroff), 133 F.3d 210 (3rd Cir.1997); Bush v. Balfour Beatty Bahamas, Ltd. (In re Bush), 62 F.3d 1319 (11th Cir.1995); McCart v. Jordana (In re Jordana), 232 B.R. 469 (10th Cir. BAP 1999). Those cases represent a type of default judgment where the Defendant has appeared and answered but, due to the failure of the Defendant to comply with the required discovery procedures of the litigation, he suffers an adverse judgment without the court having been afforded" }, { "docid": "16625634", "title": "", "text": "action prior to the filing of the petition in bankruptcy. Such a conclusion defies common sense and reason and is at odds with the Supreme Court’s holding in Grogan. See 498 U.S. at 284-85 n. 11, 111 S.Ct. at 658 n. 11. For these reasons, Docteroffs argument fails as to the first and fourth elements of the test. Next, Docteroff asserts that he did not actually litigate any issue in the previous lawsuit because the judgment was not a determination on the merits but was entered against him by default as a sanction for his bad-faith conduct in discovery. We reject Docteroffs contention. Docteroff had every opportunity to fully and fairly litigate any relevant issue in the district court in Washington where Wolstein sued him in the federal court, charging him with fraud in the diversion of progress payments on the construction of the Lady Iris. Docteroff simply elected not to comply with court orders. This is not a typical default judgment where a defendant neglects or elects not to participate in any manner because of the inconvenience of the forum selected by the plaintiffs, the expense associated with defending the lawsuit, or some other reason. See In re Bush 62 F.3d 1319, 1324 (11th Cir.1995); 18 Charles Alan Wright, Arthur R. Miller and Edward H. Cooper, Federal Practice and Procedure § 4442, at 375 & n. 3 (1981). To the contrary, for several months, Docteroff participated extensively in the lawsuit. He filed an answer, noticed Wolstein’s deposition, engaged several lawyers, including local counsel, filed papers with the court, and corresponded with opposing counsel. See 62 F.3d at 1324 (noting defendant’s participation in lawsuit which ultimately ended with default judgment entered against him as sanction). Apparently, Docteroff realized the meritlessness of his position and decided to frustrate orderly litigation by willfully obstructing discovery. We do not hesitate in holding that a party such as Docteroff, who deliberately prevents resolution of a lawsuit, should be deemed to have actually litigated an issue for purposes of collateral estoppel application. See In re Daily, 47 F.3d 365, 368 (9th Cir.1995). In doing so," }, { "docid": "994013", "title": "", "text": "193. Moreover, application of the doctrine of issue preclusion under the circumstances of this case does not raise the same due process concerns that have troubled courts in the context of a “true default judgment” — that is, a judgment entered after a defendant elects not to appear and participate in a case in any way. Allison sought summary judgment on the issue of liability after Dardinger failed to respond to certain discovery requests. But Dardinger otherwise actively participated in the litigation, both before and after summary judgment was entered. Courts assessing the preclusive effect of prior judgments have “distinguished] between ‘true’ default judgments where the defendant failed to answer the complaint from ‘penalty default judgments after a [defendant had filed an answer.” Trentadue v. Zimmerman (In re Zimmerman), No. 15-3093, 2016 WL 929264, at *5 (Bankr. N.D. Ohio Mar. 10, 2016); Bursack, 65 F.3d at 54 (differentiating a “true default judgment” from a situation in which the defendant had, among other things, filed an answer and participated in discovery but failed to appear at trial and holding that, in the latter situation, the issues were actually litigated under applicable state law); Anderson v. Fisher (In re Anderson), 520 B.R. 89, 95 (6th Cir. BAP 2014) (drawing a parallel to Bursack and affirming bankruptcy court’s decision to give preclusive effect to penalty default judgment under applicable state law); see also Wolstein v. Docteroff (In re Docteroff), 133 F.3d 210, 215 (3d Cir. 1997) (“This is not a typical default judgment where a defendant neglects or elects not to participate in any manner .... To the contrary, for several months, [the defendant] participated extensively in the lawsuit.”); Gober v. Terra + Corp. (In re Gober), 100 F.3d 1195, 1204-05 (5th Cir. 1996) (distinguishing the defendant’s post-answer default from a no-answer default and noting that the defendant “had the right to participate in the damages hearing and contest the extent of his culpability, even though he could not contest liability per se”); Bush v. Balfour Beatty Bahamas, Ltd. (In re Bush), 62 F.3d 1319, 1324 (11th Cir. 1995) (declining to give the" }, { "docid": "12621691", "title": "", "text": "do not purport to establish a per se rule that collateral estoppel precludes relitigation of issues whenever punitive damages are assessed against a defendant after default. The rationale for the general rule denying preclusive effect to default judgments is that a party may choose not to litigate issues for reasons that have nothing to do with the merits of the case — for example, if the amount at stake does not justify the expense of contesting the lawsuit. However, Gober did not simply give up at the outset, but actively participated in the litigation for two years, filing counterclaims and making discovery requests. See United States v. Gottheiner (In re Gottheiner), 703 F.2d 1136, 1139 (9th Cir.1983) (giving preclusive effect to prior judgment entered as a result of unopposed summary judgment motion; “[t]hat after many months of discovery [the debtor] decided his case was no longer worth the effort does not alter the fact that he had his day in court”). Furthermore, the court struck Gober’s pleadings only after Gober had repeatedly impeded the course of the proceedings by refusing to comply with discovery and by defying court orders. The Restatement contemplates that “even if [an issue] was not litigated, the party’s reasons for not litigating in the prior action may be such that preclusion would be appropriate.” Restatement (Second) of Judgments § 27 cmt. e (1982). Other circuits, applying federal rules of issue preclusion in dischargeability proceedings, have applied this principle to bar relitigation of issues determined by default as a result of sanctions for discovery abuses and dilatory tactics. See FDIC v. Daily (In re Daily), 47 F.3d 365, 368 (9th Cir.1995) (applying collateral estoppel principles where “denying pre-clusive effect to the [prior] judgment ... would permit [debtor] to delay substantially and perhaps ultimately avoid payment of the debt by deliberate abuse of the judicial process.”); Bush v. Balfour Beatty Bahamas, Ltd. (In re Bush), 62 F.3d 1319, 1324 (11th Cir.1995) (holding that “where a party has substantially participated in an action in which he had a full and fair opportunity to defend on the merits, but subsequently" }, { "docid": "994014", "title": "", "text": "trial and holding that, in the latter situation, the issues were actually litigated under applicable state law); Anderson v. Fisher (In re Anderson), 520 B.R. 89, 95 (6th Cir. BAP 2014) (drawing a parallel to Bursack and affirming bankruptcy court’s decision to give preclusive effect to penalty default judgment under applicable state law); see also Wolstein v. Docteroff (In re Docteroff), 133 F.3d 210, 215 (3d Cir. 1997) (“This is not a typical default judgment where a defendant neglects or elects not to participate in any manner .... To the contrary, for several months, [the defendant] participated extensively in the lawsuit.”); Gober v. Terra + Corp. (In re Gober), 100 F.3d 1195, 1204-05 (5th Cir. 1996) (distinguishing the defendant’s post-answer default from a no-answer default and noting that the defendant “had the right to participate in the damages hearing and contest the extent of his culpability, even though he could not contest liability per se”); Bush v. Balfour Beatty Bahamas, Ltd. (In re Bush), 62 F.3d 1319, 1324 (11th Cir. 1995) (declining to give the defendant “a second bite at the apple” after default was entered against him for obstructive conduct). This is not a situation in which Dardinger failed to appear and participate in the State Court Action, as is the case when a “true default judgment” is entered. To the contrary, Dardinger was actively involved in the State Court Action: He asserted counterclaims, participated in discovery and defended against Allison’s motion for summary judgment. The only thing Dar-dinger did not do was move the State Court to reconsider its order granting summary judgment or appeal the Final Judgment. Because Dardinger took advantage of his full and fair opportunity to litigate in State Court, “the circumstances of the case ... make it equitable” to apply the doctrine of issue preclusion to the Final Judgment. Sweeney, 276 B.R. at 194. Further, “[a]pplying issue preclusion here [would] serve[] its basic purposes — ‘protecting the prevailing party from the expense and vexation attending multiple lawsuits, conserving judicial resources, and fostering reliance on judicial action by minimizing the possibility of inconsistent decisions.’ ”" }, { "docid": "3792424", "title": "", "text": "shall be to the Bankruptcy Reform' Act of 1978, as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (\"BAPCPA”), Pub.L. No. 109-8, 119 Stat. 23, 11 U.S.C. § 101, et seq. . Although the Debtor frames her issues in a slightly different fashion, her argument essentially boils down to a claim that these two elements of collateral estoppel were not met. . In Treglia, the United States Bankruptcy Appellate Panel for the First Circuit had certified the following question to the Supreme Judicial Court of Massachusetts: When a defendant appears in a civil action, files a motion seeking interlocutory relief, obtains that relief, but does not thereafter answer or defend; and when, after a damage hearing (in which the defendant does not participate), default judgment enters; does Massachusetts law preclude the defendant's litigation of the substantive elements underlying the default judgment in a subsequent action initiated by the same plaintiffs? 717 N.E.2d at 250. Although the Treglia court ultimately decided that the default judgment should not have preclusive effect under the specific facts before it, it noted that there might be exceptions to the general proposition. See id. at 249-50. . See, e.g., Cornwell v. Loesch (In re Cornwell), 109 Fed.Appx. 682 (5th Cir.2004); Evans v. Ottimo, 469 F.3d 278, 282 (2d Cir.2006); Herbstein v. Bruetman, 32 Fed.Appx. 158 (7th Cir.2002), aff'd, 266 B.R. 676 (N.D.Ill.2001); Wolstein v. Docteroff (In re Docteroff), 133 F.3d 210, 215 (3d Cir.1997); Bush v. Balfour Beatty Bahamas, Ltd., 62 F.3d 1319, 1324 (11th Cir.1995); Rally Hill Productions, Inc. v. Bursack (In re Bursack), 65 F.3d 51 (6th Cir.1995); F.D.I.C. v. Daily (In re Daily), 47 F.3d 365, 367 (9th Cir.1995); McCart v. Jordana (In re Jordana), 232 B.R. 469, 472 (10th Cir. BAP 1999), aff’d, 216 F.3d 1087 (10th Cir.2000). Although most of these cases applied collateral estoppel principles in nondis-chargeability proceedings following federal default judgment cases, they support the application of a \"substantial participation” analysis when determining the preclusive effect of a state court default judgment. . See, e.g., Federal Ins. Co. v. Gilson (In re Gilson), 250 B.R." }, { "docid": "3792410", "title": "", "text": "proceedings were not identical because the standard for determining the Chapter 93A claim in the state court differs from the standard for determining nondis-chargeability under § 523(a)(2)(A). A. Final judgment on the merits-actually litigated in state court It is within a court’s discretion to apply collateral estoppel to a default judgment. See Int’l Strategies Group, Ltd. v. Pomeroy (In re Pomeroy), 353 B.R. 371, 376 (Bankr.D.Mass.2006). In Massachusetts, however, default judgments are generally not given collateral estoppel effect on an issue in a subsequent action because the issues have not been actually litigated. See Treglia, 717 N.E.2d at 253; see also Staniunas v. Delisle (In re Delisle), 281 B.R. 457, 463 (Bankr.D.Mass. 2002); Phalon v. Varrasso (In re Varrasso), 194 B.R. 537, 539 (Bankr.D.Mass. 1996); Restatement (Second) of Judgments § 27 cmt. e (1982) (in the case of a judgment entered by default, none of the issues is actually litigated, therefore, the judgment should not have preclusive effect). Nonetheless, the Supreme Judicial Court of Massachusetts has recognized that there are situations where, following a default judgment, an issue may be given preclusive effect in subsequent litigation between the same parties: We can, for example, envision circumstances in which a litigant may so utilize our court system in pretrial procedures, but nonetheless be defaulted for some reason, that the principle and rationale behind collateral estoppel would apply. See, e.g., Matter of Gober, 100 F.3d 1195 (5th Cir.1996) (holding that default judgment based on failure to answer does not support issue preclusion but where default issued as discovery sanction against defendant debtor after two years of litigation in which defendant had answered and denied all allegations of complaint, collateral estoppel applied); In re Bush, 62 F.3d 1319, 1324 (11th Cir.1995) (applying collateral estoppel effect to prior default judgment against debtor based on fraud, where debtor “actively participated” in adversary process for almost one year through filing answer, counterclaim, and discovery requests). Treglia, 717 N.E.2d at 254. In addition, most federal courts of appeal have recognized an exception to the general rule that collateral estoppel does not apply to a default judgment. These" }, { "docid": "12647550", "title": "", "text": "District Court and the bankruptcy court litigation involved the same issue-fraud. Secondly, those issues were determined by a valid and final judgment. Thirdly, the Debtor was a party to the prior litigation. Finally, the Debtor had a full and fair opportunity to litigate the issue of fraud. Wolstein v. Docteroff (In re Docteroff), 133 F.3d 210 (3d Cir.1997); Bush v. Balfour Beatty Bahamas, Ltd. (In re Bush), 62 F.3d 1319 (11th Cir.1995); FDIC v. Daily (In re Daily), 47 F.3d 365 (9th Cir.1995). The Debtor contends that the bankruptcy court erred when it granted preclusive effect to the District Court’s findings in the default judgment since it was entered by default. The Debtor’s argument implies that he did not have notice of the show cause hearing that resulted in the entry of default against him. On the contrary, the record reflects that the Debtor received notice of the hearing and filed a letter in response. That letter did not comply with court rules in spite of the District Court’s repeated warnings that a failure to comply with court rules would result in a default judgment against the Debtor. At the conclusion of the hearing, the District Court made specific findings of fact regarding the Debtor’s conduct and its reasons for entering the default judgment against him. Therefore, the Debtor’s argument is without merit and will not be considered further. Of all the assignments of error, the Debtor argues most strenuously against the bankruptcy court’s determination that the issue of fraud was actually litigated in the District Court proceeding. At the outset, it is apparent that the Debtor is twisting the term “default judgment.” In this case, the entry of a “default judgment” against the debtor was not the traditional “default” situation where a judgment is entered against a defendant who has been served but has failed to appear or plead. Such a default is always subject to collateral attack on a number of grounds. Here the default was entered as a sanction where the debtor was properly served, filed an initial answer and given every opportunity to defend himself. He" }, { "docid": "3087529", "title": "", "text": "implication that a trial, itself, need not necessarily be held for an issue to be actually litigated for the purposes of collateral estoppel. However, other decisions provide additional guidance on this question. For example, a consent judgment, entered without a trial, has been recognized to have issue preclusive effect. See Tway, 161 B.R. at 278 n. 13 (recognizing Klingman v. Levinson, 831 F.2d 1292 (7th Cir.1987); Frank v. Daley (In re Daley), 776 F.2d 834 (9th Cir.1985); Halpern v. First Georgia Bank (In re Halpern), 810 F.2d 1061 (11th Cir.1987) as all holding that consent judgments have preclusive effect in bankruptcy cases). However, there must have been a full and fair opportunity for the issue to have been presented. But a default judgment is different than a consent judgment. The general rule is that a default judgment will not be granted preclusive effect. An example of the underlying reasons for this general rule is because of the possibility that the default judgment is merely accepted by the losing party because the amount at stake is not worth disputing at that time. In such a situation, collateral estoppel will not apply in future proceedings. See United States v. Gottheiner (In re Gottheiner), 703 F.2d 1136, 1140 (9th Cir.1983) (citing Spilman v. Harley, 656 F.2d 224 (6th Cir.1981); Commonwealth of Massachusetts v. Hale, 618 F.2d 143 (1st Cir.1980); In re McMillan, 579 F.2d 289 (3rd Cir.1978)). But there are recently decided exceptions to the this general rule. For example, if the losing party has significantly participated in the previous action, such as by engaging in discovery over a period of sixteen months, then collateral estoppel will apply. Id. Further, if the losing party in the previous action has actively participated in the action over a period of time and has engaged in serious misconduct, such as refusing to comply with discovery and obstructing the actual judicial process of litigation, then collateral estoppel will apply. See FDIC v. Daily (In re Daily), 47 F.3d 365, 368-69 (9th Cir.1995); Bush v. Balfour Beatty Bahamas Limited (In re Bush), 62 F.3d 1319, 1324-25 (11th Cir.1995);" }, { "docid": "3087533", "title": "", "text": "judgment? The debtor-defendant does not dispute that the issue in question in this matter is the same as the issue in question in the previous matter: the fraudulent conduct of the debtor-defendant in the sale of investments to the plaintiff. Thus, there is no genuine issue of material fact concerning the first requirement, which has been met. Concerning the third requirement, whether the previous court’s determination was necessary to the resulting final judgment, it is not disputed by the debtor-defendant. It is evident to this court that the issue was necessary to the previous judgment and there is no question that the previous judgment was final. The debtor-defendant took no appeal, as supported by the filing of the order by the plaintiff in the state court. Thus, there is no genuine issue of material fact as to the third requirement, which has been met. The second requirement of the test for the application of collateral estoppel, whether the issue has been litigated, is hotly disputed by the debtor-defendant. The debtor-defendant presents numerous cites to support his position that the issue of his allegedly fraudulent conduct had not been actually litigated in the previous proceeding. However, the debtor-defendant’s argument focuses on the claim that he was not able to present his arguments to the court and have them considered. As far as it goes, the debtor-defendant is correct in his argument. For, the debtor-defendant does not address the claim of the plaintiff that the debtor-defendant’s conduct in the previous proceeding warranted a default judgment such that collateral estoppel would apply. This court recognizes that at least four circuits have formally adopted the exception to the general rule that serious obstructive conduct resulting in a default judgment may result in the application of collateral estoppel. See FDIC v. Daily (In re Daily), 47 F.3d 365, 368-69 (9th Cir.1995); Bush v. Balfour Beatty Bahamas Limited (In re Bush), 62 F.3d 1319, 1324-25 (11th Cir.1995); Gober v. Terra + Corporation, 100 F.3d 1195, 1205-6 (5th Cir.1996); Pahlavi v. Ansari, 113 F.3d 17, 19-20 (4th Cir.1997). What is essential to the determination of this matter" }, { "docid": "3792411", "title": "", "text": "judgment, an issue may be given preclusive effect in subsequent litigation between the same parties: We can, for example, envision circumstances in which a litigant may so utilize our court system in pretrial procedures, but nonetheless be defaulted for some reason, that the principle and rationale behind collateral estoppel would apply. See, e.g., Matter of Gober, 100 F.3d 1195 (5th Cir.1996) (holding that default judgment based on failure to answer does not support issue preclusion but where default issued as discovery sanction against defendant debtor after two years of litigation in which defendant had answered and denied all allegations of complaint, collateral estoppel applied); In re Bush, 62 F.3d 1319, 1324 (11th Cir.1995) (applying collateral estoppel effect to prior default judgment against debtor based on fraud, where debtor “actively participated” in adversary process for almost one year through filing answer, counterclaim, and discovery requests). Treglia, 717 N.E.2d at 254. In addition, most federal courts of appeal have recognized an exception to the general rule that collateral estoppel does not apply to a default judgment. These courts have ruled that the “actual litigation” requirement of collateral estoppel may be satisfied if the party actively or substantially participated in the proceedings prior to the entry of a default judgment. See Pomeroy, 353 B.R. at 376-77; see also Birdsall v. Tulloch (In re Tulloch), 373 B.R. 370, 386 (Bankr.D.N.J. 2007) (concluding that due to defendant’s substantial participation in the case, the Supreme Judicial Court of Massachusetts would deem those issues decided by the state court to have been “actually litigated” for issue preclusion purposes). These courts have reasoned that if a party was afforded a reasonable opportunity to defend in the prior action but chose not to do so, the party could have reasonably foreseen the consequences of not defending the action and it would be “undeserved” to give a “second bite at the apple when he knowingly chose not to defend himself in the first instance.” Bush, 62 F.3d at 1324 (citing Jones v. Wilson (In re Wilson), 72 B.R. 956, 959 (Bankr.M.D.Fla.1987)). Although a few courts have declined to adopt a" } ]

[ { "docid": "20683537", "title": "", "text": "that internal relocation ... [is] impossible,” although that was not the intent of our opinion. However, I do not agree that our decisions in Hasan v. Ashcroft, 380 F.3d 1114 (9th Cir.2004), Singh v. Gonzales, 439 F.3d 1100 (9th Cir.2006), and the substance of our opinion in Lemus-Galvan, conflict with the governing regulations. In overruling these precedents, the majority throws the baby out with the bath water, and reaches a conclusion that distorts the BIA’s carefully reasoned decision in Maldonado’s case. Our decisions in Hasan, Singh, and Lemus-Galvan did not alter the burden of proof set forth in 8 C.F.R. § 1208.16(c)(3). In Hasan, we noted that “the Hasans have not presented substantial grounds for believing that they would be unable to live elsewhere in the country safely,” and placed equal emphasis on the fact that “there was no substantial evidence offered that the future persecution the Hasans would experience would rise to the level of torture.” 380 F.3d at 1123. Similarly, in Singh, we concluded that “[t]he record evidence does not compel a finding that it is more likely than not that Mr. Singh will be tortured upon returning to India.” 439 F.3d at 1113. Moreover, we noted that: If Mr. Singh’s fear is based on the mistaken belief of police in a certain area, he would presumably be safe in another area of India where the police do not take him for a separatist. The record contains no evidence that simply being an apolitical Sikh would cause police to torture Mr. Singh if they do not believe he is a separatist. Id. In Lemus-Galvan, the petitioner sought CAT relief, alleging that if he were returned to Mexico, he would be tortured by a drug cartel family because they “had been involved in a violent turf war with members of Lemus-Galvan’s extended family in the northern border regions of Mexico.” 518 F.3d at 1083. On appeal, we concluded: Lemus-Galvan failed to establish that internal relocation within Mexico was impossible. See 8 C.F.R. § 208.16(c)(3)(ii); see also Hasan v. Ashcroft, 380 F.3d 1114, 1123 (9th Cir.2004). Substantial evidence .therefore supports" } ]

[ { "docid": "22342986", "title": "", "text": "torture.” Tamara-Gomez v. Gonzales, 447 F.3d 343, 351 (5th Cir.2006). In addressing the state-action prong of her CAT claim, Garcia-Milian points to her testimony that the police were unwilling to investigate the attack by the masked men which occurred before she left the country, implicitly arguing that because the police previously acquiesced in torture, the police are likely to acquiesce in future instances of torture. See Reyes-Sanchez v. Atty. Gen., 369 F.3d 1239, 1242 n. 7 (11th Cir.2004). She has also submitted evidence that the Guatemalan government has been generally ineffective in preventing or investigating violence against women. We must determine whether this evidence compels the conclusion that the Guatemalan government would acquiesce in torture if Garcia-Milian returned to Guatemala. Public officials acquiesce in torture if, “prior to the activity constituting torture,” the officials: (1) have awareness of the activity (or consciously close their eyes to the fact it is going on); and (2) breach their legal responsibility to intervene to prevent the activity because they are unable or unwilling to oppose it. Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1059 (9th Cir.2006) (quoting 8 C.F.R. § 208.18(a)(7)); see also Cole v. Holder, 659 F.3d 762, 771 (9th Cir.2011). By contrast, “[a] government does not acquiesce in the torture of its citizens merely because it is aware of torture but powerless to stop it.” Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir.2007) (internal quotation marks omitted). Evidence that the police were aware of a particular crime, but failed to bring the perpetrators to justice, is not in itself sufficient to establish acquiescence in the crime. Instead, there must be evidence that the police are unable or unwilling to oppose the crime. Otherwise, “a person could obtain CAT relief merely because he was attacked by a gang of neighborhood thugs whom the police were unable to apprehend.” Reyes-Sanchez, 369 F.3d at 1243. In Rreshpja v. Gonzales, for example, the applicant claimed that the police had acquiesced in her attempted kidnaping because when she reported the crime, the police told her “that the information she had provided was insufficient to identify or" }, { "docid": "22342987", "title": "", "text": "Gonzales, 458 F.3d 1052, 1059 (9th Cir.2006) (quoting 8 C.F.R. § 208.18(a)(7)); see also Cole v. Holder, 659 F.3d 762, 771 (9th Cir.2011). By contrast, “[a] government does not acquiesce in the torture of its citizens merely because it is aware of torture but powerless to stop it.” Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir.2007) (internal quotation marks omitted). Evidence that the police were aware of a particular crime, but failed to bring the perpetrators to justice, is not in itself sufficient to establish acquiescence in the crime. Instead, there must be evidence that the police are unable or unwilling to oppose the crime. Otherwise, “a person could obtain CAT relief merely because he was attacked by a gang of neighborhood thugs whom the police were unable to apprehend.” Reyes-Sanchez, 369 F.3d at 1243. In Rreshpja v. Gonzales, for example, the applicant claimed that the police had acquiesced in her attempted kidnaping because when she reported the crime, the police told her “that the information she had provided was insufficient to identify or arrest the man who had attacked her.” 420 F.3d 551, 553 (6th Cir.2005). The court upheld the BIA’s denial of her CAT claim because the police’s inability to solve a crime under those circumstances did not constitute acquiescence in the crime. Id. at 557. Similarly, in this case, Garcia-Milian’s testimony that the police declined to investigate the masked men’s attack because they lacked sufficient information does not compel the conclusion that the police acquiesced in the attack, and therefore . does not support Garcia-Milian’s claim that it is more likely than not the police will acquiesce in any future attacks if she returns to Guatemala. Nor does evidence that a government has been generally ineffective in preventing or investigating criminal activities raise an inference that public officials are likely to acquiesce in torture, absent evidence of corruption or other inability or unwillingness to oppose criminal organizations. In Tamarar-Gomez, for example, the court rejected the petitioner’s claim that the Co-lumbian government acquiesced in attacks by a narco-terrorist organization, even though the police informed the petitioner that" }, { "docid": "16584596", "title": "", "text": "Apulo, El Salvador. When Revelo identified her husband’s body, she observed gunshot wounds to her husband’s mouth and thorax, as well as “a well-defined burn surrounding his entire neck.” (Def.’s Resp. Pis.’ SOMF ¶¶ 56-63.) Plaintiff Daniel Alvarado (“Alvarado”) is a native of El Salvador, is not a United States citizen, and has resided in Sweden since 1986. (Second Am. Compl. ¶ 12; Pis.’ Resp. Def.’s SOMF ¶ 4.) Alvarado was abducted in August 1983 by men dressed in civilian clothes and carrying military-issued rifles. He was taken to the Treasury Police headquarters, and placed in a cell. The men connected wires to Alvarado’s toes and ran an electric current through his body. They also placed a hood over his head and beat him. The men accused Alvarado “of being a guerrilla fighter” and that he was responsible for the death of Lt. Cmdr. Albert Schaufelber-ger, a United States military advisor in El Salvador. Alvarado alleges that the individual in charge was Major Ricardo Pozo, the chief of the intelligence section of the Treasury Police and the head of the official Salvadoran investigation into Lt. Cmdr. Schaufelberger’s death. Pozo told Alvarado “that his cooperation was necessary because there was a reward for finding the perpetrator of the Schaufelberger assassination, and that Maj. Pozo wanted to give the reward to ‘his boys,’ Mr. Alvarado’s torturers.” Alvarado was tortured over the course of four days, after which point he “could not withstand further torture, and he signed a statement, which he did not read, and which he later discovered attributed to him responsibility for the Schaufelberger murder.” Alvarado was subsequently taken to a media event at the Treasury Police headquarters — at which Defendant presided — and was forced to say that he killed Lt. Cmdr. Schaufelber-ger. Upon return to his cell, Alvarado was once again tortured with electric shocks, causing him to suffer a nervous breakdown. Alvarado was transferred to another cell within “the more public part” of the Treasury Police headquarters eighteen days later. Several weeks later, he was questioned by two representatives from the United States and was given" }, { "docid": "9037738", "title": "", "text": "opinion. PETITION FOR REVIEW GRANTED; VACATED AND REMANDED Rodriguez also applied for asylum and for withholding of removal but did not appeal the denial of those forms of relief. The BIA also cited two cases to support its determination that Rodriguez's tattoos would not put him at substantial risk of torture in El Salvador. The Court is not persuaded by these cases for several reasons. First, CAT claims are highly fact specific, which means that one applicant may be able to show a substantial risk of torture in El Salvador due to his tattoos while another may not. Huang v. Ashcroft , 390 F.3d 1118, 1123 (9th Cir. 2004). Second, the cases cited by the BIA are readily distinguishable. In Castillo-Pena v. Holder , 482 F. App'x 847 (4th Cir. 2012), the Court found that an unrepresented applicant had failed to show that it was more likely than not that he would be tortured by Salvadoran police because of his tattoos. The case did not address the combined risks posed by police, vigilante groups, and gangs in El Salvador. Id . at 848. In the second, Andrade v. Lynch , 798 F.3d 1242 (9th Cir. 2015), the Ninth Circuit affirmed the BIA's denial of CAT relief to a Salvadoran applicant who had two discreet non-gang-related tattoos. Id . at 1245. However, those tattoos-which were merely his and his girlfriend's initials-do not pose the same level of risk as the plentiful and conspicuous gang tattoos on Rodriguez. Indeed, the case most similar to the one at bar was not even cited by the BIA and supports Rodriguez's CAT claim here. In Cole v. Holder , 659 F.3d 762 (9th Cir. 2011), a former gang member with conspicuous gang tattoos on his face, calves, arms, and back sought CAT relief because he feared that he would be tortured by the gangs, police forces, and anti-gang death squads in his native Honduras. Id . at 765. The Ninth Circuit vacated and remanded the BIA's denial of CAT relief because it determined that the BIA had failed to aggregate the risk of torture that" }, { "docid": "23205743", "title": "", "text": "To qualify for CAT relief, a petitioner must show that she more likely than not will be tortured if she is removed to her native country. Zheng, 644 F.3d at 885. DHS regulations define torture as an “act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ... for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official....” 8 C.F.R. § 208.18(a)(1). The regulations further state, “[t]orture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not amount to torture.” 8 C.F.R. § 208.18(a)(2). We have held that “awareness and willful blindness” are sufficient to constitute acquiescence by government officials; actual knowledge or willful acceptance is not required. Zheng v. Ashcroft, 332 F.3d 1186, 1197 (9th Cir.2003). On this record, substantial evidence does not compel a finding that Vitug will more likely than not be tortured if he returns to the Philippines. In Ahmed, although we reversed the BIA’s denial of withholding of removal, we found that substantial evidence did support the BIA’s denial of CAT relief. 504 F.3d at 1200-01. We reasoned that while the four beatings Ahmed suffered were “certainly forms of persecution, it is not clear that these actions would rise to the level of torture” under substantial evidence review. Id. at 1201. Similarly, it is not clear that Vitug’s beatings and economic deprivation rise to the level of torture. Thus, we deny Vi-tug’s petition for review of the BIA’s denial of CAT relief. IV. CONCLUSION For the reasons set forth above, we grant the petition for review as to Vitug’s application for withholding of removal, deny the petition as to Vitug’s application for CAT relief, and remand with instruction that the BIA enter an order granting withholding of removal. PETITION GRANTED IN PART, DENIED IN PART, AND REMANDED. . The IJ found that Vitug did not suffer past persecution on account" }, { "docid": "10756778", "title": "", "text": "had not been tortured in the past; she did not show an inability to relocate to a part of Honduras where her likelihood of harm would be diminished, as her brother’s wife had done; and she did not show acquiescence to violence by the Honduran police, who in fact arrested a gang member and requested that she give a statement after the robbery of her father’s business in 2006. Ramirez-Mejia does not specifically contest these findings. Instead, she emphasizes the country reports discussing gang violence and police corruption in Honduras. She also reiterates her allegations that the police recommended against filing a report after her brother’s murder and responded with indifference when she disclosed the arrested gang member’s threats in 20Q6 and the anonymous notes in 2013. This evidence, she claims, shows that it is more probable than not that she will be tortured if removed to Honduras. Ramirez-Mejia has not demonstrated that no reasonable factfinder could conclude that she did not qualify for CAT protection. See Chen, 470 F.3d at 1134. First, she has not contested the finding that she was not tortured before leaving Honduras or after returning following her first and second removal. Nor has she contested the finding that her brother’s wife and family members were not tortured, despite remaining in Honduras after her brother’s murder. Finally, the fact that her brother’s wife has not been harmed since moving to another part of Honduras suggests that any danger of harm could be mitigated through relocation. Based on this evidence, a reasonable factfinder could have found that Ramirez-Mejia would not more likely than not be tortured if removed to Honduras. Although the country reports and alleged threats emphasized by Ramirez-Mejia may weigh against this conclusion, they do not compel the opposite conclusion. See id. Second, Ramirez-Mejia has offered little evidence that the government would acquiesce in gang members’ attempts to harm her. Although she alleged that the police told her not to report her brother’s murder and “not to get involved with these people,” she did not allege that the police stated or otherwise indicated that they" }, { "docid": "10756779", "title": "", "text": "not contested the finding that she was not tortured before leaving Honduras or after returning following her first and second removal. Nor has she contested the finding that her brother’s wife and family members were not tortured, despite remaining in Honduras after her brother’s murder. Finally, the fact that her brother’s wife has not been harmed since moving to another part of Honduras suggests that any danger of harm could be mitigated through relocation. Based on this evidence, a reasonable factfinder could have found that Ramirez-Mejia would not more likely than not be tortured if removed to Honduras. Although the country reports and alleged threats emphasized by Ramirez-Mejia may weigh against this conclusion, they do not compel the opposite conclusion. See id. Second, Ramirez-Mejia has offered little evidence that the government would acquiesce in gang members’ attempts to harm her. Although she alleged that the police told her not to report her brother’s murder and “not to get involved with these people,” she did not allege that the police stated or otherwise indicated that they would permit harm to befall her if she did file a report. Additionally, she asserted that the police allowed her to be threatened by a gang member after the robbery of her father’s business in 2006, but she acknowledged that the police arrested the gang member and insisted that she file a report against him. Finally, she alleged that officials advised her to leave the country when she disclosed the anonjunous notes she had received. Again, however, she did not allege that the officials expressed any intent to acquiesce in her torture if she did not leave. This evidence, as well as the country reports and related testimony, does not compel the conclusion that the government would acquiesce in Ramirez-Mejia’s torture if she returned to Honduras. We agree with the BIA s conclusion that Ramirez-Mejia does not qualify for CAT protection. Petition DENIED. . It seems agreed that authority over granting parole was- transferred from the Attorney General to the DHS in 2002 as a result of the Act that created the DHS; we need" }, { "docid": "22337492", "title": "", "text": "that the BIA failed to give “reasoned consideration” to Cole’s evidence; (2) fails to follow the standard for granting relief under the Convention Against Torture (“CAT”), see Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir.2007), by reweighing the evidence and stringing together a series of hypothetical events to justify its conclusion that Cole may be tortured if returned to Honduras because he would be misidentified as being a gang member based on his tattoos; (3) fails to appreciate the lack of evidence that Cole would be intentionally deprived medical care if he were returned to Honduras; and (4) accepts Cole’s problematic argument that he may be entitled to CAT relief on the basis of his gang-related tattoos. I would deny Cole’s petition on the basis that substantial evidence supported the BIA’s decision and nothing Cole presented in his petition compels a contrary result. I Neither the IJ nor the BIA made an adverse credibility finding, therefore we take Cole’s factual allegations as true. Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir.2010). Because of his criminal background, the IJ and BIA concluded that Cole is not entitled to either asylum or withholding of removal. Cole does not challenge these decisions. Rather, the only issue before this court is his assertion that he is entitled to protection under CAT. A 1. Cole’s Background and Testimony Cole is a native and citizen of Honduras who entered the United States with his family when he was eleven years old and has since acquired a lengthy criminal record. He has no extended family in Honduras. Cole is African-American and has numerous gang tattoos on his arms, legs and face that he acquired while in prison after he joined the Crips, an African-American gang. After his release from prison, Cole apparently left the gang and worked for a homeless services agency. He states he did not get the gang tattoos removed because tattoo removal is a long and painful process. In 2007, Cole was shot in a drive-by shooting. As a result of the shooting, he suffers from certain ongoing medical problems and has" }, { "docid": "2513957", "title": "", "text": "Guatemalan officials, he must show that public officials will acquiesce in his torture. Demonstrating “acquiescence of a public official” requires proof “that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” Id. § 1208.18(a)(7). “This inquiry centers upon the willfulness of a government’s non-intervention.” Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir.2007). “A government does not acquiesce in the torture of its citizens merely because it is aware of torture but powerless to stop it, but it does cross the line into acquiescence when it shows willful blindness toward the torture of citizens by third parties.” Marroquin-Ochoma, 574 F.3d at 579 (quoting Mouawad, 485 F.3d at 413). Here, the record does not compel the conclusion that it is more likely than not that Somoza will be tortured with the acquiescence of a public official. Although a 2010 Department of State Human Rights Report on Guatemala observes that two-thirds of Guatemalan police districts remained understaffed, another country report indicates that Guatemala has partnered with the United Nations, the United States, Canada, and several European countries to enact anti-gang and anti-narcotics reform and to improve law enforcement practices. In this case, Guatemalan authorities investigated and even arrested Arturo after Somoza reported the gang violence, which demonstrates that local authorities are not unwilling to control MS-13. See Gutierrez-Vidal v. Holder, 709 F.3d 728, 733 (8th Cir.2013) (holding, un der substantial-evidence review, that local authorities are not unwilling to control gang violence where evidence indicates that they investigated the gang and made arrests). Somoza, however, claims to have heard that MS-13 bribed local police to release Arturo — an allegation he argues supports a conclusion that Guatemalan police would acquiesce in his torture if he is returned now. While it is possible that corruption contributed to Arturo’s release over ten years ago, the country reports provide numerous alternative explanations that do not involve government corruption. The Department of State report observes that many criminals avoid prosecution because “[jjudges, prosecutors, plaintiffs, and witnesses” experience frequent" }, { "docid": "16958444", "title": "", "text": "was not severe enough and because they were “isolated incidents during an extended period of time”). Moreover, the last time that BonillaMorales interacted with her brother-in-law (after she had moved to a different area in Honduras), he did not harm her. Although she said this was because other people were around at the time, she did not claim that he even attempted to harm her or that he communicated any threats to her. Three incidents over a 40-year time period, combined with the fact that he did not harm her once she moved, suggest that the IJ’s and the BIA’s findings were supported by substantial evidence. See 8 C.F.R. § 208.16(c)(3)(h) (listing “[ejvidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured” as one of the factors a court should analyze when deciding whether a CAT applicant has carried her burden). Aside from the past mistreatment that she allegedly suffered, Bonilla-Morales has little support for her CAT claim. Particularly troubling is that Bonilla-Morales made no attempt to establish that her brother-in-law is still a policeman in the Honduran military or is even still alive (a legitimate question considering that he first attacked her 45 years ago). Nor did she present any evidence that he has communicated any threats against her to her or her family members, many of whom remain in Honduras. She never even identified him by name. Bonilla-Morales also failed to mention to the border officials the mistreatment that she allegedly suffered due to her brother-in-law. In fact, she told them that she had no fear of returning to Honduras. The record thus does not compel reversal of the IJ’s and the BIA’s conclusion that Bonilla-Morales failed to prove that she would more likely than not be tortured upon returning to Honduras. III. CONCLUSION For all of the reasons set forth above, we DENY Bonilla-Morales’s petition for review." }, { "docid": "22624304", "title": "", "text": "suggests that the gang held any sort of belief system that they perceived Santos-Lemus to oppose. Without evidence of an actual political opinion or motive in Santos-Lemus’s or the gang’s actions, his claim fails. The Board’s determination that a general aversion to gangs does not constitute a political opinion for asylum purposes was reasonable and we deny Santos-Lemus’s petition based on this claim. IV. Santos-Lemus also challenges the Board’s denial of his request for relief under CAT. To obtain protection under CAT, an applicant must show “that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). The torture must be inflicted “by or at the instigation of or with the consent or acquiescence of a public official.” Id. § 1208.18(a)(1). Torture is “an extreme form of cruel and inhuman treatment,” and includes only “severe pain or suffering.” Id. § 1208.18(a)(1), (2). The Board agreed with the IJ’s decision, and concluded that Santos-Lemus did not establish that he will more likely than not be tortured in El Salvador, observing again that his mother had remained unharmed in El Salvador since his departure. Santos-Lemus counters that it is more likely than not he will be subject to torture upon returning to El Salvador because “the police were unwilling or unable to protect him from gang violence and that very likely, the police themselves either cooperated with the Maras gang or were themselves members of this gang.” Santos-Lemus provides no evidence that would compel reversal of the Board’s determination. His argument that police are unwilling to protect him or are themselves members of the gang is unsupported and speculative, particularly because he failed to report any incidents to the police. Moreover, it is undisputed that any torture Santos-Lemus fears would be committed by private individuals, not the government, and the Salvadoran government was not even aware that Santos-Lemus or his brothers had been targeted by the gang because the incidents were never reported and there is no evidence in the record suggesting the government may have otherwise" }, { "docid": "22337501", "title": "", "text": "that the government of Honduras will acquiesce in his torture at the hands of other gang members or the death squads nor has he established that it is more likely than not to occur to him. It is not enough to show that gang members have killed other gang members or that death squads have tortured and killed gang members. ... The evidence does not establish that the government acquiesces in such conduct and in fact, reflects the opposite. The government is trying to handle the huge gang problem they face and are attempting to receive specialized training. They are taking steps to prosecute police officers for abuse of power. Accordingly, the Court finds that the respondent is unable to establish a likeli hood of torture in Honduras by either the government or with the government’s acquiescence.... 2. The BIA’s Decision In October 2009, the BIA, in a single judge decision, affirmed the IJ. The BIA agreed with the IJ that Cole: failed to meet his burden of proving that it is more likely than not that he will be tortured based on his race and gang related tattoos and former gang member status upon return to Honduras. See 8 C.F.R. §§ 1208.16-18; Arteaga v. Mukasey, 511 F.3d 940 (9th Cir.2007). The Immigration Judge properly concluded that the expert witness’s claim that the respondent will be tortured was unpersuasive in light of the other evidence, including the State Department report, contained in the record because the respondent’s expert failed to give specific examples to corroborate his opinion; the record does not compel a contrary conclusion. See Dukuly v. Filip, 553 F.3d 1147 (9th [8th] Cir.2009); Shehu v. Gonzales, 443 F.3d 435 (5th Cir.2006). He further properly determined that the evidence does not establish that each event in the chain of events proposed by the respondent is more likely than not to occur. Matter of J-F-F-, 23 I. & N. Dec. 912 (A.G.2006); 8 C.F.R. §§ 1208.16-.18. For example, the evidence does not establish that, as a black, tattooed, ex-gang member, it is more likely than not that the police would" }, { "docid": "22337491", "title": "", "text": "address it. NOONAN, Circuit Judge, concurring: Cole’s peril comes from his possession of tattoos. Before exposing him to that peril, he should be given the chance to remove the tattoos. The Board of Immigration Appeals has the discretion, in these extraordinary circumstances, to defer his deportation until the tattoos are removed. See Barapind v. Reno, 225 F.3d 1100, 1113 (9th Cir.2000). Accordingly, I vote to remand to the BIA to exercise this discretion. If the BIA does exercise this discretion and the tattoos are removed, or if Cole declines to seek removal of the tattoos, I vote to deny Cole any further delay in his deportation. If the BIA does not exercise its discretion or if the tattoos are not removed, I concur in Judge Berzon’s opinion. CALLAHAN, Circuit Judge, dissenting: I dissent because the majority, in reviewing Cole’s assertion that he will be tortured if returned to Honduras because of his gang tattoos, improperly substitutes its judgment for that of the BIA. Specifically, the majority: (1) manufactures a procedural basis for remand by deciding that the BIA failed to give “reasoned consideration” to Cole’s evidence; (2) fails to follow the standard for granting relief under the Convention Against Torture (“CAT”), see Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir.2007), by reweighing the evidence and stringing together a series of hypothetical events to justify its conclusion that Cole may be tortured if returned to Honduras because he would be misidentified as being a gang member based on his tattoos; (3) fails to appreciate the lack of evidence that Cole would be intentionally deprived medical care if he were returned to Honduras; and (4) accepts Cole’s problematic argument that he may be entitled to CAT relief on the basis of his gang-related tattoos. I would deny Cole’s petition on the basis that substantial evidence supported the BIA’s decision and nothing Cole presented in his petition compels a contrary result. I Neither the IJ nor the BIA made an adverse credibility finding, therefore we take Cole’s factual allegations as true. Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir.2010). Because of" }, { "docid": "16958431", "title": "", "text": "was not afraid to return to Honduras; (2) she claimed that her husband was killed in 1973 by a gang that did not even exist until the 1980s or 1990s; and (3) her testimony was inconsistent regarding dates of the mistreatment allegedly suffered by her and her family. Nonetheless, the IJ alternatively found that even if Bonilla-Morales’s testimony were credible, her claims were without merit. The IJ first found that she had not established eligibility for asylum because the alleged harm suffered by her and her family in Honduras was not on account of any protected ground. Next, the IJ concluded that Bonilla-Morales did not qualify for protection under the CAT because she presented no evidence that the government was willfully blind to the criminal conduct of her brother-in-law. In May 2009, the BIA dismissed Bonilla-Morales’s appeal with regard to her claims for asylum and the withholding of removal, reasoning that even if BonillaMorales were credible, she had not established a nexus between her alleged persecution in Honduras and one of the five protected grounds under the Immigration and Nationality Act (INA). The BIA also found that “the record does not indicate that it is more likely than not that [Bonilla-Morales] will face torture ... upon return to Honduras,” and it thus denied her CAT claim. Bonilla-Morales has timely appealed. II. ANALYSIS A. Standard of review We review the factual determinations of the IJ and the BIA under the “substantial evidence test.” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir.2004). Under this standard, we will not reverse a factual determination unless we find “that the evidence not only supports a contrary conclusion, but compels it.” Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir.2004) (emphasis in original). Because the BIA analyzed Bonilla-Morales’s claims on the assumption that her testimony was credible, we will do so as well. B. Asylum An alien who seeks asylum must establish that she meets the definition of a “refugee,” which means a person who is unable or unwilling to return to her home country because of past persecution or a “well-founded fear” of future" }, { "docid": "2513956", "title": "", "text": "578-79 (8th Cir.2009) (holding that opposition to a gang “does not compel a finding that the gang’s threats were on account of an imputed political opinion”). Moreover, nothing in the record suggests that MS-13 targeted Somoza for political reasons. Rather, the gang attacked him for resisting its extortionate demands. Accordingly, the BIA’s legal determinations were correct, and substantial evidence supports its decision to deny withholding of removal under § 1231(b)(3)(A). Unlike § 1231, the CAT does not require Somoza to show he belongs to a protected group. Id. at 579. “Rather, to qualify for CAT relief, [Somoza] must demonstrate that it is more likely than not that [he] will be tortured if removed to Guatemala.” Id. (citing 8 C.F.R. § 1208.16(c)(2)). The torture must be “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). Because Somoza does not contend that his predicted torture would be by or at the instigation of or with the consent of Guatemalan officials, he must show that public officials will acquiesce in his torture. Demonstrating “acquiescence of a public official” requires proof “that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” Id. § 1208.18(a)(7). “This inquiry centers upon the willfulness of a government’s non-intervention.” Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir.2007). “A government does not acquiesce in the torture of its citizens merely because it is aware of torture but powerless to stop it, but it does cross the line into acquiescence when it shows willful blindness toward the torture of citizens by third parties.” Marroquin-Ochoma, 574 F.3d at 579 (quoting Mouawad, 485 F.3d at 413). Here, the record does not compel the conclusion that it is more likely than not that Somoza will be tortured with the acquiescence of a public official. Although a 2010 Department of State Human Rights Report on Guatemala observes that two-thirds of Guatemalan police districts remained understaffed, another" }, { "docid": "23078742", "title": "", "text": "these materials show that there is a general problem of gang violence in El Salvador, we do not believe they can override the evidence in this case that police conducted a thorough investigation of Moncho’s criminal acts, and apparently forced him into hiding as a result. Substantial evidence on the record as a whole supports the conclusion that the government responded to the report of Moncho’s criminal activity, and acted upon the information that Menjivar and other witnesses provided. We deem the news articles regarding gang activity too general to dictate a conclusion that the Moncho’s specific acts directed toward Menjivar were persecution by the government. This case is unlike Mashiri v. Ashcroft, 383 F.3d 1112 (9th Cir.2004), cited by Men-jivar, in which police “conducted very limited investigation, if any,” and told the aliens that they “better try to take care of [themselves].” Id. at 1121 n. 5 (alteration in original). Therefore, we do not believe that a reasonable factfinder was compelled to conclude that the government of El Salvador was “unable or unwilling” to control Moncho, such that his criminal activity must be attributed to the government, and the decision to deny asylum was thus not contrary to law or an abuse of discretion. See 8 U.S.C. § 1252(b)(4)(D). It follows from our conclusion on the asylum claim that substantial evidence also supports the IJ’s decision denying withholding of removal. See Ismail v. Ashcroft, 396 F.3d 970, 975 (8th Cir.2005). We also conclude that the IJ’s decision to deny Menjivar’s claim for relief under the Convention Against Torture was supported by substantial evidence. See Mompongo v. Gonzales, 406 F.3d 512, 514 (8th Cir.2005) (standard of review). Under the Convention, Menjivar must demonstrate that it is more likely than not that she would be subjected to torture if returned to El Salvador, 8 C.F.R. § 208.16(c)(2), and that such torture would be inflicted “with the consent or acquiescence of a public official.” 8 C.F.R. § 208.18(a)(1). “Acquiescence” at least requires prior awareness of the torture and a breach of a legal responsibility to intervene. 8 C.F.R. § 208.18(a)(7); Lopez-Soto v." }, { "docid": "22342985", "title": "", "text": "establish that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2); see also Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th Cir.2005). Torture is “an extreme form of cruel and inhuman treatment,” 8 C.F.R. § 208.18(a)(2), “that either (1) is not lawfully sanctioned by that country or (2) is lawfully sanctioned by that country, but defeats the object and purpose of CAT,” Nuru, 404 F.3d at 1221. In addition, the torture must be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Zheng v. Ashcroft, 332 F.3d 1186, 1188 (9th Cir.2003) (quoting 8 C.F.R. § 208.18(a)(1)) (emphasis and internal quotation marks omitted). “Thus relief under the Convention Against Torture requires a two part analysis — first, is it more likely than not that the alien will be tortured upon return to his homeland; and second, is there sufficient state action involved in that torture.” Tamara-Gomez v. Gonzales, 447 F.3d 343, 351 (5th Cir.2006). In addressing the state-action prong of her CAT claim, Garcia-Milian points to her testimony that the police were unwilling to investigate the attack by the masked men which occurred before she left the country, implicitly arguing that because the police previously acquiesced in torture, the police are likely to acquiesce in future instances of torture. See Reyes-Sanchez v. Atty. Gen., 369 F.3d 1239, 1242 n. 7 (11th Cir.2004). She has also submitted evidence that the Guatemalan government has been generally ineffective in preventing or investigating violence against women. We must determine whether this evidence compels the conclusion that the Guatemalan government would acquiesce in torture if Garcia-Milian returned to Guatemala. Public officials acquiesce in torture if, “prior to the activity constituting torture,” the officials: (1) have awareness of the activity (or consciously close their eyes to the fact it is going on); and (2) breach their legal responsibility to intervene to prevent the activity because they are unable or unwilling to oppose it. Ornelas-Chavez v." }, { "docid": "10756777", "title": "", "text": "removal. TV. CAT Protection To be eligible for CAT protection, an alien must “establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). In assessing the likelihood of torture, the factfinder may consider evidence of past torture, the alien’s ability to relocate within the country of removal to avoid torture, and human rights violations within the country of removal. § 1208.16(c)(3). “Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ... by or at the instigation of or with the consent or acquiescence of a public official....” § 1208.18(a)(1). Willful blindness to torture constitutes acquiescence. Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 354 (5th Cir.2002). The BIA accepted the IJ’s finding that Ramirez-Mejia would not more likely than not be tortured by or with the consent of the Honduran government if she returned to Honduras. The IJ observed that Ramirez-Mejia, her family, and her brother’s wife had not been tortured in the past; she did not show an inability to relocate to a part of Honduras where her likelihood of harm would be diminished, as her brother’s wife had done; and she did not show acquiescence to violence by the Honduran police, who in fact arrested a gang member and requested that she give a statement after the robbery of her father’s business in 2006. Ramirez-Mejia does not specifically contest these findings. Instead, she emphasizes the country reports discussing gang violence and police corruption in Honduras. She also reiterates her allegations that the police recommended against filing a report after her brother’s murder and responded with indifference when she disclosed the arrested gang member’s threats in 20Q6 and the anonymous notes in 2013. This evidence, she claims, shows that it is more probable than not that she will be tortured if removed to Honduras. Ramirez-Mejia has not demonstrated that no reasonable factfinder could conclude that she did not qualify for CAT protection. See Chen, 470 F.3d at 1134. First, she has" }, { "docid": "22337502", "title": "", "text": "not that he will be tortured based on his race and gang related tattoos and former gang member status upon return to Honduras. See 8 C.F.R. §§ 1208.16-18; Arteaga v. Mukasey, 511 F.3d 940 (9th Cir.2007). The Immigration Judge properly concluded that the expert witness’s claim that the respondent will be tortured was unpersuasive in light of the other evidence, including the State Department report, contained in the record because the respondent’s expert failed to give specific examples to corroborate his opinion; the record does not compel a contrary conclusion. See Dukuly v. Filip, 553 F.3d 1147 (9th [8th] Cir.2009); Shehu v. Gonzales, 443 F.3d 435 (5th Cir.2006). He further properly determined that the evidence does not establish that each event in the chain of events proposed by the respondent is more likely than not to occur. Matter of J-F-F-, 23 I. & N. Dec. 912 (A.G.2006); 8 C.F.R. §§ 1208.16-.18. For example, the evidence does not establish that, as a black, tattooed, ex-gang member, it is more likely than not that the police would become aware of the respondent’s return to Honduras, that upon becoming aware of him, it is more likely than not that the police would detain him, and that it is more likely than not that, once the respondent was detained, they would use physical force against the respondent that would rise to the level of tor-toe. Id. Likewise, the respondent failed to meet his burden of proving that it is more likely than not that a death squad, rival gang members, or any other entity would become aware of his return to Honduras and that it is more likely than not that any of these groups would then torture him. Additionally, the respondent submitted numerous articles which detail that the presence of a tattoo can cause an automatic association with gangs, and that a tattoo or suspected gang affiliation can equate to harsh treatment. However, there is no indication that the respondent could not have his tattoos removed so that he would not be perceived as a gang member upon return to Honduras. Finally, we" }, { "docid": "10756776", "title": "", "text": "those who persecute to obtain information also do so out of hatred for a family, or vice versa. As a result, the evidence that gang members sought information from Ramirez-Mejia about her brother, without more, does not support her claim that the gang intended to persecute her on account of her family. This is particularly true in light of the fact that other members of her family, who have remained in Honduras, have not faced persecution on the basis of their membership in the family. Finally, the fact that the gang sought to extort Ramirez-Mejia’s family is irrelevant for purposes of the persecution analysis, because this court “do[es] not recognize economic extortion as a form of persecution under immigration law....” Castillo-Enriquez v. Holder, 690 F.3d 667, 668 (5th Cir.2012) (citations and quotations omitted). Because Ramirez-Mejia has not demonstrated that no reasonable factfinder could conclude that she was not persecuted on account of her family membership, see Chen, 470 F.3d at 1134, we agree with the BIA’s conclusion that Ramirez-Mejia does not qualify for withholding of removal. TV. CAT Protection To be eligible for CAT protection, an alien must “establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). In assessing the likelihood of torture, the factfinder may consider evidence of past torture, the alien’s ability to relocate within the country of removal to avoid torture, and human rights violations within the country of removal. § 1208.16(c)(3). “Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ... by or at the instigation of or with the consent or acquiescence of a public official....” § 1208.18(a)(1). Willful blindness to torture constitutes acquiescence. Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 354 (5th Cir.2002). The BIA accepted the IJ’s finding that Ramirez-Mejia would not more likely than not be tortured by or with the consent of the Honduran government if she returned to Honduras. The IJ observed that Ramirez-Mejia, her family, and her brother’s wife" } ]

[ { "docid": "13425584", "title": "", "text": "the property into cash which was hold by the trustee, and the relief it prays is not allowance as a general claim or, as a secured claim, for a balance against the general assets; but it sets forth the conversion of the property, upon which it elaims a lien, into money and asks that its debt “be paid and satisfied out of such moneys so in tbe hands of said trustee.” At the time it filed its “claim” the exact amount of the indebtedness was definitely ascertainable. The property had not been sold subject to the lien but free therefrom and the proceeds stood in place of the property and subject to the lien. It was the duty of the bankruptcy court to determine the validity and amount of this debt, to satisfy it from tbe proceeds of the lien property and thus make the balance of such proceeds subject to distribution among general creditors. II. It is contended, also, that .the lien was lost through failure to file the claim within six months from the termination of the lease, as required by the state statute, or within three months, as required by the Bankruptcy Act. This contention was not presented before the referee or in the lower court and does not appear in the assignments of error. Therefore, we do not pass thereon. III. As a part of the rent and, therefore, as included within the protection of the landlord’s lien for rent, the court included' certain general taxes. This action of the court is challenged. If such taxes were a part of the rental such inclusion was proper, otherwise, not.- Whether they were so included depends upon the contract between the parties. McCann v. Evans (3d Cir.) 185 F. 93, 107 C. C. A. 313. That contract is the lease. The lease provides for the payment by the lessee of such taxes “as an additional consideration for the leasing of said premises.” Wo think this language reveals an intention of the parties to treat such taxes as a part of the rental for the property. Mc-Cann v. Evans" } ]

[ { "docid": "20098902", "title": "", "text": "nor to Wayne County tax liens. The proposed distribution approved by the District Court is clearly erroneous and works injustice not only to the appellants but to other claimants as well. This is so for a number of reasons. First, as we stated in our prior opinion, liens are property rights and may not be divested as a matter of procedure. See Britton v. Western Iowa Co., 8 Cir., 9 F.2d 488, 490, 45 A.L.R. 711. All the real estate of the debtor was sold free and clear of all liens and encumbrances, the liens and encumbrances to attach to the proceeds in their proper order of priority. The liens were in existence prior to the sales of the property. They attached to the funds in the hands of the trustees as these funds were received from the sales. This was true of the liens of the Luzerne County taxing authorities and of the City of Wilkes-Barre. It was also true of the claims of the other lien claimants. The special master and the District Judge have disregarded these cogent facts. Oddly enough, the special master has applied the doctrine of res judicata against the appellants in the former appeals, who are substantially the same appellants who appealed in the case at bar, to their disfavor, while simultaneously applying the same doctrine in favor of the liens of the United States and of the Commonwealth of Pennsylvania though they were not appellants in the prior appeals. Second, following the order of January 22, 1940, the District Court upon the application of the appellants in the prior appeals, ordered a stay of all proceedings pending the disposition of the appeals and consequently no distribution was made. By our judgment of September 20, 1940, this court reversed the order of January 22, 1940 in toto. In view of our reversal of the order it follows that there was no-final determination of the rights of the parties by the order of the District Court of January 22, 1940. We had before us an order which dealt with the distribution of the entire estate" }, { "docid": "20098894", "title": "", "text": "now deceased, one of the referees in bankruptcy of the Middle District of Pennsylvania, as a special master. The debtor and bankrupt owned real estate in three counties in Pennsylvania. It possessed a brewery property known as the Reichard and Weaver Brewery and a small lot adjacent to it in Wilkes-Barre in Luzerne County. It had also property in Scranton, in Lackawanna County, known as the E. Robinson plant. It also possessed a small parcel of real estate at Honesdale in Wayne County. It possessed personal property at the Reichard and Weaver Brewery and it also had personal property at the E. Robinson plant'. Pursuant to the order of July 16, 1936 the property of the debtor was sold free and clear of all liens and encumbrances, liens and encumbrances to attach to the proceeds of the sale in their proper order of priority. The appellants in the former appeals, the Luzerne County taxing authorities and the City of Wilkes-Barre had perfected liens for taxes against the properties in Luzerne County prior to July 16, 1936. The City of Scranton and Lackawanna County taxing authorities also had perfected liens for taxes against the real estate in Lackawanna County also before the sale. The record before us in this appeal, as was the case with the record in the last appeals, is chaotic and disordered and we cannot tell whether or not the taxing authorities of Wayne County had likewise perfected tax liens against the debtor’s property in Wayne County, but the briefs in the case at bar seem to indicate that the Wayne County taxing authorities had done so. It appears from the record that the United States had filed liens for taxes in accordance with the terms of the Revenue Act, 53 Stat. 449 as amended 53 Stat. 882, 26 U.S.C.A. Int.Rev.Code, § 3672, and the laws of Pennsylvania, Act of May 1, 1929, P.L. 1215, 74 P.S. Pa. § 141 et seq., prior in time to those filed by the Luzerne County and the Lackawanna County taxing authorities respectively in Luzerne and Lackawanna Coun ties. The United States" }, { "docid": "12587027", "title": "", "text": "Salary Fund and the Referees’ Expense Fund, respectively, the Conference approved a change in the allocation of the additional charges assessed in asset cases under Section 40c (2) so that, effective as to all cases filed on and after January 1, 1948, a sum equal to 1%% of the additional charges assessed will be allocated to each of the funds.” It is under the above statutes and rules that the Referee took action. The lienholder Rizzo relies on that provision of the Report (1947, pp. 41, 42), which states: “Provided, however, that where property is sold or transferred subject to a valid existing mortgage, lien or other encumbrance, the amount of such mortgage, lien or other encumbrance not affected by such sale shall not be included in determining the amount of net proceeds realized.” Under the facts, the quoted provision does not apply for here the sale was made specifically free and clear of liens. Where a lienholder consents to a sale free and clear and irrespective of whether the sale brings less than enough to discharge the lien, the proceeds are chargeable with the costs of the sale and other administrative expenses. Collier on Bankruptcy, 14th Ed., pp. 1606, 1608. And this Circuit has so held. Miners Savings Bank of Pittston v. Joyce, 3 Cir., 97 F.2d 973, 977. The lienholder Rizzo has one further argument. He argues that the payments to the two Funds was error. The point has no substance. The moneys or credits received from the sale of the bankrupt’s real estate free and clear of liens come into the estate as assets and as such they are chargeable with all expenses of administration of the real estate involved. No effort was made to tax the lien creditor with any costs of general administration. Sur Petition of Review of Joseph Rizzo The above petition of review having come on for hearing and argument on February 17, 1949, after a consideration of the record below, the arguments of counsel and the briefs for the parties, it is adjudged that no error was committed by the Referee’s Court" }, { "docid": "20098898", "title": "", "text": "master’s report. The master’s report gave priority of payment to the expenses of administration and to the wage claimants before the tax liens of the Luzerne County taxing authorities and of the City of Wilkes-Barre. These parties as we have stated were the appellants in the prior appeals. We reversed the order of the District Court of January 22, 1940, directed that the tax liens of the Luzerne County taxing authorities and of the City of Wilkes-Barre be given priority of payment over expenses of administration and wage claims insofar as the proceeds of the sale of the Luzerne County real estate was concerned and stated that the Reichard and Weaver Brewery property should bear as its portion of the expenses only the necessary costs of preservation of the property and of its sale. Our order stated “that the order of January 22, 1940 of the said District Court in this cause be, and the same is hereby re versed, and the cause is remanded to the said District Court with directions to proceed in conformity with the opinion of this court.” Our mandate to the District Court followed this order exactly. Following the remand of the cases, the District Court appointed the present special master with the direction to him to proceed to determine the rights of the parties in conformity with our opinion. The present special master in a report filed November 8, 1941, which consists of thirty-six printed pages, reviewed the case and examined the law. His report contains apparent inconsistencies in respect to the facts. We use the word “apparent” advisedly because the special master has not appended to his report schedules which he states are appended and which presumably set up the exact amounts of the lien claims of the respective tax claimants. None the; less the contents of the report are sufficiently clear to show the distribution which he proposes. The report and the proposed distribution were approved by the District Judge on June 19, 1942, without opinion. Seeking to apply the doctrine of res judicata to the facts of the case at bar" }, { "docid": "23275452", "title": "", "text": "will approximate $350,000.00. The determination of the issues of priority under § 724(b) is imperative because such gross proceeds will be insufficient to satisfy all existing secured claims against the subject property and payment of the expenses of administration in full. The Pre-Petition Priority Issue — Secured Claims of Perpetual and Kimmel and the Pre-Petition D.C. Real Estate Tax Lien Real estate taxes, and the incidents relating to the collection of such taxes, are matters traditionally left to local statute. The existence and legal effect of real estate tax liens are controlled by statutory authority and the legislative intent expressed therein. The District of Columbia Code in dealing with the impact of real estate tax assessments, expressly creates a lien on the property that remains a continuing charge against the property. In fact, the D.C.Code Ann., § 47-1312 (1981) expressly provides: [Wjhenever any real estate in the District of Columbia has been, or shall hereafter be, offered for sale for nonpayment of taxes or assessments of any kind whatsoever ... the Mayor of said District may ... petition the Superior Court of the District of Columbia to enforce the lien of said District for taxes or other assessments on the aforesaid property by decreeing a sale thereof; and up to the time of the sale hereinafter provided for such property may be redeemed by the owner or other person having an interest therein by the payment of all taxes or assessments due the District of Columbia upon said property.... In dealing with the effect of a tax lien in the context of a condemnation proceeding the Court of Appeals for the District of Columbia in District of Columbia Redevelopment Land Agency v. Eleven Parcels of Land, 589 F.2d 628 (D.C.Cir.1978), expressly reaffirmed this concept in these words: “[I]t is, of course, settled that general real estate taxes are levied against the property and are interests in rem.... Thus whether such a ‘tax’ on realty takes priority over a private secured interest is resolved by ascertaining, as best we can, the precise legal status of this interest in rem.... Of course," }, { "docid": "20098900", "title": "", "text": "the special master held that since the only ap pellants in the prior appeals were the taxing authorities of the County of Luzerne and the City of Wilkes-Barre and since these appeals went solely to Lhe distribution of the funds received by the trustees from the sale of the Reichard and V/eaver Brewery real estate, the rights of all the parties who were not appellants were fixed and adjudicated by the order of the District Court of January 22, 1940, approving the report and proposed distribution of the first special master. Therefore, concluded the master, since the tax liens of the United States and of the Commonwealth of Pennsylvania had been filed in Luzerne County, the proceeds from the sale of the Luzerne County real estate had to bear and beat alone the payment of the liens of the United States (save for one item of $1,070.52 which was put over by the special master against the sums brought from the sale of the other parcels of real estate and the sales of all personal property) and the payment of the claims of the Commonwealth of Pennsylvania. The result of this ruling is as follows. Of the $18,500 brought by the sale of the Luzerne County real estate, the Luzerne County taxing authorities and the City of Wilkes-Barre would receive against their claims amounting to more than $15,000, payments totalling $2,099.82. The rest of the fund of $18,500 would go to the United States and to the Commonwealth of Pennsylvania, their claims amounting respectively to $12,695.23 and $3,704.95. All of the administration costs were then taxed by the special master against the rest of the funds in the hands of the trustees amounting to $28,718.97. The City of Scranton and the Lackawanna taxing authorities were allowed the sum of $1,307.09 and, as we have already stated, the United States was allowed the sum of $1,070.52, designated in the master’s report as, “Balance of Fund allowed United States of America”. No reference is made in the proposed distribution to the proceeds of the sale of the Honesdale property in. Wayne County," }, { "docid": "20229867", "title": "", "text": "MEMORANDUM OPINION JUDITH K. FITZGERALD, Bankruptcy Judge. The central issue before the court in this § 506 action to determine the secured status of certain tax liens is whether the Debtor may redeem real property that was sold at a sheriffs sale prepetition. Debtor wants to retain the property free and clear of tax liens other than those held by the purchaser at the sale. Defendants Wil-kinsburg School District and Borough of Wilkinsburg contend that the Debtor has no standing to pursue this Adversary. For the reasons which follow, we conclude that the Debtor has standing and may exercise her statutory right of redemption through her chapter 13 plan. Certain facts are undisputed. Debtor is a widow who resides at 1531 Foliage Street in Pittsburgh, Pennsylvania. She is the heir to the real property that is subject to the tax liens. The property is titled in the name of her deceased husband. It was sold at a sheriffs sale in August, 2008, because real estate taxes had been unpaid for many years. GLS Capital, one of the tax claim holders, was the successful purchaser. The sale price was $2,090.62, representing GLS Capital’s costs. The sheriff acknowledged the deed to GLS Capital on September 23, 2008. Debtor filed her chapter 13 bankruptcy on October 20, 2008. She plans to pay GLS Capital $12,623.00 for delinquent real estate taxes and to divest the other taxes as unsupported by value in the collateral. Whether she can do so, however, depends on the value of the property. Debtor obtained an appraisal in November of 2008 that determined the fair market value of the property to be $10,000. The Wilkinsburg taxing authorities do not agree with that value, contending that because the tax assessment roll and Debtor’s bankruptcy schedules list the fair market value at $28,500, she is estopped from asserting a different value. The value of the real estate itself is not before the court at this time. The court is of the view that, absent agreement of the parties to the value, an evidentiary hearing will be needed to determine the matter. Courts" }, { "docid": "23066479", "title": "", "text": "October 1, 1965, the motel was sold as a going concern to the highest bidder, the bondholders under the first lien deed of trust. The real estate alone brought $75,000.00. No mention was made of the status of delinquent real estate taxes against the property at the time of the sale, nor had any mention previously been made. Sometime after the sale and after the trustee was no longer possessed of any proceeds with which to satisfy them, it developed that real estate taxes in the amount of $2,303.18 were delinquent against the property. The Treasurer of Botetourt County then filed a proof of claim in the bankruptcy proceeding requesting the payment of the taxes as a priority claim. Petitioners, who as purchasers are held to be liable under Virginia Code § 58-762 for delinquent taxes, urged that the taxes must be paid as a priority claim from the general estate. Although there remained in the hands of the trustee in bankruptcy a fund, which emanated from the sale of the personal property, sufficient to cover the amount of delinquent taxes the trustee took the position that he was not liable for the payment of the delinquent real estate taxes and refused to pay them. His contention is that the taxes constituted a first lien on the abandoned real estate and should have been paid by the foreclosure trustee from the proceeds of the sale under the deed of trust. The referee in bankruptcy, the Honorable J. T. Engleby, Jr., held that as between the bankrupt estate and the fund created by the sale of the real estate, the delinquent taxes could be satisfied only from the latter. Petitioners appeal from this determination. I conclude that the referee was correct and, therefore, affirm. Counsel for the petitioners have referred the court to § 64(a) (4) of the Bankruptcy Act which provides that taxes legally due and owing to the United States or any state or any subdivision thereof shall be entitled to payment in the fourth priority. It is urged upon the court that this section indicates a policy of" }, { "docid": "22018628", "title": "", "text": "items of real and personal property belonging to the bankrupt estate and who shall prepare and file with the court their report thereof. Real and personal property shall, when practicable, be sold subject to the approval of the court. It shall not be sold otherwise than subject to the approval of the court for less than 75 per centum of its appraised value. Whenever a sale of real or personal property of a bankrupt is made by or through an auctioneer employed by the court, receiver, or trustee, the auctioneer must be a duly licensed or authorized auctioneer in the place where the sale is to be conducted.” A general duty of a trustee or receiver is to reduce the bankrupt’s estate to money. See Section 47A of the Bankruptcy Act (11 U.S.C. § 75a). “The power of bankruptcy courts to sell the bankrupt’s assets extends also to encumbered property. [I]t is well settled that bankruptcy courts may, if administration interests so require, sell property of bankrupt estates free of all claims, liens and encumbrances, including tax liens. The court does not require consent on the part of the lienholder and may sell the property despite his objection thereto.” 4A Collier on Bankruptcy ¶ 70.97, pp. 1131-1135. The Court concludes the bankruptcy court had possession of the property, and it therefore had authority to order the sale of that property free and clear of claims and liens. As indicated by Rule 606 of the Bankruptcy Rules, in order to sell property free of any liens or other encumbrances, the trustee must file a complaint pursuant to Part VII of the rules, which was done in the present case. An answer was filed objecting to the sale. The Court concludes the procedural requirements of Part VII were met. The appellant’s claim to the property has been transferred to the proceeds of the sale. Insufficiency of Process Attached to the Trustee’s complaint was a list of the property, which list was designated Exhibit A. The complaint and the exhibit were mailed to the appellant the same day, but were mailed separately. The" }, { "docid": "15057066", "title": "", "text": "sub. c, does justify the conclusion that “taxes” as used in section 64, sub. a, was not meant to include tax liens. The result is, that under the present Bankruptcy Act, tax liens on real property, perfected as valid statutory liens in accordance with state law, are entitled to payment in full, ahead of the priorities set out in section 64, sub. a, out of the proceeds of sale of the property against which the taxes are liens, diminished only by the actual expenses of preserving the property on which the taxes are liens, and by the administrative expenses directly applicable to the sale of such real property. Luzerne County, Luzerne County Institution District, and Central Poor District of Luzerne County assert tax liens of $6,141.27 against the property of the debtor in Luzerne County, and the City of Wilkes-Barre asserts tax liens against the property of the debtor in the City of Wilkes-Barre, in the sum of $8,808.23, or a portion thereof. They seek payment of these sums out of the proceeds of the sale of one property of the debtor, namely, the Reichard and Weaver plant located on Water Street in Wilkes-Barre, Luzerne County, Pennsylvania. Said real property was sold to Luzerne County for $16,000. The except-ants want practically this whole fund devoted to payment of their liens. They are not entitled to this. The Pennsylvania acts under which they claim tax liens (Act of 1931, May 29, P.L. 280, sec. 4 as amended, 1933, May 22, P.L. 940, sec. 1, 1939, June 20, P.L. 498, sec. 2, 72 P.S. § 5971d; and Act of 1923, May 16, P.L. 207, sec. 2, 53 P.S. § 2022) specifically state the taxes therein concerned shall be first liens upon the property liable for the payment thereof. In other words, the above fund of $16,000 would be liable only for the taxes assessed against the Reichard and Weaver real estate on Water Street in Wilkes-Barre, Pennsylvania, and not for all the taxes assessed against the debtor generally in the city of Wilkes-Barre or in the county of Luzerne. However, even this" }, { "docid": "20098895", "title": "", "text": "1936. The City of Scranton and Lackawanna County taxing authorities also had perfected liens for taxes against the real estate in Lackawanna County also before the sale. The record before us in this appeal, as was the case with the record in the last appeals, is chaotic and disordered and we cannot tell whether or not the taxing authorities of Wayne County had likewise perfected tax liens against the debtor’s property in Wayne County, but the briefs in the case at bar seem to indicate that the Wayne County taxing authorities had done so. It appears from the record that the United States had filed liens for taxes in accordance with the terms of the Revenue Act, 53 Stat. 449 as amended 53 Stat. 882, 26 U.S.C.A. Int.Rev.Code, § 3672, and the laws of Pennsylvania, Act of May 1, 1929, P.L. 1215, 74 P.S. Pa. § 141 et seq., prior in time to those filed by the Luzerne County and the Lackawanna County taxing authorities respectively in Luzerne and Lackawanna Coun ties. The United States had also perfected its liens for taxes in Wayne County. The record likewise shows that the Commonwealth of Pennsylvania had “settled” in accordance with the Pennsylvania statute, Act of June 15, 1911, P.L. 955 § 1, as amended Act of April 12, 1923, P.L. 63 § 1, 72 P.S. Pa. § 3342, certain of its claims for taxes prior to the effecting of the liens for taxes by the United States and the respective county and local authorities. The real estate at Wilkes-Barre in Luzerne County when sold brought $18,481.-50. The real estate consisting of the E. Robinson plant and the personal property in Scranton, Lackawanna County, and the personal property of the Reichard and Weaver Brewery at Wilkes-Barre, were sold under one bulk bid in a sale conducted at Scranton. The bulk bid which was accepted amounted to $39,610. As we have indicated there was no segregation of personal property from real property and no segregation of the personal property at Wilkes-Barre from the personal property at Scranton at the sale. It has subsequently" }, { "docid": "15057067", "title": "", "text": "sale of one property of the debtor, namely, the Reichard and Weaver plant located on Water Street in Wilkes-Barre, Luzerne County, Pennsylvania. Said real property was sold to Luzerne County for $16,000. The except-ants want practically this whole fund devoted to payment of their liens. They are not entitled to this. The Pennsylvania acts under which they claim tax liens (Act of 1931, May 29, P.L. 280, sec. 4 as amended, 1933, May 22, P.L. 940, sec. 1, 1939, June 20, P.L. 498, sec. 2, 72 P.S. § 5971d; and Act of 1923, May 16, P.L. 207, sec. 2, 53 P.S. § 2022) specifically state the taxes therein concerned shall be first liens upon the property liable for the payment thereof. In other words, the above fund of $16,000 would be liable only for the taxes assessed against the Reichard and Weaver real estate on Water Street in Wilkes-Barre, Pennsylvania, and not for all the taxes assessed against the debtor generally in the city of Wilkes-Barre or in the county of Luzerne. However, even this pro rata amount will not be paid to exceptants in the present proceeding. We have the uncontradicted statement of the special master that the tax assessments can not be broken down to determine what proportion of taxes are against which properties of the debtor, or what portions are assessed against the real estate, and what portions, if any, are assessed against the personal estate of the debtor. Therefore, the special master has treated them as taxes against the entire estate rather than against specific properties, and rightfully so. Where the Bankruptcy Act gives to state tax liens a priority in payment, the burden is on the taxing authorities to prove their liens as to amounts against specific properties, if, as here, they wish to assert their lien against the proceeds derived from sale of that property. If they are unable to prove in this manner, their liens are then properly paid as tax claims under section 64, sub. a, subsequent to payment of administration expenses and wage claims. Furthermore, in the complicated administration of this" }, { "docid": "15057069", "title": "", "text": "estate, there has been such acquiescence by the taxing authorities in the procedure followed, that even if they could prove the amounts of their tax liens against specific properties, they could not object to first subjecting the. proceeds of sale to all general administration expenses, whether or not those expenses related to the preservation of the particular property against which tax liens are claimed. For example, one sale consisted of the personal property in the Reichard and Weaver plant in Wilkes-Barre and the real and personal property in the E. Robinson plant at Scranton, for a lump sum of $39,610. No exception was ever taken to the final order of confirmation of that sale. From such situation it is impossible to tell what proportion of administration expensés went to preserve any given portion of the debtor’s estate. Ordinarily the acquiescence of a lienholder in the administration of the lien debtor’s estate in bankruptcy will not injure or lessen the lienholder’s rights, but, where the lien-holder acquiesces in a course of administration which makes impossible the calculation of his rights as he asserts them, he will then be deemed to have waived such rights, and as here, general administration expenses will be deducted first from the proceeds of sale, ahead of payment to the lienholder. For the above reasons, it is therefore ordered that the report and audit of the special master upon the report and account of the trustees in the above case be, and the same is hereby confirmed, and all exceptions to the report of the special master be, and the same are hereby dismissed. It is further ordered that the trustees shall forthwith proceed with distribution of the funds in their hands, in accordance with the report of the special master." }, { "docid": "15057068", "title": "", "text": "pro rata amount will not be paid to exceptants in the present proceeding. We have the uncontradicted statement of the special master that the tax assessments can not be broken down to determine what proportion of taxes are against which properties of the debtor, or what portions are assessed against the real estate, and what portions, if any, are assessed against the personal estate of the debtor. Therefore, the special master has treated them as taxes against the entire estate rather than against specific properties, and rightfully so. Where the Bankruptcy Act gives to state tax liens a priority in payment, the burden is on the taxing authorities to prove their liens as to amounts against specific properties, if, as here, they wish to assert their lien against the proceeds derived from sale of that property. If they are unable to prove in this manner, their liens are then properly paid as tax claims under section 64, sub. a, subsequent to payment of administration expenses and wage claims. Furthermore, in the complicated administration of this estate, there has been such acquiescence by the taxing authorities in the procedure followed, that even if they could prove the amounts of their tax liens against specific properties, they could not object to first subjecting the. proceeds of sale to all general administration expenses, whether or not those expenses related to the preservation of the particular property against which tax liens are claimed. For example, one sale consisted of the personal property in the Reichard and Weaver plant in Wilkes-Barre and the real and personal property in the E. Robinson plant at Scranton, for a lump sum of $39,610. No exception was ever taken to the final order of confirmation of that sale. From such situation it is impossible to tell what proportion of administration expensés went to preserve any given portion of the debtor’s estate. Ordinarily the acquiescence of a lienholder in the administration of the lien debtor’s estate in bankruptcy will not injure or lessen the lienholder’s rights, but, where the lien-holder acquiesces in a course of administration which makes impossible the" }, { "docid": "20098901", "title": "", "text": "property) and the payment of the claims of the Commonwealth of Pennsylvania. The result of this ruling is as follows. Of the $18,500 brought by the sale of the Luzerne County real estate, the Luzerne County taxing authorities and the City of Wilkes-Barre would receive against their claims amounting to more than $15,000, payments totalling $2,099.82. The rest of the fund of $18,500 would go to the United States and to the Commonwealth of Pennsylvania, their claims amounting respectively to $12,695.23 and $3,704.95. All of the administration costs were then taxed by the special master against the rest of the funds in the hands of the trustees amounting to $28,718.97. The City of Scranton and the Lackawanna taxing authorities were allowed the sum of $1,307.09 and, as we have already stated, the United States was allowed the sum of $1,070.52, designated in the master’s report as, “Balance of Fund allowed United States of America”. No reference is made in the proposed distribution to the proceeds of the sale of the Honesdale property in. Wayne County, nor to Wayne County tax liens. The proposed distribution approved by the District Court is clearly erroneous and works injustice not only to the appellants but to other claimants as well. This is so for a number of reasons. First, as we stated in our prior opinion, liens are property rights and may not be divested as a matter of procedure. See Britton v. Western Iowa Co., 8 Cir., 9 F.2d 488, 490, 45 A.L.R. 711. All the real estate of the debtor was sold free and clear of all liens and encumbrances, the liens and encumbrances to attach to the proceeds in their proper order of priority. The liens were in existence prior to the sales of the property. They attached to the funds in the hands of the trustees as these funds were received from the sales. This was true of the liens of the Luzerne County taxing authorities and of the City of Wilkes-Barre. It was also true of the claims of the other lien claimants. The special master and the District" }, { "docid": "20098907", "title": "", "text": "Judge is directed to dispense with the services of any special master and himself to marshal the assets of the debtor equitably and in accordance with law and to make distribution of those assets to those who are entitled thereto Seven years is too long a time to effect payment of creditors in a case such as that at bar. There must be an end to this litigation. Act of June 24, 1937, P.L. 2017, 62 P.S.Pa. § 2201 et seq. Pursuant to the Act of June 15, 1911, P.L. 955, 72 P.S.Pa. § 3342, as amended Act of April 9, 1929, P.L. 343, 72 P.S.Pa. § 1401 taxes due the Commonwealth constitute a lien upon both the realty and personalty of the debtor. See Commonwealth v. Central Realty Co., 338 Pa. 172, 12 A.2d 312. Similarly federal law provides that taxes due the United States shall be a lien upon all property and rights to property, whether real or personal, belonging to the debtor. 53 Stat. 448, 26 U.S.C.A. Int.Rev.Code, § 3670. But see Section 67, the Ohandler Act, 52 Stat. 875, as amended, 54 Stat. 835, 11 U.S.C.A. § 107 postponing in payment liens on personal property for taxes owing the United States when such liens are not accompanied by possession. Actually the total price seems to have been $18,500, the difference in amount being the cost of documentary stamps which were paid by the estate. The actual amount brought by the Reichard and Weaver property is not clear from the record. It was referred to in the prior appeal as having been the sum of $16,-000. The present special master refers to the amount in his report variously as $16,000 and as $16,500. For the purposes of this appeal, however, the amount is immaterial. The total sum in the hands of the trustees as of the date of the present special master's report was $47,218.97. As we have indicated, the master arbitrarily-divided this into two parts: one in the sum of $18,500 representing the proceeds of the sale of the Luzerne County real estate; the other, in" }, { "docid": "20098893", "title": "", "text": "BIGGS, Circuit Judge. The appellants in the prior appeals, at Nos. 7329 and 7373 respectively, are again the appellants in the case at bar except for the fact that Luzerne County Institution-District has succeeded to the rights of Central Poor District. A brief recapitulation of the facts out of which all these appeals grow must be made in this opinion. See, also, the previous opinion of this court in 114 F.2d at page 1010. On December 18, 1934 a petition for reorganization of Pennsylvania Central Brewing Company was filed in the court below pursuant to the provisions of Section 77B of the Bankruptcy Act, 48 Stat. 911, 11 U.S.C.A. § 207. An attempt was made to operate the business of the debtor, but no reorganization being possible, on July 16, 1936 pursuant to a rule to show cause issued on January 6, 1936, an order dated July 11, 1936 was entered directing liquidation of the estate pursuant to the provisions of Section 77B of the Bankruptcy Act. The matter was referred to David Rosenthal, Esquire, now deceased, one of the referees in bankruptcy of the Middle District of Pennsylvania, as a special master. The debtor and bankrupt owned real estate in three counties in Pennsylvania. It possessed a brewery property known as the Reichard and Weaver Brewery and a small lot adjacent to it in Wilkes-Barre in Luzerne County. It had also property in Scranton, in Lackawanna County, known as the E. Robinson plant. It also possessed a small parcel of real estate at Honesdale in Wayne County. It possessed personal property at the Reichard and Weaver Brewery and it also had personal property at the E. Robinson plant'. Pursuant to the order of July 16, 1936 the property of the debtor was sold free and clear of all liens and encumbrances, liens and encumbrances to attach to the proceeds of the sale in their proper order of priority. The appellants in the former appeals, the Luzerne County taxing authorities and the City of Wilkes-Barre had perfected liens for taxes against the properties in Luzerne County prior to July 16," }, { "docid": "20098896", "title": "", "text": "had also perfected its liens for taxes in Wayne County. The record likewise shows that the Commonwealth of Pennsylvania had “settled” in accordance with the Pennsylvania statute, Act of June 15, 1911, P.L. 955 § 1, as amended Act of April 12, 1923, P.L. 63 § 1, 72 P.S. Pa. § 3342, certain of its claims for taxes prior to the effecting of the liens for taxes by the United States and the respective county and local authorities. The real estate at Wilkes-Barre in Luzerne County when sold brought $18,481.-50. The real estate consisting of the E. Robinson plant and the personal property in Scranton, Lackawanna County, and the personal property of the Reichard and Weaver Brewery at Wilkes-Barre, were sold under one bulk bid in a sale conducted at Scranton. The bulk bid which was accepted amounted to $39,610. As we have indicated there was no segregation of personal property from real property and no segregation of the personal property at Wilkes-Barre from the personal property at Scranton at the sale. It has subsequently been stipulated that the personal property at the Reichard and Weaver Brewery brought $5,000 and it has likewise been agreed that the personal property of the E. Robinson plant in Scranton brought $14,-500. It has also been stipulated that the cost of preservation and sale of the Reichard and Weaver Brewery, apparently with the adjacent lot which constituted the second piece of real estate in Wilkes-Barre, was $2,500. The sum of $15,471.58 was received by the trustees by way of rent and the sale of miscellaneous items including beer brought $14,456.14. It is not stipulated and the record does not show where these miscellaneous items were situated. There were and are also expenses of administration consisting largely of fees of the trustees and their counsel and of the fees of the special masters. There were also wage claims. The late special master filed a report which contained a proposed distribution which was approved by the court below on June 22, 1940. The court’s order directed the trustees to distribute the assets in accordance with the" }, { "docid": "20098899", "title": "", "text": "conformity with the opinion of this court.” Our mandate to the District Court followed this order exactly. Following the remand of the cases, the District Court appointed the present special master with the direction to him to proceed to determine the rights of the parties in conformity with our opinion. The present special master in a report filed November 8, 1941, which consists of thirty-six printed pages, reviewed the case and examined the law. His report contains apparent inconsistencies in respect to the facts. We use the word “apparent” advisedly because the special master has not appended to his report schedules which he states are appended and which presumably set up the exact amounts of the lien claims of the respective tax claimants. None the; less the contents of the report are sufficiently clear to show the distribution which he proposes. The report and the proposed distribution were approved by the District Judge on June 19, 1942, without opinion. Seeking to apply the doctrine of res judicata to the facts of the case at bar the special master held that since the only ap pellants in the prior appeals were the taxing authorities of the County of Luzerne and the City of Wilkes-Barre and since these appeals went solely to Lhe distribution of the funds received by the trustees from the sale of the Reichard and V/eaver Brewery real estate, the rights of all the parties who were not appellants were fixed and adjudicated by the order of the District Court of January 22, 1940, approving the report and proposed distribution of the first special master. Therefore, concluded the master, since the tax liens of the United States and of the Commonwealth of Pennsylvania had been filed in Luzerne County, the proceeds from the sale of the Luzerne County real estate had to bear and beat alone the payment of the liens of the United States (save for one item of $1,070.52 which was put over by the special master against the sums brought from the sale of the other parcels of real estate and the sales of all personal" }, { "docid": "20098897", "title": "", "text": "been stipulated that the personal property at the Reichard and Weaver Brewery brought $5,000 and it has likewise been agreed that the personal property of the E. Robinson plant in Scranton brought $14,-500. It has also been stipulated that the cost of preservation and sale of the Reichard and Weaver Brewery, apparently with the adjacent lot which constituted the second piece of real estate in Wilkes-Barre, was $2,500. The sum of $15,471.58 was received by the trustees by way of rent and the sale of miscellaneous items including beer brought $14,456.14. It is not stipulated and the record does not show where these miscellaneous items were situated. There were and are also expenses of administration consisting largely of fees of the trustees and their counsel and of the fees of the special masters. There were also wage claims. The late special master filed a report which contained a proposed distribution which was approved by the court below on June 22, 1940. The court’s order directed the trustees to distribute the assets in accordance with the master’s report. The master’s report gave priority of payment to the expenses of administration and to the wage claimants before the tax liens of the Luzerne County taxing authorities and of the City of Wilkes-Barre. These parties as we have stated were the appellants in the prior appeals. We reversed the order of the District Court of January 22, 1940, directed that the tax liens of the Luzerne County taxing authorities and of the City of Wilkes-Barre be given priority of payment over expenses of administration and wage claims insofar as the proceeds of the sale of the Luzerne County real estate was concerned and stated that the Reichard and Weaver Brewery property should bear as its portion of the expenses only the necessary costs of preservation of the property and of its sale. Our order stated “that the order of January 22, 1940 of the said District Court in this cause be, and the same is hereby re versed, and the cause is remanded to the said District Court with directions to proceed in" } ]

[ { "docid": "22664597", "title": "", "text": "(2d Cir.2003)). When the BIA issues an opinion, “the opinion becomes the basis for judicial review of the decision of which the alien is complaining.” Niam v. Ashcroft, 354 F.3d 652, 655 (7th Cir.2004) (citing INS v. Ventura, 537 U.S. 12, 15, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam)). Where the BIA adopts the decision of the IJ and merely supplements the IJ’s decision, however, we review the decision of the IJ as supplemented by the BIA. Id. at 655-66; see also Secaida-Rosales, 331 F.3d at 305 (holding that we review the decision of the IJ directly where the BIA “summarily affirm[s]” and “adopt[s]” an IJ’s decision); Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003) (holding that “only if the BIA expressly adopts or defers to a finding of the IJ, will we review the decision of the IJ”). Here, the BIA did not adopt the decision of the IJ to any extent, nor is the BIA’s per curiam opinion merely supplemental. Moreover, the BIA indicated explicitly that it was deciding the case on the assumption, contrary to the IJ’s finding, that Chen’s testimony was credible. Accordingly, we review the decision of the BIA. See Yahong Zheng v. Gonzales, 409 F.3d 804, 809 (7th Cir.2005) (reviewing decision of the BIA in similar circumstances). In this posture, we may not rest our holding on the IJ’s credibility findings, because the BIA did not affirm and adopt those findings. See Jin Yu Lin v. DOJ, 413 F.3d 188, 191 n.4 (2d Cir.2005) (“Because the BIA did not affirm [the IJ’s alternative holding that the petitioner was ineligible for asylum], however, and instead relied on the IJ’s adverse credibility determination, th[e former] aspect of the IJ’s decision does not constitute grounds for vacatur or reversal.”); Kayembe, 334 F.3d at 235 (holding that where the BIA did not adopt or defer to the IJ’s finding on credibility, we “must proceed as if [the petitioner’s] testimony were credible and determine whether the BIA’s decision is supported by substantial evidence in the face of his assumed (but not determined) credibility”); Gonzalez v. INS," } ]

[ { "docid": "22627868", "title": "", "text": "REENA RAGGI, Circuit Judge. Shunfu Li, a native of China who claims to have been persecuted in that country for her practice of Falun Gong, petitions for review of the July 16, 2004 decision of the Board of Immigration Appeals (“BIA”) affirming the April 16, 2003 decision of Immigration Judge (“IJ”) Barbara A. Nelson denying petitioner’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). See In re Shunfu Li, No. [ AXX XXX XXX ] (BIA July 16, 2004), aff'g In re Shunfu Li, No. [ AXX XXX XXX ] (Immig.Ct.N.Y.City, Apr. 16, 2003). Petitioner submits that, to the extent the agency determined that her fear of future persecution was not credible, it erred in (1) finding her testimony (a) vague, and (b) inconsistent with website reports of conditions in China; and (2) faulting her failure to authenticate documentary evidence of an outstanding warrant for her arrest in China. Since the agency decided Li’s case, this court has indicated that certain inquiries or findings are necessary preliminary to holding that vague or unauthenticated evidence is not credible or cannot be relied upon. See Ming Shi Xue v. BIA, 439 F.3d 111, 121-22 (2d Cir.2006) (holding finding of testimonial vagueness cannot by itself support adverse credibility determination unless IJ identifies “alleged inconsistencies” and provides applicant with “an opportunity to address them”); Jin Chen v. United States Dep’t of Justice, 426 F.3d 104, 114 (2d Cir.2005) (same); Cao He Lin v. United States Dep’t of Justice, 428 F.3d 391, 404-05 (2d Cir.2005) (holding IJ cannot reject purportedly official documents solely because petitioner failed to authenticate them pursuant to 8 C.F.R. § 287.6). The agency’s decision did not meet the requirements imposed by these cases, and hence was erroneous. Further, because we cannot confidently predict that the agency would reach the same decision absent these errors, we grant Li’s petition, vacate the challenged agency decision, and remand the case to the BIA for further proceedings. 1. Background Shunfu Li entered the United States without documentation in June 2001. In response to removal proceedings initiated by the Immigration" }, { "docid": "22461171", "title": "", "text": "his departure, unwitting Indian authorities continued to visit his family’s home in attempts to detain him. After holding a hearing on the merits of Singh’s applications on March 30, 2001, the IJ made an adverse credibility finding against Singh, denied Singh’s applications for asylum and withholding of removal and granted Singh’s application for voluntary departure. On appeal, the BIA summarily affirmed the IJ’s order. “Where, as here, the BIA has affirmed the IJ’s decision without an opinion, we review the IJ’s decision directly under a standard of ‘substantial evidence.’ ” Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 150 (2d Cir.2006); see also 8 U.S.C. § 1252(b)(4)(B) (providing that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”). We engage in an “ ‘exceedingly narrow’ ” review, Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999) (quoting Carranza-Hernandez v. INS, 12 F.3d 4, 7 (2d Cir.1993)), that involves “looking] to see if the IJ has pro vided ‘specific, cogent’ reasons for the adverse credibility finding and whether those reasons bear a ‘legitimate nexus’ to the finding.” Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir.2004) (quoting Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003)). Our “review is designed to ensure merely that ‘credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation or caprice.’ ” Xiao Ji Chen, 434 F.3d at 157 (quoting Zhou Yun Zhang, 386 F.3d at 74). Although our review of an IJ’s denial of asylum and withholding of removal on credibility grounds is “highly deferential,” Zhou Yi Ni v. U.S. Dep’t of Justice, 424 F.3d 172, 174 (2d Cir.2005); Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir.2005); Jin Hui Gao v. U.S. Att’y Gen., 400 F.3d 963, 964 (2d Cir.2005), “an IJ’s credibility determination will not satisfy the substantial evidence standard when it is based entirely on flawed reasoning, bald speculation, or conjecture.” Xiao Ji Chen, 434 F.3d at 158 (citing Secaida-Rosales, 331 F.3d at 307, 312). When an" }, { "docid": "23329832", "title": "", "text": "asked that the IJ “consider [his] claim in light of [his] new situation.” Id. ¶ 1. On July 22, 1999, the IJ held a hearing on the merits of Xie’s application. In his oral decision denying the application, the IJ noted that the government had stipulated that Xie “might very well be eligible for asylum” as a result of his “well-founded fear” of being persecuted by China’s family planning policies. In re Zhang Jian Xie, No. [ A XX XXX XXX ] (DOJ Immig. Ct. July 22, 1999), Oral Dec. Tr. at 2. But the IJ found that, by assisting in the transportation of women to hospitals where they underwent forced abortions, Xie “had a hand in implementing the policy which we now define as persecution.” Id. at 5. He concluded that Xie could therefore not be deemed a refugee within the meaning of 8 U.S.C. § 1101(a)(42) and was consequently not eligible for asylum. The IJ denied Xie’s application for withholding of removal on the same grounds. Xie appealed to the BIA, which summarily affirmed the IJ’s decision. This petition followed. DISCUSSION I. Standard of Review “It is well-settled that when the BIA summarily affirms an IJ’s decision, we review the decision of the IJ directly.” Shi Liang Lin v. U.S. Dep’t of Justice, 416 F.3d 184, 189 (2d Cir.2005). In reviewing asylum determinations, we defer to the factual findings of ... the IJ if they are supported by substantial evidence. Under this standard, we will not disturb a factual finding if it is supported by reasonable, substantial, and probative evidence in the record when considered as a whole. Indeed, we must uphold an administrative finding of fact unless we conclude that a reasonable adjudicator would be compelled to conclude to the contrary. Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004) (internal quotation marks, citations and footnote omitted); see also 8 U.S.C. § 1252(b)(4)(B) (stating that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”). We review the IJ’s conclusions of law de novo. Guan Shan Liao" }, { "docid": "22663571", "title": "", "text": "JOSÉ A. CABRANES, Circuit Judge. We hereby grant the petition for rehearing of our January 6, 2006 opinion in this case, see Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144 (2d Cir.2006). In the January 6 opinion, under the heading “I. Asylum,” id. at 150-55, we expressed the view that “questions of law,” as the term is used in section 106(a)(1)(A)(iii) of the REAL ID Act of 2005 (“REAL ID Act”), Pub.L. No. 109-13, 119 Stat. 231, 302 (codified at 8 U.S.C. § 1252(a)(2)(D)) — in part defining the scope of our jurisdiction to review removal, deportation, or exclusion orders — refers only to “a narrow category of issues regarding statutory construction.” Xiao Ji Chen, 434 F.3d at 153 (internal quotation marks omitted). Upon consideration of the briefs submitted on this petition for rehearing, we conclude that the term “questions of law” is not so limited. See post at 323-32. We revise substantially our analysis in Part I of the earlier opinion as to what constitutes “questions of law” under section 106(a)(1)(A)(iii) of the REAL ID Act. We hereby vacate our prior opinion and issue this opinion in its place. Petitioner Xiao Ji Chen, a native and citizen of China, seeks review of. a September 25, 2002 order of the Board of Immigration Appeals (“BIA”) affirming the November 17, 2000 decision of Immigration Judge (“IJ”) Adam Opaciuch. In re Xiao Ji Chen, No. [ A XX XXX XXX ] (B.I.A. Sept. 25, 2002), aff'g No. [ A XX XXX XXX ] (Immig. Ct. N.Y. City Nov. 17, 2000) (“IJ Decision”). The IJ found petitioner’s application for asylum, which was filed more than one year after her arrival in the United States, untimely. See 8 U.S.C. § 1158(a)(2)(B). He further found that she had not established either “changed circumstances which materially affect[ed][her] eligibility for asylum” or the existence of “extraordinary circumstances” that would have excused her tardiness in filing her application. Id. § 1158(a)(2)(D). Finally, the IJ denied petitioner’s application for withholding of removal based on his finding that she failed to establish that were she to return" }, { "docid": "22073636", "title": "", "text": "IJ’s decision directly as the final agency determination. Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 156-58 (2d Cir.2006); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). We give “particular deference to the credibility determinations of the IJ.” Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997). Accordingly, “[wjhere the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” Zhou Yun Zhang, 386 F.3d at 74 (internal quotation marks omitted). We hold that the IJ’s adverse credibility determination was supported by substantial evidence. Although the observations emphasized by the IJ do not — when considered in the context of the full record— unambiguously militate in favor of an adverse credibility determination, they also do not strongly suggest, much less “compel,” a contrary conclusion. See Wu Biao Chen v. INS, 344 F.3d 272, 274 (2d Cir.2003); see also Zhou Yun Zhang, 386 F.3d at 73 (“Indeed, we must uphold an administrative finding of fact unless we conclude that a reasonable adjudicator would be compelled to conclude to the contrary.”). The IJ in this case properly considered each of the potential discrepancies in petitioner’s account of his persecution. Moreover, he provided an opportunity for petitioner to clarify or explain his previous statements. Although a reasonable fact-finder could have disagreed with the IJ’s ultimate assessment of petitioner’s responses, we do not find that the IJ’s assessment was based upon “a misstatement of the facts” or upon “bald speculation or caprice.” Zhou Yun Zhang, 386 F.3d at 74 (“[O]ur review is meant to" }, { "docid": "22246149", "title": "", "text": "v. Gonzales, 432 F.3d 391, 394-95 (2d Cir.2005) (per curiam); see also Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). We review the IJ’s factual findings, including credibility determinations, for substantial evidence. See id. at 306-07. Under this standard, the IJ’s factual determinations may be overturned only if “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We have frequently considered how substantial the evidence must be in order for it to support an adverse credibility determination. In general, we “afford particular deference in applying the substantial evidence standard” to credibility findings, Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004) (internal quotation marks omitted), because “the IJ’s ability to observe the witness’s demeanor places her in the best position to evaluate whether apparent problems in the witness’s testimony suggest a lack of credibility or, rather, can be attributed to an innocent cause such as difficulty understanding the question,” Jin Chen v. U.S. Dep’t of Justice 426 F.3d 104, 113 (2d Cir.2005). But “the fact that the [agency] has relied primarily on credibility grounds in dismissing an asylum application cannot insulate the decision from review.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). For an adverse credibility determination to be upheld, the factfinder must provide “specific, cogent reasons” that “bear a legitimate nexus to the finding,” Surinder Singh v. BIA, 438 F.3d 145, 147 (2d Cir.2006) (per curiam) (internal quotation marks and citation omitted), and that are not based on “flawed reasoning, bald speculation, or conjecture,” Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 158 (2d Cir.2006). II. Diallo’s Inconsistent Statements The IJ found Diallo not to be credible because of “inconsistencies and contradictions” in the statements she made during the asylum application process. Oral Decision at 8. It is well established that inconsistent statements made by the petitioner can constitute substantial evidence supporting an adverse credibility determination. See Zhou Yun Zhang, 386 F.3d at 77-78. Diallo contends, however, that her statements are not actually inconsistent. Pointing to the explanations for the apparent inconsistencies that she gave" }, { "docid": "22396056", "title": "", "text": "concluded that petitioner appeared to have been “testifying from a rehearsed script of events” and that his story appeared to have been “fabricated.” Having determined that petitioner’s evidence could not be credited, the IJ found that petitioner had not met his burden of proof with respect to any of his claims for relief. With respect to petitioner’s asylum claim, the IJ made the further finding that, because petitioner had not demonstrated “by clear and convincing evidence” that he had entered the United States less than one year before filing his asylum application, petitioner’s application for asylum was untimely. In re Shu Wen Sun, No. [ A XX XXX XXX ] (Immig. Ct. Hartford June 9, 2004). Petitioner appealed to the BIA, which affirmed the IJ’s decision without opinion. In re Shu Wen Sun, No. [ A XX XXX XXX ] (B.I.A. Dec. 21, 2005). This petition for review followed. DISCUSSION When the BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. See, e.g., Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). I. Asylum Application The IJ denied petitioner’s asylum application upon finding that (1) the application was untimely and (2) petitioner did not qualify for any exceptions to the statutory filing deadline. We lack jurisdiction to review these determinations. See 8 U.S.C. § 1158(a)(3) (placing agency determinations as to the timeliness of an asylum application beyond judicial review); see also Gui Yin Liu v. INS, 508 F.3d 716, 720 (2d Cir.2007). In addition, while we do have jurisdiction to review “constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D), petitioner has raised no such arguments in his brief. Accordingly, we must dismiss for lack of subject matter jurisdiction the portion of his petition seeking to review the denial of his asylum claim by the IJ and the BIA. See Xiao Ji Chen v. U.S. Dep’t of" }, { "docid": "22643739", "title": "", "text": "was credible, she had not established past persecution or a well-founded fear of future persecution. In a short opinion, the BIA “adopted[ed] and affirm[ed]” the IJ’s decision and added two sentences that agreed with the IJ’s finding that, even if Chen was credible, she had not established a basis for asylum eligibility. Discussion In immigration cases, “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review the agency’s fact-finding under the substantial evidence standard. See, e.g., Cao He Lin v. U.S. DOJ, 428 F.3d 391, 400 (2d Cir. 2005); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004), and where a denial of relief is based on a finding that a petitioner’s application is not credible, our review is “highly deferential.” Zhou Yi Ni v. U.S. DOJ, 424 F.3d 172, 174 (2d Cir.2005). I. The Decision(s) To Be Reviewed The BIA has employed different techniques in affirming IJ decisions, and the varying techniques affect the scope of our review. When the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as the final agency determination. See, e.g., Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005); Yu Sheng Zhang v. U.S. DOJ, 362 F.3d 155, 158 (2d Cir.2004). Similarly, when the BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. See, e.g., Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005); Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). When the BIA agrees with the IJ’s conclusion that an asylum applicant is not credible and emphasizes particular aspects of the IJ’s decisions, we review both the BIA’s and the IJ’s opinions. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394-95 (2d Cir. 2005). When the BIA affirms the IJ’s decision in all respects but one, we review the IJ’s decision as modified by the BIA decision, i.e., “minus the single argument for denying relief that was rejected by the BIA.” Xue Hong" }, { "docid": "22919977", "title": "", "text": "the validity of the credibility ruling against him and the IJ’s finding that his asylum application was frivolous. The case therefore presents two separate questions for review: (1) whether substantial evidence supports the IJ’s adverse credibility ruling, and (2) whether the IJ correctly decided that petitioner’s asylum application was frivolous. The first of these is not uncommon among immigration appeals, and, based on our full review of the record, we find that “the evidence so overwhelmingly supports the IJ’s [adverse credibility] finding that, notwithstanding identified errors, there is no realistic possibility of a different result on remand.” Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 395 (2d Cir.2005); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 161-62 (2d Cir.2006). The second question raises issues with which we deal far less frequently and on which the BIA has, thus far, provided no substantial guidance. Under the circumstances, we conclude that it is appropriate to remand the IJ’s finding of frivolousness so that the BIA may, in the first instance, develop clear standards for how these determinations should be made and evaluated. We discuss each of these two questions in turn. I. Adverse Credibility In cases where the BIA summarily affirms an IJ’s decision without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the reasoning and decision of the IJ directly, treating it as the final agency determination. See Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006). We owe “particular deference” to an IJ’s credibility finding, “mindful that the law must entrust some official with responsibility to hear an applicant’s asylum claim, and the IJ has the unique advantage among all officials involved in the process of having heard directly from the applicant.” Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). Hence, our review of an IJ’s credibility assessment is an “exceedingly narrow inquiry to ensure that the IJ’s conclusions were not reached arbitrarily or capriciously ... [and] that credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation" }, { "docid": "22541042", "title": "", "text": "] (B.I.A. June 12, 2006), ajfg No. [ AXX XXX XXX ] (Immig. Ct. N.Y. City Dec. 20, 2004). Petitioners timely appealed the BIA decisions to this Court. Because the separate appeals involve common issues of law and fact, we consolidate the cases for disposition. We conclude that substantial evidence supports the credibility rulings; however, we vacate the findings of frivolousness and remand the cases in order to give the BIA the opportunity to interpret and apply the relevant statutes and regulations governing frivolousness under the standards the BIA recently set forth in YL- 24 I. & N. Dec. 151. I. Adverse Credibility Determinations In Yang’s case, the BIA adopted and affirmed, then modified, the IJ’s decision. In such circumstances, we review the IJ’s decision minus the ground for denying relief that was rejected by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). Accordingly, we will address Yang’s asylum claim as if it were not barred by the one-year filing deadline, as did the BIA. In cases such as Lin’s where the BIA summarily affirms an IJ’s decision without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the reasoning and decision of the IJ directly, treating it as the final agency determination. See Ming Xia Chen v. BIA, 435 F.3d 141,144 (2d Cir.2006). We owe “particular deference” to an IJ’s credibility finding, “mindful that the law must entrust some official with responsibility to hear an applicant’s asylum claim, and the IJ has the unique advantage among all officials involved in the process of having heard directly from the applicant.” Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004), overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2nd Cir.2007) (en banc). Hence, our review of an IJ’s credibility assessment is an “exceedingly narrow inquiry to ensure that the IJ’s conclusions were not reached arbitrarily or capriciously ... [and] that credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation or caprice.” Id. at" }, { "docid": "22773845", "title": "", "text": "a fine; and (7) the 2002 State Department Report was inconsistent with Yan’s testimony that many individuals from Fujian Province were able to have extra children if they paid a fine. In re Wensheng Yan, No. [ AXX XXX XXX ] (Immig. Ct. Hartford May 8, 2003). The BIA affirmed the IJ’s decision without opinion. In re Wensheng Yan, No. [ AXX XXX XXX ] (B.I.A. Aug. 4, 2004). Yan petitions for review of the BIA’s order. II. Discussion A. Standard of Review Where, as here, the BIA affirms an IJ’s decision without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ’s decision as the final agency determination. See, e.g., Timm v. INS, 411 F.3d 54, 58 (2d Cir.2005); Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 159 (2d Cir.2004). This Court reviews the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004), overruled in part on other grounds, Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007) (en banc). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005). In this case, the alleged flaw relates to the sufficiency of the evidence and the explanation supporting the IJ’s finding that the petitioner’s account of persecution was implausible. This Court generally will not disturb adverse credibility determinations that are based on “specific examples in the record of inconsistent statements ... about matters material to [an applicant’s] claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters.” Zhou Yun Zhang, 386 F.3d at 74 (internal quotation marks omitted). B. Inherently Implausible Testimony It is well settled that, in assessing the credibility of an asylum applicant’s testimony, an IJ is entitled to consider whether the applicant’s" }, { "docid": "22604779", "title": "", "text": "70, 77 (2d Cir.2005); Secaida-Rosales, 331 F.3d at 307. This Court reviews the IJ’s factual findings under the substantial evidence standard; findings of fact are treated as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Zhou Yun Zhang v. U.S. I.N.S., 386 F.3d 66, 73 (2d Cir.2004). An IJ’s factual finding will be affirmed if it is “supported by evidence that is ‘reasonable, substantial, and probative’ when considered in light of the record as a whole.” Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113(2d Cir.2005) (quoting Diallo v. I.N.S., 232 F.3d 279, 287 (2d Cir.2000)). Despite the deference typically afforded IJ and BIA decisions, this Court “require[s] a certain minimum level of analysis from the IJ and BIA opinions denying asylum, and indeed must require such if judicial review is to be meaningful.” Poradisova, 420 F.3d at 77. Where the BIA has affirmed without issuing an opinion, our review is limited “ ‘to the reasoning of the IJ, and we will not search the record independently for a basis to affirm the BIA.’ ” Jin Chen, 426 F.3d at 113(quoting Secaida-Rosales, 331 F.3d at 305); see also Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 400 (2d Cir.2005). “[T]he immigration court must adequately link its decision to the record evidence in a reasoned opinion that properly applies the law....” Ivanishvili, 433 F.3d at 337. This Court retains substantial authority to vacate and remand BIA and IJ decisions that result from flawed reasoning, a sufficiently flawed fact-finding process, or the application of improper legal standards. See Rizal v. Gonzales, 442 F.3d 84, 89 (2d Cir.2006); Cao He Lin, 428 F.3d at 400-01, 406; see also Ivanishvili, 433 F.3d at 337. This Court also will not hesitate to vacate and remand where the BIA or IJ analysis is insufficient to determine whether the correct legal standard was applied. See Beskovic v. Gonzales, 467 F.3d 223, 224 (2d Cir.2006); Mirzoyan v. Gonzales, 457 F.3d 217, 221 (2d Cir.2006) (per curiam). Such defects “are not excused by" }, { "docid": "22246148", "title": "", "text": "decision are actually present in the record; the inconsistencies pertain to the salient points of the respondent’s claims; and the inconsistencies provide a cogent basis for the adverse credibility determination.” In re Diallo, [ AXX XXX XXX ], slip op. at 1 (BIA June 29, 2004). The BIA further stated that “the respondent failed to provide convincing explanations for the discrepant record either during the removal hearings or on appeal.” Id. The BIA therefore adopted and affirmed the decision of the IJ. Diallo then brought this petition for review. She argues that the IJ erred in: (1) ignoring her explanations for the apparent inconsistencies in her story, (2) relying on the written summary of the asylum interview, and (3) requiring corroborative evidence without identifying specific pieces of evidence or showing that they were reasonably available to Diallo. DISCUSSION I. Standard of Review When the BIA issues a brief opinion adopting an IJ’s decision, we review the two decisions together — including “the portions [of the IJ’s decision] not explicitly discussed by the BIA.” Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394-95 (2d Cir.2005) (per curiam); see also Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). We review the IJ’s factual findings, including credibility determinations, for substantial evidence. See id. at 306-07. Under this standard, the IJ’s factual determinations may be overturned only if “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We have frequently considered how substantial the evidence must be in order for it to support an adverse credibility determination. In general, we “afford particular deference in applying the substantial evidence standard” to credibility findings, Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004) (internal quotation marks omitted), because “the IJ’s ability to observe the witness’s demeanor places her in the best position to evaluate whether apparent problems in the witness’s testimony suggest a lack of credibility or, rather, can be attributed to an innocent cause such as difficulty understanding the question,” Jin Chen v. U.S. Dep’t of Justice 426 F.3d 104, 113 (2d Cir.2005). But “the fact that" }, { "docid": "22142346", "title": "", "text": "that she was ever subjected to persecution, abuse, or harassment by any element of the Russian Government.” Because Pavlova failed to demonstrate eligibility for asylum, the IJ found that she also failed to meet the higher standard for withholding of removal. The IJ further concluded that, taking into account Pavlova’s testimony and evidentiary submissions, “there is no basis to believe that [she] has ever been subjected to torture in her home country nor that she would be subjected to torture there upon her return.” The IJ denied voluntary departure, as Pavlova gave no evidence that she could afford to buy a ticket to leave the United States. On December 17, 2002, the BIA summarily affirmed, without opinion, the decision of the IJ. Pavlova filed a motion to reopen, which was also denied. I. Where, as here, the BIA summarily affirms the IJ’s decision we review the decision of the IJ directly. See Secaidar-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). We defer to the IJ’s factual findings so long as they are supported by substantial evidence, see Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004), and we afford “particular deference” in applying the substantial evidence standard to credibility determinations, Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997). At the same time, however, we will ordinarily affirm an IJ only on the basis of the reasons he actually articulated, see Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 400 (2d Cir.2005), and we will vacate the IJ’s decision if he has not applied the law correctly or supported his findings with record evidence, see Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir.2003). In the present case, we find that six of the seven bases the IJ gave for his adverse credibility determination are erroneous. Because we cannot confidently predict that the IJ would reach the same conclusion in the absence of these deficiencies, the IJ’s adverse credibility determination cannot stand. Cf. Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144,160-61 (2d Cir.2006); Cao He Lin, 428 F.3d at" }, { "docid": "23108420", "title": "", "text": "returned to Mauritania. In one respect, however, the BIA seemed to go further than the IJ, noting “that the record indicates that the current situation in Mauritania has improved dramatically, lessening the likelihood of persecution.” Accordingly, the Board dismissed Niang’s appeal. This petition for review of the agency’s denial of Niang’s withholding and CAT claims followed. Discussion Where, as here, the BIA adopts the decision of the IJ, and supplements that decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 275 (2d Cir.2005). 1. Past Persecution A. The Adverse Credibility Finding The petition attacks the IJ’s findings that Niang submitted identity documents that were not genuine, and that he testified untruthfully about them. Finding various errors in the reasoning leading to the IJ’s adverse credibility decision, we vacate and remand that finding. This Court reviews the agency’s factual findings, including its adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Nevertheless, the court will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). An adverse credibility determination must be based on “specific, cogent reasons” that “bear a legitimate nexus” to the finding. Secaidar-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks and citations omitted). Particular deference is given to the trier of fact’s assessment of demeanor. See Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir.2005). To his credit, the IJ expressly stated that he found no fault with Niang’s demeanor. Petitioner’s “manner of speaking” was, in the eyes of the IJ, “totally consistent with somebody who had lived through what he said he did.” Thus, one of the most powerful reasons to defer to an IJ’s adverse credibility finding is absent in this case. See Wensheng Yan v. Mukasey," }, { "docid": "22541041", "title": "", "text": "Yang’s application based on his findings that Yang’s asylum application was time-barred, see 8 U.S.C. § 1158(a)(2)(B), and that Yang lacked credibility. The IJ also concluded that petitioner’s application was frivolous under 8 U.S.C. §§ 1158(d)(4), (6). The decision was affirmed by the BIA on May 10, 2006, “except insofar as [the IJ] found that [Yang] had not established extraordinary circumstances for failing to meet the 1-year deadline for filing an asylum application.” In re Biao Yang, No. [ AXX XXX XXX ] (B.I.A. May 10, 2006), ajfg No. [ AXX XXX XXX ] (Immig. Ct. N.Y. City Jan. 7, 2005). Petitioner Ming Liang Lin, also a native and citizen of the People’s Republic of China, applied for asylum, withholding of removal, and CAT relief in March 2001. In December 2004, IJ Noel Ferris denied Lin’s claims on adverse credibility grounds. The IJ also concluded that petitioner’s application was frivolous. Both of these determinations were affirmed, without opinion, by the BIA on June 12, 2006. In re Ming Liang Lin, No. [ AXX XXX XXX ] (B.I.A. June 12, 2006), ajfg No. [ AXX XXX XXX ] (Immig. Ct. N.Y. City Dec. 20, 2004). Petitioners timely appealed the BIA decisions to this Court. Because the separate appeals involve common issues of law and fact, we consolidate the cases for disposition. We conclude that substantial evidence supports the credibility rulings; however, we vacate the findings of frivolousness and remand the cases in order to give the BIA the opportunity to interpret and apply the relevant statutes and regulations governing frivolousness under the standards the BIA recently set forth in YL- 24 I. & N. Dec. 151. I. Adverse Credibility Determinations In Yang’s case, the BIA adopted and affirmed, then modified, the IJ’s decision. In such circumstances, we review the IJ’s decision minus the ground for denying relief that was rejected by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). Accordingly, we will address Yang’s asylum claim as if it were not barred by the one-year filing deadline, as did the BIA. In" }, { "docid": "12003581", "title": "", "text": "Krasnoperov had not participated in the rapes, the IJ found him to be a persecutor based on actions that he admitted. The IJ also found that Krasnoperov had not met his burden of proof because he failed to submit certain documents and other documents were not authenticated and/or not in conformance with Russian records. Judge Holmes-Simmons also found the evidence insufficient to support Balachova’s claim and noted that changes had occurred in Russia in the thirteen years since both petitioners left. Finally, she denied the petitioners’ CAT claims because they “failed to establish that it’s more likely than not they’d be subject to torture if returned to their native country.” Both petitioners appealed to the BIA, which summarily affirmed the results of the IJ’s opinion. DISCUSSION 1. Standard of Review Because the BIA summarily affirmed the IJ’s decision, see 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as the final agency determination. E.g., Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). However, an adverse credibility determination must be based on “specific, cogent reasons” that “bear a legitimate nexus to the finding.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks omitted). A determination “based on flawed reasoning ... will not satisfy the substantial evidence standard,” and the agency’s use of “an inappropriately stringent standard when evaluating an applicant’s testimony constitutes legal, not factual error.” Id. We will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). However, where despite evident errors, we can confidently predict that the agency would adhere to the same result absent error, we need not remand. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.2006). Finally, de novo" }, { "docid": "22773844", "title": "", "text": "months’ salary, and the August vacation trip to Cuba that cost him 5,000 yuan, which was the equivalent of over six months’ salary; (2) Yan’s behavior&emdash;trav-eling to Thailand ten days after the abortion, when his wife was weak and bleeding, simply because he had paid for the trip in advance&emdash;was “inconsistent with the fact that his wife had a forced abortion”; (3) it was inconsistent with the circumstances (“out of character”) that Yan’s first trip to Cuba in August, which Yan testified was for “travel reasons,” occurred after he had received a letter threatening sterilization and a 10,000-yuan fine; (4) Yan’s asylum application stated that he had gone into hiding after he had received the threatening letter, yet he spent a large amount of time outside the country on trips; (5) Yan’s multiple return trips to China took him through Guangzhou Airport, where his identity would likely be checked; (6) Yan testified that he had no problems with his employer, yet his employer’s dismissal notice was predicated on Yan’s failure to undergo sterilization and pay a fine; and (7) the 2002 State Department Report was inconsistent with Yan’s testimony that many individuals from Fujian Province were able to have extra children if they paid a fine. In re Wensheng Yan, No. [ AXX XXX XXX ] (Immig. Ct. Hartford May 8, 2003). The BIA affirmed the IJ’s decision without opinion. In re Wensheng Yan, No. [ AXX XXX XXX ] (B.I.A. Aug. 4, 2004). Yan petitions for review of the BIA’s order. II. Discussion A. Standard of Review Where, as here, the BIA affirms an IJ’s decision without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ’s decision as the final agency determination. See, e.g., Timm v. INS, 411 F.3d 54, 58 (2d Cir.2005); Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 159 (2d Cir.2004). This Court reviews the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v." }, { "docid": "23115656", "title": "", "text": "B.D. PARKER, JR., Circuit Judge. Petitioner Mahamed Ayenul Islam, a native and citizen of Bangladesh, seeks review of a 34 February 14, 2005, order of the Board of Immigration Appeals (“BIA”) affirming the May 18, 1998, decision of Immigration Judge (“IJ”) Jeffrey S. Chase, which denied Islam’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) on the basis that Islam’s testimony and documents lacked credibility. See In re Mahamed Ayenul Islam, No. [ A XX XXX XXX ] (B.I.A. Feb. 14, 2005), aff'g No. [ A XX XXX XXX ] (Immig. Ct. N.Y. City May 18, 1998). Where, as here, the BIA adopts and affirms the decision of the IJ, and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the factual findings of the BIA and IJ for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). We review de novo the IJ’s determination of mixed questions of law and fact, as well as the IJ’s application of law to facts. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). I. The Asylum Hearing During immigration proceedings, an IJ has the authority to “administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses.” 8 U.S.C. § 1229a(b)(l). Unlike an Article III judge, an IJ is not merely the fact finder and adjudicator, but also has an obligation to establish and develop the record. See Qun Yang v. McElroy, 277 F.3d 158, 162 (2d Cir.2002). At the same time, as a judicial officer, an immigration judge has a responsibility to function as a neutral, impartial arbiter and must be careful to refrain from assuming the role of advocate for either party. See Qun Wang v. Attorney Gen. of the U.S., 423 F.3d 260, 261 (3d Cir.2005). During the course of developing a sound and useful record, an IJ must, when appropriate, question an applicant in order, for example, to probe" }, { "docid": "12003582", "title": "", "text": "the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). However, an adverse credibility determination must be based on “specific, cogent reasons” that “bear a legitimate nexus to the finding.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks omitted). A determination “based on flawed reasoning ... will not satisfy the substantial evidence standard,” and the agency’s use of “an inappropriately stringent standard when evaluating an applicant’s testimony constitutes legal, not factual error.” Id. We will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). However, where despite evident errors, we can confidently predict that the agency would adhere to the same result absent error, we need not remand. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.2006). Finally, de novo review is required for questions of law and the application of law to undisputed fact. E.g., Secaidcir-Rosales, 331 F.3d at 307. II. Balachova The IJ found that Balachova was not credible. This finding was dispositive of all her claims; yet, Balachova did not point out any errors in the IJ’s adverse credibility finding on her appeal to the BIA. Although issue exhaustion is not jurisdictional, it is mandatory. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 121-24 (2d Cir.2007). Thus, we grant the government’s request to dismiss Balachova’s claims for failure to exhaust administrative remedies. III. Krasnoperov A. Credibility The basis of the IJ’s adverse credibility finding for Krasnoperov is very unclear. The only specific factor she cited with reference to credibility was a variance between Krasnoperov’s asylum application and his testimony. While Judge Holmes-Simmons did not identify the inconsistency in her credibility analysis, she had earlier stated that Krasnoperov testified that he had never filed a false report, but that his asylum statement indicated that he had been asked to rob villagers" } ]

[ { "docid": "22664333", "title": "", "text": "Arkansas “second offender” statute, there is no reason to provide petitioner with an evidentiary hearing on his claim of ineffective assistance of counsel. None of his allegations, if proved, would entitle petitioner to relief, as there is nothing in the record to indicate “that [defense] counsel’s representation fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U. S. 668, 687-688 (1984); see also McMann v. Richardson, 397 U. S. 759, 771 (1970). Were it not for the misinformation in the plea statement— had petitioner’s attorney known of a prior conviction and still informed petitioner that he would be eligible for parole after serving one-third of his sentence — petitioner would be entitled to an evidentiary hearing and an opportunity to prove that counsel’s failure to advise of him of the effect of Ark. Stat. Ann. §43-2829B(3) (1977) amounted to ineffective assistance of counsel. The failure of an attorney to inform his client of the relevant law clearly satisfies the first prong of the Strickland analysis adopted by the majority, as such an omission cannot be said to fall within “the wide range of professionally competent assistance” demanded by the Sixth Amendment. Strickland v. Washington, supra, at 690. Moreover, an examination of the record reveals that petitioner alleged sufficient facts to “show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Ante, at 59. In the first two paragraphs of his ha-beas petition, petitioner alleged, in pertinent part, as follows: “I agreed to plead guilty with the understanding that I’d get 35 yrs. for 1st degree murder & 10 years concurrent for theft of property, and that I would only have 1/3 of my sentence to do, less good time. . . . “My lawyer told me that a plea negotiation was binding to both sides and that the Court would impose the sentence agreed to by me and the prosecutor. I did not know that the Court could deviate from the concessions agreed to without informing me, nor that it could say" } ]

[ { "docid": "2682909", "title": "", "text": "trial counsel’s failure to discover the trial court’s alleged sentencing error and subsequent failure to advise petitioner to pursue a direct appeal. Attorney error amounting to constitutionally ineffective assistance of counsel constitutes “cause” for a procedural default. See Coleman v. Thompson, 501 U.S. 722, 754, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). An individual’s Sixth Amendment right to effective counsel “is limited to the first appeal as of right.” See Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). “Although a guilty plea appeal is technically referred to in OMahoma as a ‘cer-tiorari appeal’, OMahoma [courts have] always treated this appeal as an appeal of right.” Randall v. State, 861 P.2d 314, 316 (Okla.Crim.App.1993). Thus, Mr. Hickman was entitled to effective counsel during the time period available for appeal of his conviction. Because the same legal standards govern petitioner’s underlying claim of ineffective assistance of counsel and his closely related burden to show cause for his state law procedural default, we must determine whether petitioner has shown cause concurrently with the merits of his ineffective assistance of counsel claim. II. Petitioner asserts that his Sixth Amendment right to effective assistance of counsel was violated when his trial counsel failed to object to the imposition of an enhanced sentence under Oklahoma’s Habitual Criminal Act. We disagree. “A claim of ineffective assistance of counsel presents a mixed question of law and fact which we review de novo.” Brewer v. Reynolds, 51 F.3d 1519, 1523 (10th Cir.1995). To prevail on this claim, petitioner must show: (1) that his counsel’s performance fell below an objective standard of reasonableness and (2) that the deficient performance was prejudicial to his defense. See Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the first prong of this test, petitioner must overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052; see also Duvall v. Reynolds, 139 F.3d 768, 777 (10th Cir.1998). We review petitioner’s ineffective assistance of counsel claim from the perspective" }, { "docid": "5156220", "title": "", "text": "motion to suppress, or any reason not to file a motion to suppress. Id. at 80:23-81:4, 105:11-106:2. Serrano stated that if he had known about the possibility of suppression, he would not have pled guilty. Id. at 81:5-9. On cross-examination, Serrano admitted that given his flight and his criminal history, his sentence of 151 months imprisonment “could have been a lot worse[.]” Id. at 103:16-17. As Serrano noted on redirect, however, “[z]ero [months] would have been better than 151[.]” Id. at 106:9-10. On July 5, 2011, both parties filed briefs outlining what they believe they proved at the evidentiary hearing. On the same date, Serrano withdrew his claim regarding counsel’s failure to file an appeal, Serrano’s only remaining claim is that counsel was ineffective for failing to move to suppress his confession. III. Legal Standard Section 2255 empowers a court to “vacate, set aside, or correct” a sentence that “was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). If a party is entitled to relief under § 2255(a), “the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” Id. § 2255(b). If a petitioner is sentenced after a guilty plea, he or she may obtain relief under § 2255 if he or she can show that the plea was not knowing and voluntary. Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). A guilty plea by a petitioner who was denied his or her Sixth Amendment right to effective assistance of counsel is not knowing and voluntary — an ineffective assistance of counsel claim can thus serve as the basis for relief under § 2255. Id. at 59, 106 S.Ct. 366. To prevail on an ineffective assistance of counsel claim a petitioner must meet the Strickland standard; specifically, a petitioner must show both deficient performance by counsel and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Surmounting Strickland’s high bar" }, { "docid": "12504936", "title": "", "text": "degree murder charge. Therefore, the prosecutor’s agreement to forego charging Petitioner with murder was not illusory. In case sub judice, Petitioner indicated that he understood the nature of the charge against him and the consequences of entering a nolo contendere plea to the charge of manslaughter. A review of the record demonstrates that Petitioner knowingly and intelligently entered this plea. Petitioner’s first claim is without merit. Ineffective Assistance of Counsel Claim. 1. Standard of Review To show that he was denied the effective assistance of counsel under federal constitutional standards, a petitioner must satisfy a two-prong test. First, the petitioner must demonstrate that, considering all of the circumstances, counsel’s performance was so deficient that the attorney was not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In so doing, the defendant must overcome a strong presumption that counsel’s behavior lies within the wide range of reasonable professional assistance. Id.; O’Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir.1994). In other words, Petitioner must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Second, the petitioner must show that such performance also prejudiced his defense. Id. To demonstrate prejudice, the defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. 2. The individual claims Petitioner first claims that his attorney was ineffective because he allowed Petitioner to disclose his mother’s burial site to the probate court without having resolved whether Petitioner was mentally competent to waive his right against self-incrimination. A defendant is not prejudiced by counsel’s failure to seek a competency examination, absent an actual basis to support a claim of incompetency at the time of the proceeding. See Blanco v. Singletary, 943 F.2d 1477, 1507 (11th Cir.1991); see also Hernandez v. United States, 839 F.Supp. 140, 145 (E.D.N.Y.1993) (finding that in the absence of evidence" }, { "docid": "19488513", "title": "", "text": "shall ... have the Assistance of Counsel for his defence.\" U.S. Const. amend. VI. This does not simply guarantee the mere existence of legal counsel but provides \"the right to effective counsel-which imposes a baseline requirement of competence.\" United States v. Gonzalez-Lopez , 548 U.S. 140, 148, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (emphasis added). The Supreme Court has extended this right to critical pre-trial proceedings, including plea negotiations. Missouri v. Frye , 566 U.S. 134, 140, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). And the Court has made clear that a counsel's erroneous advice to reject a plea offer can establish ineffective assistance, so long as the criminal defendant can satisfy Strickland . Lafler v. Cooper , 566 U.S. 156, 172-74, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). Under Strickland 's two-part framework, a criminal defendant claiming ineffective assistance of counsel during plea negotiations must prove that (1) counsel's performance was deficient, i.e., that \"counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment,\" and (2) the deficient performance actually prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The deficient performance prong is \"measured against an objective standard of reasonableness under prevailing professional norms.\" Rompilla v. Beard , 545 U.S. 374, 380, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (internal quotation marks omitted) (citations omitted). \"To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.\" Frye , 566 U.S. at 147, 132 S.Ct. 1399. The parties agree that the pertinent considerations for whether petitioner received ineffective assistance of counsel all come from the few days between when Zambon advised Logan to plead guilty, and when Terrell eventually convinced him otherwise, resulting in petitioner rejecting the plea agreement with a sentencing cap. The parties agree Zambon provided effective assistance of counsel; Terrell's performance, however, is" }, { "docid": "22286638", "title": "", "text": "foregoing requirements for coram nobis relief, the court implicitly addressed the fundamental-defect requirement when it considered Akinsade’s ineffective assistance claim. To establish a Sixth Amendment claim of ineffective assistance of counsel, the petitioner must satisfy the familiar two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by showing (1) that defense counsel’s performance “fell below an objective standard of reasonableness” measured by “prevailing professional norms,” id. at 688, 104 S.Ct. 2052, and (2) that the “deficient performance prejudiced [his] defense,” id. at 687, 104 S.Ct. 2052. That is, Akinsade must show “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Because this is an objective test, Akinsade “cannot make that showing merely by telling us now that [he] would have gone to trial then if [he] had gotten different advice.” Pilla v. United States, 668 F.3d 368, 373 (6th Cir.2012). Rather, “to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). As noted previously, the district court concluded that Akinsade received deficient legal counsel under Strickland’s first prong, but determined that Akinsade failed to establish the prejudice required by Strickland’s second prong because the district court advised Akinsade during plea proceedings that he “could be deported if the Court accepted his guilty plea to the felony charge” and Akinsade indicated that he wanted to plead guilty even “knowing that his guilty plea could trigger deportation proceedings.” J.A. 87. Thus, the district court refused to vacate Akinsade’s plea and denied the coram nobis petition. III. A. Until Akinsade v. Holder was decided, it had been a fundamental assumption in this case that the embezzlement offense to which Akinsade pled guilty was an aggravated felony — a removable offense —" }, { "docid": "2343476", "title": "", "text": "474 U.S. 52, 56-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); United States v. Nahodil, 36 F.3d 323, 326 (3d Cir.1994). Here, petitioner can show neither ineffective assistance nor prejudice. Petitioner’s counsel negotiated a favorable plea agreement whereby petitioner’s guideline sentencing range was calculated to be 97 to 121 months. Petitioner was sentenced to the low end of that range. Had petitioner proceeded to trial and been convicted of conspiracy to import 5 kilograms or more of cocaine as charged in the indictment, he would have faced a statutory minimum sentence of 10 years. 21 U.S.C. §§ 952(a); 960(a)(l)(B)(ii); 963. Thus, defense counsel negotiated a plea with the government by which petitioner was spared at least 23 additional months of imprisonment and possibly more. It is true that as part of the give and take of negotiations, defense counsel conceded to a three-level increase for petitioner’s role in the offense, but the record indicates that petitioner knowingly and voluntarily agreed to this. Moreover, by accepting the plea agreement the three-level enhancement was offset by a three-level decrease for acceptance of responsibility. In addition, as noted above, petitioner avoided the, very real risk of trial and a mandatory minimum sentence of not less than 10 years upon conviction. Thus the court finds that petitioner’s contention that defense counsel was ineffective in negotiating a guilty plea, or that somehow petitioner was prejudiced thereby, is wholly without merit. Accordingly, petitioner’s original § 2255 motion will be denied. Petitioner’s supplemental § 2255 motion raises the claim set forth at pages 3^4, supra, pursuant to the recent decision of the United States Supreme Court in Blakely v. Washington, supra. Petitioner’s claim assumes that Blakely will be applied to the United States Sentencing Guidelines, that they will be found to be unconstitutional, and that holding will be made retroactive to cases on collateral review. Because the court disagrees in significant respects with those assumptions, petitioner’s supplemental petition also will be denied. In Blakely, the United States Supreme Court vacated a sentence imposed pursuant to the Sentencing Reform Act (SRA) of the state of Washington. The Court" }, { "docid": "5379798", "title": "", "text": "A petitioner alleging ineffective assistance of counsel must show both that counsel’s performance was deficient and that this deficient performance prejudiced the defense so as to render the proceeding unfair and the result unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to show that counsel’s performance was deficient, petitioner must demonstrate that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Id. at 688, 104 S.Ct. 2052. In the guilty plea context, in order to show that counsel’s performance was sufficiently prejudicial, a petitioner must show that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Sparks v. Sowders, 852 F.2d 882, 884 (6th Cir.1988) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)); Ludwig v. United States, 162 F.3d 456, 458 (6th Cir.1998). Petitioner first contends that trial counsel rendered ineffective assistance in representing to him that the government would not object to sentencing at the low end of the guidelines. However, counsel was clearly justified in making this repre sentation since the government explicitly so stated at the plea hearing. Petitioner next argues that he would not have pled guilty had counsel not represented to him that certain real estate would not be forfeited. However, even if counsel’s alleged representation was constitutionally deficient, which the Court does not so find, petitioner has failed to demonstrate that he was prejudiced. As noted above, the Court of Appeals found that petitioner’s comments at the plea hearing indicate that'he realized that the government made no such promise as a term of his plea agreement and that no such promise caused him to change his plea. Petitioner also argues that counsel filed no pre-trial motions for discovery, thereby allegedly failing to conduct an independent investigation of the case. Petitioner contends that, had counsel conducted such discovery, he would have been able to determine whether “a plausible line of defense existed ... or whether to negotiate a plea agreement.”" }, { "docid": "19488514", "title": "", "text": "Amendment,\" and (2) the deficient performance actually prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The deficient performance prong is \"measured against an objective standard of reasonableness under prevailing professional norms.\" Rompilla v. Beard , 545 U.S. 374, 380, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (internal quotation marks omitted) (citations omitted). \"To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.\" Frye , 566 U.S. at 147, 132 S.Ct. 1399. The parties agree that the pertinent considerations for whether petitioner received ineffective assistance of counsel all come from the few days between when Zambon advised Logan to plead guilty, and when Terrell eventually convinced him otherwise, resulting in petitioner rejecting the plea agreement with a sentencing cap. The parties agree Zambon provided effective assistance of counsel; Terrell's performance, however, is a different matter. The district court stated that \"Terrell's shadow representation [of Logan] was certainly 'ineffective' in many senses,\" but concluded that it did not require the conclusion that Logan's right to effective assistance of counsel was violated. We agree that Terrell's services were deficient. Even beyond his hair-trigger advice during the plea-agreement phase, his conduct was continually questionable throughout the proceedings below. Terrell represented other defendants in the case until he was finally precluded from doing so by the district court, due to some compelling conflict-of-interest problems. Furthermore, Terrell was not the attorney of record at the time Zambon negotiated the plea agreement because Terrell delayed filing a notice of appearance for over two months-a delay he chalked up to his busyness with other cases and his need to research the law and issues related to Logan's case. But both below and before this court, petitioner has limited his ineffective assistance claim to Terrell's behavior surrounding the plea offer, so we need not consider these other exceedingly questionable acts. Collectively, then, petitioner received both" }, { "docid": "2343475", "title": "", "text": "the change of plea hearing during the colloquy with the court, and petitioner has raised no new meritorious allegations that his plea otherwise was coerced. Nor has petitioner set forth any allegations that his guilty plea was uncounseled except as alleged in his third claim for relief, which the court likewise finds to be without merit. Petitioner’s third claim for relief asserts that he received ineffective assistance of counsel in violation of his Sixth Amendment right to counsel. In order to prevail on his claim that his counsel rendered constitutionally' ineffective assistance, petitioner must' demonstrate; (1) that counsel’s performance fell below an objective standard of reasonableness; and (2) that the deficient performance actually prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the context of an ineffective assistance of counsel claim relating to guilty pleas, the prejudice prong of the Strickland test can be met by a showing that, but for counsel’s errors, petitioner would have proceeded to trial instead of pleading guilty. Hill v. Lockhart, 474 U.S. 52, 56-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); United States v. Nahodil, 36 F.3d 323, 326 (3d Cir.1994). Here, petitioner can show neither ineffective assistance nor prejudice. Petitioner’s counsel negotiated a favorable plea agreement whereby petitioner’s guideline sentencing range was calculated to be 97 to 121 months. Petitioner was sentenced to the low end of that range. Had petitioner proceeded to trial and been convicted of conspiracy to import 5 kilograms or more of cocaine as charged in the indictment, he would have faced a statutory minimum sentence of 10 years. 21 U.S.C. §§ 952(a); 960(a)(l)(B)(ii); 963. Thus, defense counsel negotiated a plea with the government by which petitioner was spared at least 23 additional months of imprisonment and possibly more. It is true that as part of the give and take of negotiations, defense counsel conceded to a three-level increase for petitioner’s role in the offense, but the record indicates that petitioner knowingly and voluntarily agreed to this. Moreover, by accepting the plea agreement the three-level enhancement was offset by a" }, { "docid": "23608712", "title": "", "text": "by his counsel’s errors. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove constitutionally deficient performance, petitioner must show that his counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687-88. If he can meet this standard, then petitioner must establish prejudice by demonstrating that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. A “reasonable probability” is a “probability sufficient to undermine confidence in the outcome.” Id. The Supreme Court’s two-part standard for analyzing claims of ineffective assistance of counsel, first articulated in Strickland, was clearly established law as of the time Magana brought his state court appeal. Williams, 529 U.S. at 413, 120 S.Ct. 1495. The Strickland analysis also applies to claims of ineffective assistance of counsel involving counsel’s advice offered during the plea process. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). According to the Supreme Court, a petitioner who asserts that his counsel was constitutionally ineffective for encouraging him to plead guilty must prove both that his counsel’s performance was deficient and that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59, 106 S.Ct. 366. Following Lockhart, we have held that a petitioner who claims that his counsel was ineffective for encouraging him to reject a plea bargain and go to trial states a viable Sixth Amendment claim. Turner v. Tennessee, 858 F.2d 1201, 1205 (6th Cir.1988), vacated on other grounds, 492 U.S. 902, 109 S.Ct. 3208, 106 L.Ed.2d 559 (1989), reinstated on other grounds, 940 F.2d 1000, 1002 (6th Cir.1991). Such a petitioner must prove both deficient performance on the part of his counsel and that, but for his counsel’s advice, there is a reasonable probability that he would have pleaded guilty. Turner, 858 F.2d at 1206; see also Paters, 159 F.3d at 1046 (requiring defendant to" }, { "docid": "5149195", "title": "", "text": "allowed him to be sentenced to the indeterminate term of 27 years to life with the possibility of parole. Contrary to petitioner’s assertion that the special circumstance allegation of murder for financial gain could never have been proved because the first premium on the life insurance policy was not paid, the allegation could have been proved and petitioner’s trial attorney was justifiably concerned that it could have been proved. The threat that petitioner could have been sentenced to the death penalty or life in prison without the possibility of parole was real, and that threat was removed under the terms of the plea agreement. 2. Ineffective Assistance of Counsel: Claims of ineffective assistance of counsel are analyzed under the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner bears the burden of establishing both components. Id.; United States v. Quintero-Barraza, 57 F.3d 836, 840 (9th Cir.1995). First, the petitioner must show that counsel’s representation fell “below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. In making this showing, the petitioner must overcome the strong presumption that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S.Ct. at 2066; United States v. Palomba, 31 F.3d 1456, 1460 (9th Cir.1994). Only if counsel’s acts and omissions, examined within the context of all the surrounding circumstances, were outside the wide range of professionally competent assistance, will the petitioner meet this initial burden. Strickland at 690, 104 S.Ct. at 2065-66; Quintero-Barraza, 57 F.3d at 840. If petitioner makes this showing, he must then establish prejudice by showing there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. a. Plea Agreement: The Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Lopez-Nieves v. United States, 917 F.2d 645, 648, (1st Cir.1990). “In the context of guilty pleas, the" }, { "docid": "17184900", "title": "", "text": "have proceeded to trial if one or more of his attorneys had more vigorously investigated the case in preparation for trial. See Shafer, 969 S.W.2d at 732-33 (noting that Shafer indicated he wished to plead guilty because of his conscience, concern for the victims’ families, and the desire “to get it over with” rather than go through lengthy appeals). The Missouri Supreme Court did not address Shafer’s claim of ineffective assistance of counsel. The Supreme Court set forth a two-part test for evaluating ineffective assistance of counsel claims: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is rehable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the first prong, the petitioner must demonstrate that counsel’s performance “fell below an objective standard of reasonableness.” Id. at 687, 104 S.Ct. 2052. To satisfy the second prong, petitioner must demonstrate “a reasonable probability that, but for counsel’s error,” the result would have been different. Id. at 694, 104 S.Ct. 2052. In the context of a guilty plea, the second prong is satisfied only if the defendant shows that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (footnote omitted). Judicial scrutiny of counsel’s performance is highly deferential; thus there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. If he had received effective assistance of counsel, Shafer claims he would not have pleaded guilty and would have insisted on going to trial, or, at the very least, he would not have pleaded" }, { "docid": "5379797", "title": "", "text": "a third term (forfeiture). Hernandez’s comments at the hearing suggest that he realized the difference. Near the end of the hearing, the court asked, “Have any promises, other than what Ms. Rump stated, about a two-level reduction, have any other promises been made to cause you to change your pleas?” Hernandez responded, “Just not — to the low end of the guidelines.” Id. Thus, petitioner may not relitigate this issue in the instant motion. Petitioner’s claim that the government violated its agreement not to object to sentencing at the low end of the guidelines could have been, but was not, raised on direct appeal. To the extent that petitioner argues ineffective assistance of appellate counsel as cause for this default, for the reasons set forth later in the opinion, the Court finds the argument not well taken. Because he has failed to demonstrate cause or actual prejudice, petitioner is barred from asserting this claim in this § 2255 motion. In his second ground for relief, petitioner contends that he received ineffective assistance of trial counsel. A petitioner alleging ineffective assistance of counsel must show both that counsel’s performance was deficient and that this deficient performance prejudiced the defense so as to render the proceeding unfair and the result unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to show that counsel’s performance was deficient, petitioner must demonstrate that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Id. at 688, 104 S.Ct. 2052. In the guilty plea context, in order to show that counsel’s performance was sufficiently prejudicial, a petitioner must show that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Sparks v. Sowders, 852 F.2d 882, 884 (6th Cir.1988) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)); Ludwig v. United States, 162 F.3d 456, 458 (6th Cir.1998). Petitioner first contends that trial counsel rendered ineffective assistance in representing to him that the government would" }, { "docid": "2677207", "title": "", "text": "and voluntarily enter the plea agreement. However, as previously indicated, Nelson argues that he would not have entered the plea agreement if his trial counsel were not constitutionally ineffective. See United States v. Alvarez-Quiroga, 901 F.2d 1433, 1437 (7th Cir.1990) (recognizing that a claim that counsel was ineffective in representing a defendant during the course of a plea agreement can serve to undermine the knowing and voluntary nature of the plea). The seminal case on ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Court stated that in order for a prisoner to demonstrate that counsel’s performance fell below the constitutional standard, the petitioner would have to show that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. A prisoner must also prove that he has been prejudiced by his counsel’s representation by showing “a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. The courts, however, must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 690, 104 S.Ct. 2052. To satisfy Strickland’s prejudice prong in this case, Nelson must demonstrate through objective evidence a reasonable probability that, but for counsel’s purportedly erroneous advice, he would not have entered the guilty plea and would have insisted upon going to trial. United States v. Woolley, 123 F.3d 627, 635 (7th Cir.1997). “It is far from obvious how a petitioner is expected to make such a showing, but it is clear that ‘merely making such an allegation is insufficient.’” United States v. Ryan, 986 F.Supp. 509, 513 (N.D.Ill.1997), citing Key, 806 F.2d at 139; see also McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir.1996) (requiring that the petitioner establish through objective evidence that he would not have accepted the plea). Here, the record is replete with clear and unambiguous statements or admissions by Nelson that the substance in his possession was crack. The Indictment charged him" }, { "docid": "2682910", "title": "", "text": "the merits of his ineffective assistance of counsel claim. II. Petitioner asserts that his Sixth Amendment right to effective assistance of counsel was violated when his trial counsel failed to object to the imposition of an enhanced sentence under Oklahoma’s Habitual Criminal Act. We disagree. “A claim of ineffective assistance of counsel presents a mixed question of law and fact which we review de novo.” Brewer v. Reynolds, 51 F.3d 1519, 1523 (10th Cir.1995). To prevail on this claim, petitioner must show: (1) that his counsel’s performance fell below an objective standard of reasonableness and (2) that the deficient performance was prejudicial to his defense. See Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the first prong of this test, petitioner must overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052; see also Duvall v. Reynolds, 139 F.3d 768, 777 (10th Cir.1998). We review petitioner’s ineffective assistance of counsel claim from the perspective of his counsel at the time he rendered his legal services, not in hindsight. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. In addition, in considering counsel’s performance, we focus on “not what is prudent or appropriate, but only what is constitutionally compelled.” United States v. Cronic, 466 U.S. 648, 665 n. 38, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). To satisfy the second prong, petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Petitioner argues that his counsel's failure to object to his enhanced sentence under Oklahoma’s Habitual Criminal Act amounted to constitutionally deficient performance because the sentence he received exceeded that allowed by Oklahoma law. In particular, petitioner asserts that his counsel should have discovered that his second drug conviction could not trigger an enhanced penalty under the Habitual Criminal Act because this offense, second marijuana possession, is already subject to a specific sentence enhancement provision under Oklahoma’s Uniform" }, { "docid": "12060183", "title": "", "text": "Smith pleaded guilty to violating § 495. The district court sentenced him, as was within its discretion, to the maximum prison term permissible under that statute—ten years. Although prosecuting Smith under § 495 may seem especially harsh, particularly when the maximum sentence under § 510(c) is only one year, our decision in Cavada leaves this court no choice but to conclude that the government has the right to choose under which statute to prosecute a forged endorsement on a Treasury check. We are bound by a previous decision of this court until a majority of our members believes that we should overrule our earlier decision. Consequently, we must conclude that Smith was convicted and sentenced under the correct statute. Ineffective Assistance of Counsel Smith contends that he received ineffective assistance of counsel in violation of the sixth and fourteenth amendments to the United States Constitution. Smith claims that his attorney (1) failed to inform him that he was indicted under the wrong statute; (2) falsely stated that the government had agreed to a sentence of probation in exchange for a guilty plea; (3) falsely stated that a previously dismissed, unrelated state charge would be reinstated if he did not plead guilty; and (4) falsely stated that he faced a possible fifteen-year imprisonment term if he did not plead guilty. Smith also contends that the district court should have held an evidentiary hearing to evaluate his allegations. To obtain habeas corpus relief on the grounds of ineffective assistance of counsel, a petitioner must demonstrate not only that his counsel’s performance was deficient, but also that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To demonstrate deficiency, the petitioner must show that his counsel’s actions “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. To demonstrate prejudice, he must show that a “reasonable probability” exists that, “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. This same two-part standard applies to ineffective" }, { "docid": "9568740", "title": "", "text": "of trial counsel claim for the first time on post-conviction review. See Velarde, 972 F.2d at 827. We do not usually expect lawyers to raise the issue of their own ineffectiveness at trial on appeal. Taglia, 922 F.2d at 418. As for the prejudice requirement, Mr. Barker generally asserts in his habeas petition that his plea was not knowingly and voluntarily made. Specifically, he insists that, because of his lawyer’s bad advice, he misunderstood the government’s method of proving the quantity of drugs in the conspiracy. Under these circumstances, Mr. Barker has alleged adequately prejudice: He would not have pleaded guilty had his lawyer not given him the incorrect advice. See Nevarez-Diaz v. United States, 870 F.2d 417, 423 (7th Cir.1989). B. We must now examine whether this claim of ineffective assistance of counsel has been substantiated adequately. The Sixth Amendment right to counsel entitles a defendant to the effective assistance of counsel. We evaluate whether an attorney’s assistance is constitutionally adequate under the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a petitioner must show that his attorney’s conduct “fell below an objective standard of reasonableness” and “outside the wide range of professionally competent assistance.” Id. at 688, 690, 104 S.Ct. at 2065, 2066. Additionally, the petitioner must demonstrate that, because of these errors, the outcome is unreliable or fundamentally unfair. See Lockhart v. Fretwell, -. U.S. -, -, 113 S.Ct. 838, 841, 122 L.Ed.2d 180 (1993). Because counsel is presumed effective, the petitioner bears a heavy burden to prove that his counsel was ineffective and that his defense was actually prejudiced. United States v. Booker, 981 F.2d 289, 292 (7th Cir.1992). 1. Mr. Barker asserts that his guilty plea was involuntary and that he would not have pleaded guilty had his counsel not been ineffective. Mr. Barker contends that he misunderstood the consequences of his plea because his lawyer misinformed him about the calculation of drug quantities in his sentence determination, and because his lawyer misunderstood the law with respect to career offender status. The district court rejected" }, { "docid": "2343474", "title": "", "text": "two claims for relief are precluded by the long-established rule that “a voluntary and intelligent plea of guilty made by an accused person who has been advised by competent counsel may not be collaterally attacked.” Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984); Lesko v. Lehman, 925 F.2d 1527, 1537 (3d Cir.1991). “Accordingly, when the judgment of conviction becomes final and the offender seeks to reopen the proceedings, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Here, petitioner stipulated in his plea agreement to both the quantity of drugs attributable to him and that he would be subject to the § 3B1.1 enhancement for his role in the offense: He therefore is precluded from challenging those findings in a § 2255 motion absent a showing that his plea was involuntary and/or uncounseled. Petitioner can show neither. A finding of involuntariness effectively is foreclosed by petitioner’s admissions at the change of plea hearing during the colloquy with the court, and petitioner has raised no new meritorious allegations that his plea otherwise was coerced. Nor has petitioner set forth any allegations that his guilty plea was uncounseled except as alleged in his third claim for relief, which the court likewise finds to be without merit. Petitioner’s third claim for relief asserts that he received ineffective assistance of counsel in violation of his Sixth Amendment right to counsel. In order to prevail on his claim that his counsel rendered constitutionally' ineffective assistance, petitioner must' demonstrate; (1) that counsel’s performance fell below an objective standard of reasonableness; and (2) that the deficient performance actually prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the context of an ineffective assistance of counsel claim relating to guilty pleas, the prejudice prong of the Strickland test can be met by a showing that, but for counsel’s errors, petitioner would have proceeded to trial instead of pleading guilty. Hill v. Lockhart," }, { "docid": "20741026", "title": "", "text": "1, 6.) Matos promptly challenged the Government’s effort to deport him. Thus, the issue is whether Matos can demonstrate compelling circumstances warranting issuance of the writ. The Supreme Court emphasized that “[cjontinuation of litigation after final judgment ... should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice.” Fleming, 146 F.3d at 90 (quoting Morgan, 346 U.S. at 511, 74 S.Ct. 247). A violation of a defendant’s Sixth Amendment right to effective assistance of counsel is one such compelling circumstance. See Qiao v. United States, No. 07-CV-3727 (SHS), 2007 WL 4105813, at *4-5 (S.D.N.Y. Nov. 15, 2007). I. Ineffective Assistance of Plea Counsel Matos argues ineffective assistance of counsel because his attorney: (1) failed to advise or erroneously advised him of the potential immigration consequences of his plea, and (2) failed to negotiate a plea that would result in a conviction for a non-aggravated felony offense. To establish ineffective assistance of counsel, Matos must “(1) demonstrate that his counsel’s performance fell below an objective standard of reasonableness in light of prevailing professional norms, and (2) affirmatively prove prejudice arising from counsel’s allegedly defi dent representation.” United States v. Cohen, 427 F.3d 164, 167 (2d Cir.2005) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)) (internal punctuation and citations omitted); Rogers v. United States, No. 07-CV-7179 (WHP), 2012 WL 225805, at *2 (S.D.N.Y. Jan. 11, 2012). The first prong of the Strickland test requires a showing that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The second prong requires that Matos show “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. A. Prejudice A petitioner seeking vacatur of his guilty plea, must demonstrate that there is “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Premo v." }, { "docid": "6301465", "title": "", "text": "P. 22(b). This timely appeal ensued. II. ANALYSIS We begin our analysis with a peek at the legal landscape. Under 28 U.S.C. § 2255, an individual in federal custody may request that the sentencing court vacate, set aside, or correct a sentence imposed in violation of federal law. See Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002). To this extent, section 2255 functions as “a surrogate for the historic writ of habeas corpus.” Id. A claim of ineffective assistance of counsel, rooted in the Sixth Amendment, may be raised by means of a section 2255 motion. See Casiano-Jiménez v. United States, 817 F.3d 816, 819-20 (1st Cir. 2016); United States v. Mala, 7 F.3d 1058, 1062-64 (1st Cir. 1993). To prevail on a claim of ineffective assistance of counsel, a petitioner must “show that counsel’s performance was deficient.” Ouber v. Guarino, 293 F.3d 19, 25 (1st Cir. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In other words, the petitioner must show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the [petitioner] by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The petitioner also must show that he was prejudiced by counsel’s deficient representation. See Ouber, 293 F.3d at 25. A defense attorney in a criminal case has an obligation to keep his client apprised of plea offers made by the government. See Missouri v. Frye, 566 U.S. 133, 132 S.Ct. 1399, 1408, 182 L.Ed.2d 379 (2012). The failure to inform a client of a plea offer ordinarily constitutes ineffective assistance of counsel. See id.; United States v. Rodriguez Rodriguez, 929 F.2d 747, 752 (1st Cir. 1991) (per curiam). To show that prejudice resulted from such substandard performance, the petitioner “must demonstrate a reasonable probability' [that he] would have accepted the earlier plea offer had [he] been afforded effective assistance of counsel” and “that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of" } ]

[ { "docid": "16628134", "title": "", "text": "trial of this case, with the facts of some of the cases above cited, we have been led to the conclusion that the court would not have been justified by the precedents in declaring the ordinance void.” ' Upon- the averments in the affidavit of defence, which in this proceeding must be taken to be true, we can come to no other conclusion than that the ordinance was void because of the unreasonable amount of the license fee provided for therein. It was urged on the argument that this ordinance was a proper police regulation, and that the collection of revenue was not its object; that it was the duty of the borough officials to protect the lives and property of its citizens, and that in the discharge of such duty it had the right to' constantly inspect the poles and wires for the. purpose óf seeing that they were safe. •There is no doubt that, for the purpose mentioned, the borough had the right claimed by its counsel. The averments of the affidavit of defence,-however, show that no such duty has' been discharged or attempted to be discharged by the borough. It has done absolutely nothing to protect the lives or property of its citizens by inspecting the poles and wires of the defendant. In Atlantic &c. Telegraph Co. v. Philadelphia, 190 U. S; 160, it was held that the testimony in a case like this might be such as to compel a decision one way or the other, and the court might then be justified in directing a verdict. We think this is one of those cases. We assume that a tax of this kind ought to be- large enough to cover all expenses of police supervision of .the property and instrumentalities used\" by the company in thé borough, and that it is not bound to furnish such super vision for nothing, but may, in addition to ordinary property taxation, subject the corporation to a charge for the expenses of the supervision. The borough is also not compelled to make its expenditures for these purposes in advance of" } ]

[ { "docid": "4500266", "title": "", "text": "legislature in determining the amount of the inspection fee will not lightly be disturbed. Its determination is prima facie reasonable and the courts will not “enter into any nice calculation as to the difference between cost and collection; nor will they declare the fees to be excessive unless it is made clearly to appear that- they are obviously and largely beyond what is needed to pay for the inspection services rendered.”' Foote & Co. v. Maryland, 232 U. S. 494, 504, and Western Union Telegraph Co. v. New Hope, 187 U. S. 419. ; The findings of fact give the following statement of receipts and expenses under the law' assailed, from and > including the year 1909, in which ibwa's passed, to April 30, 1915, which includes the last day covered by the claim in suit, viz: Year Receipts Expenses Percentage of Receipts Used for Department Expenses 1909 $34,934 $30,288 ' 87% 1910 50,667 40,044 79% 1911 56,852 40,494 , 71% 1912 83,354 39,999 63% 1913 72,656 47,117 65% 1914' 81,565 52,467 64% July 31, 1914, to April 30, 1915, 62,689 46,863 75% This statement of- expenses, however, does not include any charge for offices for the Oil Department, which were in the state capitol, for the services of the state auditor and treasurer in keeping accounts and making collections, for legal counsel, and for services of chemists, or for the Public Examiner’s Department, these, not being susceptible of exact determination. The reduced percentage of expenses to receipts in,several of the years was obviously due to the rapid expansion in the use of gasoline without a corresponding increase in. the expenses'of administration. This percentage, however, was rising in 1915 and doubtless, has increased greatly since, under war conditions. We take judicial notide also of the fact that.in 1915 the inspection fee on oil and gasoline in. tank cars was reduced by the legislature from 10 to 7 cents and in 1917 from 7 to 5 cents.' It. was obviously impossible for the state legislature' to determine accurately in advance either what the receipts from or the cost of inspection would" }, { "docid": "15293395", "title": "", "text": "for the regulation of public utilities generally, irrespective of their special function, does not make out a case of wrong to railroads considered as a separate class or to appellant in particular. Eor the purposes of this case there is no need to inquire whether anything in the Fourteenth Amendment forbids the recognition of a single and all-inclusive class of public service corporations without further subdivision. If the prohibition be assumed, still the burden is on the railroads to satisfy the court that what was contributed by them was more than what was expended for their account, since otherwise the common pot may have been a help and not a hurt. That burden was not discharged. Far from being discharged, there was a disclaimer of any attempt or purpose to discharge it. And so the case must fail. Norfolk & Western Ry. Co. v. North Carolina, 297 U. S. 682, 688, 689, 690. The decision in Foote v. Stanley, 232 U. S. 494, much relied on by appellant, is inapplicable here. That was a case under Article I, § 10, of the Constitution, which provides that “no State shall, without the consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws.” Maryland passed an act for the payment of charges, characterized as inspection fees, upon imports of oysters from neighboring states. The “inspectors” did more than inspect the oysters; they policed the waters of Chesapeake Bay, being thus policemen as well as inspectors. On its face the act provided that a fee of one cent per bushel should be “levied to help pay the salary of the inspectors and the other expenses of the State Fishery Force.” 232 U. S. at 505. In these circumstances the ruling was that in a suit for an injunction brought by the importers the state had the burden of showing that the fee was not an unreasonable one for the service of inspection as distinguished from the other services covered thereby. Imposts upon interstate commerce being generally prohibited, and being," }, { "docid": "22796024", "title": "", "text": "Marsh Co., 2 Pet. 245; Ex parte McNiel, 13 Wall. 236; Pound v. Turck, 95 U. S. 459; Wilson v. McNamee, 102 U. S. 572; Huse v. Glover, 119 U. S. 543; cf. Sands v. Manistee River Improvement Co., 123 U. S. 288; approve the erection of bridges over navigable streams, Gilman v. Philadelphia, 3 Wall. 713; Escanaba Co. v. Chicago, 107 U. S. 678; Cardwell v. American River Bridge Co., 113 U. S. 205; Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1; Lake Shore & M. S. R. Co. v. Ohio, 165 U. S. 365; require payment of fees as an incident to use of harbors, Cooley v. Board of Port Wardens, 12 How. 299; Steamship Co. v. Joliffe, 2 Wall. 450; Anderson v. Pacific Coast S. S. Co., 225 U. S. 187; Clyde Mallory Lines v. Alabama ex rel. State Docks Comm’n, 296 U. S. 261; cf. Mobile County v. Kimball, 102 U. S. 691; control the location of docks, Cummings v. Chicago, 188 U. S. 410; impose wharfage charges, Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. Catlettsburg, 105 U. S. 559; Transportation Co. v. Parkersburg, 107 U. S. 691; Ouachita Packet Co. v. Aiken, 121 U. S. 444; establish inspection and quarantine laws, Turner v. Maryland, 107 U. S. 38; Morgan’s S. S. Co. v. Louisiana Board of Health, 118 U. S. 455; Patapsco Guano Co. v. North Carolina Board of Agriculture, 171 U. S. 345; Rasmussen v. Idaho, 181 U. S. 198; Smith v. St. Louis & S. W. R. Co., 181 U. S. 248; Reid v. Colorado, 187 U. S. 137; New Mexico ex rel. McLean & Co. v. Denver & R. G. R. Co., 203 U. S. 38; Asbell v. Kansas, 209 U. S. 251; Red “C” Oil Mfg. Co. v. Board of Agriculture, 222 U. S. 380; Savage v. Jones, 225 U. S. 501; Pure Oil Co. v. Minnesota, 248 U. S. 158; Mintz v. Baldwin, 289 U. S. 346; cf. Railroad Co. v. Husen, 95 U. S. 465; Minnesota v. Barber, 136 U. S. 313; Brimmer" }, { "docid": "14529437", "title": "", "text": "for the amount of the tax be affixed to' the package in or from which the goods are sold at retail is a burden upon interstate commerce, and therefore void. But, as pointed out above, the interstate commerce in the property which is the subject of the tax has ended, and the stamping is but an incident in the collection of a tax which the stete has the right to collect. While the unpacking, stamping, and repacking undoubtedly involve some trouble and expense, the requirement that the stamps be affixed to the packages in or from which retail sales are made is a reasonable requirement, and one necessary to prevent frauds upon the revenue; and, if it be lawful for the state to collect the tax, we see no reason why it may not require the affixing of the stamps to make the tax effective. The labor and expense involved in unpacking, stamping, and repacking, even including the furnishing of paraffin paper to replace that destroyed in the case of goods so wrapped, is but a minor item compared with the amount of the tax itself. No case has been cited to' sustain the proposition that the requirement as to stamping is void, even though the tax be valid, and we know of none. On the contrary, it would seem clear that, granting the tax itself to be within the taxing power of the state, the state has the power to adopt any reasonable regulation to prevent evasion thereof. Even where goods are actually in interstate commerce, a state, in the exercise of its police power, may subject them to its inspection laws and may require the payment of inspection fees (Patapsco Guano Co. v. North Carolina, 171 U. S. 345, 18 S. Ct. 862, 43 L. Ed. 191; Standard Stock Food Co. v. Wright, 225 U. S. 540, 32 S. Ct. 784, 56 L. Ed. 1197), and may even require that they be carried to a state warehouse for inspection (Turner v. State of Maryland, 107 U. S. 38, 2 S. Ct. 44, 27 L. Ed. 370). A fortiori," }, { "docid": "22796025", "title": "", "text": "Co. v. Keokuk, 95 U. S. 80; Packet Co. v. Catlettsburg, 105 U. S. 559; Transportation Co. v. Parkersburg, 107 U. S. 691; Ouachita Packet Co. v. Aiken, 121 U. S. 444; establish inspection and quarantine laws, Turner v. Maryland, 107 U. S. 38; Morgan’s S. S. Co. v. Louisiana Board of Health, 118 U. S. 455; Patapsco Guano Co. v. North Carolina Board of Agriculture, 171 U. S. 345; Rasmussen v. Idaho, 181 U. S. 198; Smith v. St. Louis & S. W. R. Co., 181 U. S. 248; Reid v. Colorado, 187 U. S. 137; New Mexico ex rel. McLean & Co. v. Denver & R. G. R. Co., 203 U. S. 38; Asbell v. Kansas, 209 U. S. 251; Red “C” Oil Mfg. Co. v. Board of Agriculture, 222 U. S. 380; Savage v. Jones, 225 U. S. 501; Pure Oil Co. v. Minnesota, 248 U. S. 158; Mintz v. Baldwin, 289 U. S. 346; cf. Railroad Co. v. Husen, 95 U. S. 465; Minnesota v. Barber, 136 U. S. 313; Brimmer v. Reb-man, 138 U. S. 78; and regulate the taking or exportation of domestic game, Geer v. Connecticut, 161 U. S. 519; New York ex rel. Silz v. Hesterberg, 211 U. S. 31; cf. Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1, 13, holding invalid a local regulation ostensibly designed to conserve a natural resource but whose purpose and effect were to benefit Louisiana enterprise at the expense of businesses outside the state." }, { "docid": "23232961", "title": "", "text": "the exaction of the fee of one hundred dollars. 1. With respect to the first question the case in its essential features is .not to be distinguished from that of Savage v. Jones, decided June 7, 1912, ante, p. 501, and nothing need be added to what was there said. It was competent for the State, in the exercise of its power to prevent imposition upon the public, to require the disclosure to which objection is made. The provision was not an unreasonable one and the effect upon interstate commerce was incidental only. Plumley v. Massachusetts, 155 U. S. 461; Hennington v. Georgia, 163 U. S. 299, 317; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613; Patapsco Guano Co. v. North Carolina, 171 U. S. 345, 361; McLean v. Denver & Rio Grande R. R. Co., 203 U. S. 38, 50; Heath & Milligan Manufacturing Co. v. Worst, 207 U. S. 338; Asbell v. Kansas, 209 U. S. 251, 254, 256. Nor is there any conflict with the Food and Drugs Act of June 30, 1906, c. 3915, 34 Stat. 768; Savage v. Jones, supra. 2. The statute provides for inspection and analysis. Under § 6, it is the duty of the State Food and Dairy Commissioner to “cause to be made analyses of all concentrated commercial feeding-stuffs and agricultural seeds sold or offered for sale in this State.” For this purpose, that officer is authorized “in person or by deputy, to take for analysis a sample from any lot or package of concentrated commercial feeding-stuffs in this State,” and further provision is made to assure the representative character of the sample. The results of the analyses are to be published from time to time in official bulletins. The State Food and Dairy Commissioner is required to enforce the statute and to this end is authorized to appoint, with the approval of the executive council, such analysts and chemists as may be necessary, to carry it into effect. Violation of any of the provisions of the act is made a misdemeanor. We are of opinion that" }, { "docid": "15299752", "title": "", "text": "the other expenses of the State Fishery Foi*ee.’ ” Besides inspection the Fishery Force had other duties imposed upon it by the act. “That organization * * * [was] supplied with men and boats, and required to patrol, day and night, the waters of Chesapeake bay to prevent unlicensed boats from taking oysters [and all boats] from improper tonging or dredging, and to see that shells and culls * * * [were] returned to the natural beds, — provisions intended for the preservation of the supply rather than determining the merchantable quality of oysters offered for sale,” showing that “inspection, policing, and business expenses * * * [were] to be paid for out of inspection fees.” In speaking of this matter the court said: “As the act itself makes a clear distinction between inspection expenses ‘and other expenses,’ the question at once arises as to whether the state did not provide for the collection of more than was ‘absolutely necessary for executing its inspection laws,’ thereby rendering the statute void because it included the cost of ‘something beyond legitimate inspection to determine quality and condition.’ Brimmer v. Rebman, 138 U. S. 83, 11 S. Ct. 213, 34 L. Ed. 862, 3 Inters. Com. Rep. 485.” In discussing .the question whether the fees authorized by the act were more than necessary for executing its inspection provisions, the court laid down two preliminary propositions which were in substance as follows: (1) That where the Legislature in a so-called inspection act fixes the fees to cover the expense of inspection and provides that the same shall be devoted to that purpose, the presumption is that the fees fixed are reasonable and the burden of showing them unreasonable is upon him who asserts the invalidity of the act; but (2) where the Legislature in such an act directs the inspection fees there provided for shall be devoted to defraying “other expenses” as well as those for the inspection provided for in the act, the presumption is that the fees fixed are unreasonable, and the burden is on him who afiiims tho validity of the" }, { "docid": "22774529", "title": "", "text": "is indirect and incidental, and ‘the Constitution of the United States does not secure to any one the privilege of defrauding the public.’” It cannot be doubted that, within the principle of these decisions, and of the others above cited, the State of Indiana — assuming for the present that there was no conflict with Federal legislation — was entitled, in the exercise of its police power, to require the disclosure of the ingredients contained in the feeding stuffs offered for sale in the State, and to provide for' their inspection and analysis. The provisions for the filing of a certificate, for registration and for labels, were merely incidental to these requirements and were appropriate means for accomplishing the legitimate purpose of the act. It is said that the statute permits the State, through its officials, to set up arbitrary standards governing conditions of manufacture. But it does not appear that any arbitrary standard has been set up, or that there has been any attempt to enforce one against the complainant. (See Western Union Telegraph Co. v. Richmond, 224 U. S. 160, 168.) The complainant has declined to file the statément and to affix the labels containing the disclosure of ingredients for which the statute provides, and instead he resorts to this suit. The contention is made that the statute is a disguised revenue measure, but on a review of its provisions we fihd no warrant for such- a characterization of -it. The bill sets forth no facts whatever tí) show that.the charge for stamps is unreasonable in its relation to the cost of inspec tion, and certainly it cannot be said that aught appears “to justify the imputation of bad faith and change the character of the act.” Patapsco Guano Co. v. North Carolina, supra; McLean v. Denver & Rio Grande R. R. Co., supra; Red “C” Oil Co. v. North Carolina, 222 U. S. 380, 393. With respect to the requirement of an advance payment for stamps, to the valúe of five dollars, to accompany the certificate, we need not say more than that the complainant is plainly" }, { "docid": "15293381", "title": "", "text": "legitimate expenses of inspection and regulation. It may be that, in spite of this lumping of receipts and expenditures, the fees paid by the railroads are no more than enough to defray such expenses. The court below was, therefore, justified in refusing to hold the statute void on its face. Second. The court thought the plaintiff had the burden of showing that the sums exacted from rail carriers substantially exceeded the amounts expended for regulation and supervision, and the proofs offered were insufficient to shift the burden to the defendant. This view was erroneous. Foote & Co. v. Stanley, 232 U. S. 494. In that case it appeared that the plaintiffs were packers of oysters taken from the waters of Maryland, Virginia, and New Jersey, and shipped to Baltimore. A statute of Maryland required that the oysters be inspected at Baltimore. It imposed a charge of one cent a bushel “to help defray the expenses of such inspection and the other expenses of the State Fishery Force, upon all oysters unloaded from vessels at the place where said oysters are to be no further shipped in bulk in vessels.” The plaintiffs refused to pay the exaction and, upon threat of enforcement, filed a bill in a state court for injunction alleging the fee was excessive, a burden on interstate commerce, and a violation of the constitutional provision that “No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports except what may be absolutely necessary for executing its inspection laws.” The Maryland Court of Appeals [117 Md. 335; 82 Atl, 380] affirmed a decree dismissing the bill and this court reversed its decision. The plaintiff asserted that as the act laid the fee for the expense of inspection, “and other expenses,” it was obvious that the state had provided for the collection of more than was necessary for inspection. To this the state answered that the section levying the fee was but a part of an elaborate system of inspection imposed upon the state fishery force. It appeared from the evidence, as it" }, { "docid": "23232960", "title": "", "text": "any of’the concentrated commercial feeding-stuffs defined in section three (3) of this act, he shall pay to the state food and dairy commissioner an inspection fee of ten cents per ton for each ton of such concentrated commercial feeding-stuffs sold or offered -for- sale in the state of Iowa for use within this state; except that every manufacturer, importer, dealer or agent for any condimental, patented, proprietary or trademarked stock or poultry foods, or both, shall pay to the state food and dairy commissioner, on or before the fifteenth day of duly of each year, a license fee of one hundred dollars ($100.00) in lieu of such inspection fee. Whenever the manufacturer or importer of such foods shall have paid the' fee herein required, no other person or agent of such manufacturer or importer shall be required to pay such .license fee.” The appellant challenges the constitutional validity of the statute in these two particulars: (1) The requirement that the name and percentage of the diluent or diluents or bases shall be stated, and (2) the exaction of the fee of one hundred dollars. 1. With respect to the first question the case in its essential features is .not to be distinguished from that of Savage v. Jones, decided June 7, 1912, ante, p. 501, and nothing need be added to what was there said. It was competent for the State, in the exercise of its power to prevent imposition upon the public, to require the disclosure to which objection is made. The provision was not an unreasonable one and the effect upon interstate commerce was incidental only. Plumley v. Massachusetts, 155 U. S. 461; Hennington v. Georgia, 163 U. S. 299, 317; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613; Patapsco Guano Co. v. North Carolina, 171 U. S. 345, 361; McLean v. Denver & Rio Grande R. R. Co., 203 U. S. 38, 50; Heath & Milligan Manufacturing Co. v. Worst, 207 U. S. 338; Asbell v. Kansas, 209 U. S. 251, 254, 256. Nor is there any conflict with the Food and Drugs" }, { "docid": "4500263", "title": "", "text": "be exercised in handling, storing and using the same.” , On the case thus stated it is claimed that the Supreme Court of Minnesota erred in refusing to hold: . First, That the inspection fees imposed were so excessive in amount as to render the act a revenue rather than an inspection measure and that as such it offends against § 8, Article I of the Federal Constitution, as an attempt by the State to regulate interstate commerce; and Second, That to the' extent that the act applies to gasoline it is not a valid exercise -of the police powers of ■ the State, because it does not serve to protect or safeguard the health, morals or convenience of the public and therefore offends against the Fourteenth Amendment to the Federal Constitution by depriving the plaintiff in error of its property without due process of law to the extent of the. fees which it in terms exacts. The principles of law applicable to the decision of the case thus before us are. few and they are perfectly settled by the decisions of this court. In the exercise of its police power á State may enact inspection laws, which are valid if they tend in a direct and substantial manner to promote the public safety and welfare or to protect the public from frauds and imposition when dealing in articles of general use, as to which Congress has not made any conflicting regulation, and a fee reásonably sufficient to pay the cost of such inspection may constitutionally be charged, even though the property may be moving in interstate commerce when inspected, Patapsco Guano Co. v. North Carolina Board of Agriculture, 171 U. S. 345, 357, 358, 361; McLean & Co. v. Denver & Rio Grande R. R. Co., 203 U. S. 38; Asbell v. Kansas, 209 U. S. 251; Patterson v. Kentucky, 97 U. S. 501, 504; Savage v. Jones, 225 U. S. 501, 525. Specifically, state laws providing* for the inspection of oils and gasoline have several times been recognized as valid by this court. Patterson v. Kentucky, 97 U." }, { "docid": "4500265", "title": "", "text": "S. 501; Red “C” Oil Mfg. Co. v. Board of Agriculture of North Carolina, 222 U. S. 380, and Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159. But if such inspection charge should be obviously and largely in excess of the cost of inspection, the act will be declared void because constituting, in its operation, an obstruction to and burden upon that commerce among the States the exclusive regulation of which is committed to Congress by' the Constitution. Postal Telegraph-Cable Co. v. Taylor, 192 U. S. 64; Foote & Co. v. Maryland, 232 U. S. 494, 504, 508. Plainly the application of the principles thus stated leaves open for consideration only the question as to whether the inspection charge is so excessive as to render the act a revenue measure, asi the plaintiff in error claims that it is, and not an inspection I^w enacted in good faith to promote the' public safety and prevent fraud and imposition upon the users of oil-and gasoline. In the consideration of this question the discretion of the legislature in determining the amount of the inspection fee will not lightly be disturbed. Its determination is prima facie reasonable and the courts will not “enter into any nice calculation as to the difference between cost and collection; nor will they declare the fees to be excessive unless it is made clearly to appear that- they are obviously and largely beyond what is needed to pay for the inspection services rendered.”' Foote & Co. v. Maryland, 232 U. S. 494, 504, and Western Union Telegraph Co. v. New Hope, 187 U. S. 419. ; The findings of fact give the following statement of receipts and expenses under the law' assailed, from and > including the year 1909, in which ibwa's passed, to April 30, 1915, which includes the last day covered by the claim in suit, viz: Year Receipts Expenses Percentage of Receipts Used for Department Expenses 1909 $34,934 $30,288 ' 87% 1910 50,667 40,044 79% 1911 56,852 40,494 , 71% 1912 83,354 39,999 63% 1913 72,656 47,117 65% 1914' 81,565 52,467 64% July 31," }, { "docid": "23232963", "title": "", "text": "the statute must be considered as an inspection law which it was within the power of the State to enact, and that its fair import is that the fees exacted by § 5 above quoted are for the purpose of meeting the expense of inspection. The bill alleges no facts warranting the conclusion that the charge is unreasonable as compared with this expense. Patapsco Guano Co. v. North Carolina, 171 U. S. 345, 347, 354, 361; McLean v. Denver & Rio Grande R. R. Co., 203 U. S. 38, 50; Red “ C” Oil Co. v. North Carolina, 222 U. S. 380, 393; Savage v. Jones, supra. The payment of the sum of one hundred dollars in the case of “condimenta!, patented, proprietary or trademarked stock or poultry foods” was required in lieu of the-inspection charge of ten cents a ton, and was in effect a commutation of that' charge. The essential character of the exaction was not altered.- If,it be said that this provision discriminates against one' doing, a- small business, still the appellant wholly fails to show that it is thereby injured and thus entitled to complain. On the contrary,, the bill alleges that the appellant “sells tó more than eight hundred dealers in the State of Iowa, besides • a very large number of customers who buy direct from your orator or through its agents,” and that it “has been enabled to sell in the State of Iowa during the past year and for a number of years preceding a quantity of its goods in an amount exceeding $40,000 per annum.” The case in this aspect falls within the established rule that “one who would strike down a state statute as viola-tive of the Federal Constitution must bring himself .by proper averments and showing within the class as to whom the act thus attacked is unconstitutional. He must show that the alleged unconstitutional feature of the law injures him, and so operates as to deprive him of rights protected by the Federal Constitution.” Southern Ry. Co. v. King, 217. U. S. 524, 534. See also Tyler v." }, { "docid": "11101305", "title": "", "text": "River Improvement Co., 123 U. S. 288. A similar exercise of state power is the imposition of in spection or license fees incident to or in support of local regulations of interstate commerce. Patapsco Guano Co. v. Board of Agriculture, 171 U. S. 345; McLean & Co. v. Denver & Rio Grande R. Co., 203 U. S. 38, 54; Red “ C ” Oil Mfg. Co. v. Board of Agriculture, 222 U. S. 380; Savage v. Jones, 225 U. S. 501; Merchants Exchange v. Missouri, 248 U. S. 365; Pure Oil Co. v. Minnesota, 248 U. S. 158. Its most recent manifestation is the levy of a tax which represents a reasonable charge upon interstate automobile traffic passing over state highways, upheld in Kane v. New Jersey, 242 U. S. 160; Clark v. Poor, 274 U. S. 554; Interstate Busses Corp. v. Blodgett, 276 U. S. 245; Hendrick v. Maryland, 235 U. S. 610. Affirmed. The adoption of the duty of tonnage clause followed a motion of Maryland delegates that “ No state shall be restricted from laying duties of tonnage for the purpose of clearing harbors and erecting light houses.” Despite the assertion that such works were peculiarly necessary in the Chesapeake, the convention proved hostile to state tonnage levies. There was uncertainty whether the commerce clause would forbid such duties: Gouverneur Morris said that it would not, Madison thought that it should, Sherman argued for a concurrent power over commerce with power in the United States to control state regulations. Whereupon the clause was added in its present form. See Madison’s Notes of the Convention (for Sept. 15, 1787)." }, { "docid": "15299753", "title": "", "text": "of ‘something beyond legitimate inspection to determine quality and condition.’ Brimmer v. Rebman, 138 U. S. 83, 11 S. Ct. 213, 34 L. Ed. 862, 3 Inters. Com. Rep. 485.” In discussing .the question whether the fees authorized by the act were more than necessary for executing its inspection provisions, the court laid down two preliminary propositions which were in substance as follows: (1) That where the Legislature in a so-called inspection act fixes the fees to cover the expense of inspection and provides that the same shall be devoted to that purpose, the presumption is that the fees fixed are reasonable and the burden of showing them unreasonable is upon him who asserts the invalidity of the act; but (2) where the Legislature in such an act directs the inspection fees there provided for shall be devoted to defraying “other expenses” as well as those for the inspection provided for in the act, the presumption is that the fees fixed are unreasonable, and the burden is on him who afiiims tho validity of the act. In that ease the statute then before tho court was the re-enactment of an old law levying the same charge of one cent per bushel for inspection and the other expenses of the state fishery force. Under the operations of the old law, it appeared that the revenue1’ produced by it was $40,000, one-third of which was sufficient to pay the salaries of the inspectors, the other two-thirds being used to pay the “other expenses of the Fishery Force.” It did not, however, appear what revenue was produced under the operation of the new statute, but the court held that in the light of the operation of the previous act the failure to show that the amount collected under the new, would not be more than was necessary for the expenses of inpeetion proper, tho present statute was void as imposing an undue burden or tax on interstate commerce. See, also, Foote & Co. v. Clagett, 116 Md. 228, 81 A. 511. The difference between that case and tho one here in question (if" }, { "docid": "22786535", "title": "", "text": "items has been required. Investigations of attempted evasions increase the unit cost above that of other types of traffic. The total of these added expenses, as computed by appellants at about $133,000 annually, .certainly approximates the amount of tie revenue derived from the fees. The aggregate of the fees collected during eleven months for 14,000 cars at $7.50 each is $105,000. Appellees do nothing to challenge this evidence, and they point to no specific errors in the estimates or computation upon which appellants calculate the costs. The state is not required to compute with mathematical precision the cost to it of the services necessitated by the caravan traffic. If the fees charged do not appear to be manifestly disproportionate to the services rendered, we cannot say from our own knowledge or experience that they are excessive. Kane v. New Jersey, supra, 168; Interstate Busses Corp. v. Blodgett, supra, 251, 252; Morf v. Bingaman, supra; Dixie Ohio Express Co. v. State Revenue Comm’n, supra; see Patapsco Guano Co. v. North Carolina, 171 U. S. 345, 354; McLean & Co. v. Denver & Rio Grande R. Co., 203 U. S. 38, 55; Interstate Transit, Inc. v. Lindsey, 283 U. S. 183, 186. Appellees have failed to sustain the burden of proof that either of the fees is excessive for the purpose for which it' is collected. The trial court seems to have thought as appellees argue, that unreasonableness .of the fees was established by proof that the same fees are not imposed on other classes of traffic. Bjit since, as we have seen, there is basis for the classification of the traffic, .there is basis for a difference in fees charged the different classes. Hendrick v. Maryland, supra; Interstate Busses Corp. v. Blodgett, supra. Appellees have laid no foundation for any contention that there are not compensating differences in the traffic comparable to the difference in fees, or for impeaching the legislative judgment that those specified are fairly related to the traffic to which they are applied. The cause will be reversed with instructions to the district court to dismiss the ease" }, { "docid": "23232962", "title": "", "text": "Act of June 30, 1906, c. 3915, 34 Stat. 768; Savage v. Jones, supra. 2. The statute provides for inspection and analysis. Under § 6, it is the duty of the State Food and Dairy Commissioner to “cause to be made analyses of all concentrated commercial feeding-stuffs and agricultural seeds sold or offered for sale in this State.” For this purpose, that officer is authorized “in person or by deputy, to take for analysis a sample from any lot or package of concentrated commercial feeding-stuffs in this State,” and further provision is made to assure the representative character of the sample. The results of the analyses are to be published from time to time in official bulletins. The State Food and Dairy Commissioner is required to enforce the statute and to this end is authorized to appoint, with the approval of the executive council, such analysts and chemists as may be necessary, to carry it into effect. Violation of any of the provisions of the act is made a misdemeanor. We are of opinion that the statute must be considered as an inspection law which it was within the power of the State to enact, and that its fair import is that the fees exacted by § 5 above quoted are for the purpose of meeting the expense of inspection. The bill alleges no facts warranting the conclusion that the charge is unreasonable as compared with this expense. Patapsco Guano Co. v. North Carolina, 171 U. S. 345, 347, 354, 361; McLean v. Denver & Rio Grande R. R. Co., 203 U. S. 38, 50; Red “ C” Oil Co. v. North Carolina, 222 U. S. 380, 393; Savage v. Jones, supra. The payment of the sum of one hundred dollars in the case of “condimenta!, patented, proprietary or trademarked stock or poultry foods” was required in lieu of the-inspection charge of ten cents a ton, and was in effect a commutation of that' charge. The essential character of the exaction was not altered.- If,it be said that this provision discriminates against one' doing, a- small business, still the appellant" }, { "docid": "4500264", "title": "", "text": "are perfectly settled by the decisions of this court. In the exercise of its police power á State may enact inspection laws, which are valid if they tend in a direct and substantial manner to promote the public safety and welfare or to protect the public from frauds and imposition when dealing in articles of general use, as to which Congress has not made any conflicting regulation, and a fee reásonably sufficient to pay the cost of such inspection may constitutionally be charged, even though the property may be moving in interstate commerce when inspected, Patapsco Guano Co. v. North Carolina Board of Agriculture, 171 U. S. 345, 357, 358, 361; McLean & Co. v. Denver & Rio Grande R. R. Co., 203 U. S. 38; Asbell v. Kansas, 209 U. S. 251; Patterson v. Kentucky, 97 U. S. 501, 504; Savage v. Jones, 225 U. S. 501, 525. Specifically, state laws providing* for the inspection of oils and gasoline have several times been recognized as valid by this court. Patterson v. Kentucky, 97 U. S. 501; Red “C” Oil Mfg. Co. v. Board of Agriculture of North Carolina, 222 U. S. 380, and Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159. But if such inspection charge should be obviously and largely in excess of the cost of inspection, the act will be declared void because constituting, in its operation, an obstruction to and burden upon that commerce among the States the exclusive regulation of which is committed to Congress by' the Constitution. Postal Telegraph-Cable Co. v. Taylor, 192 U. S. 64; Foote & Co. v. Maryland, 232 U. S. 494, 504, 508. Plainly the application of the principles thus stated leaves open for consideration only the question as to whether the inspection charge is so excessive as to render the act a revenue measure, asi the plaintiff in error claims that it is, and not an inspection I^w enacted in good faith to promote the' public safety and prevent fraud and imposition upon the users of oil-and gasoline. In the consideration of this question the discretion of the" }, { "docid": "19327720", "title": "", "text": "543; Minnesota v. Barber, 136 U. S. 313, 10 Sup. Ct. 862, 34 L. Ed. 855; Standard Stock Food Co. v. Wright, 225 U. S. 540, 32 Sup. Ct. 784, 56 L. Ed. 1197. While under authority of the foregoing cases, and many others, such as Plumley v. Mass., 155 U. S. 462, 15 Sup. Ct. 154, 39 L. Ed. 223; Crossman v. Lurman, 192 U. S. 189, 24 Sup. Ct. 234, 48 L. Ed. 401; McLean v. Denver & Rio Grande R. R. Co., 203 U. S. 38, 27 Sup. Ct. 1, 51 L. Ed. 78; Delamater v. South Dakota, 205 U. S. 93, 27 Sup. Ct. 447, 51 L. Ed. 724, 10 Ann. Cas. 733; and Savage v. Jones, 225 U. S. 501, 32 Sup. Ct. 715, 56 L. Ed. 1182, the power of the state to provide for the inspection of legitimate subjects of interstate commerce moving as such, to charge a reasonable fee therefor, and to even prohibit the importation of such articles, commodities, and products as do not conform to the test applied is undoubted, yet it must be held the scope of such inspection laws is not withojit its limitation as applied to the nature of the person, article, or thing designed by the law to be inspected and the manner and method of the inspection to be employed. In People v. Compagnie Gen. Transatlantique, 107 U. S. 59, 2 Sup. Ct. 87, 27 L. Ed. 383, the state of New York attempted by legislation to provide for the inspection of immigrants coming from foreign countries into the ports of that state. There was no doubt but that such inspection was reasonably necessary and was promotive of great public good in preventing the spread of both physical ailments and moral diseases. The question presented was the power of the state to provide such inspection by its law. Mr. Justice Miller, delivering the opinion of the court, said: “In addition to what is said above it is apparent that the object of these New York enactments goes far beyond any correct viewoof the purposes of" }, { "docid": "15299751", "title": "", "text": "in Puerto Bieo and provided that straps or stamps of the value of 3 cents should be attached to containers of such coffee holding from twenty-five to one hundred pounds, and straps or stamps of the value of 5 cents to containers of such coffee holding from one to two hundred pounds; and the proceeds derived from the sale of the sirups or stamps provided for under the act were to be “devoted to the payment of such expenses as may arise by reason of the application of this Act.” The act of 1925 is undoubtedly the law the enforcement of which was contemplated by section 23 providing for the expenditure of the funds raised under the act of 1928. In Foote & Co. v. Maryland, 232 U. S. 494, 34 S. Ct. 377, 379, 58 L. Ed. 698, the Supreme Court had under consideration the validity of an oyster inspection law which provided “for an inspection fee of 1 cent per bushel to bo ‘levied to help pay the salary of the inspectors and the other expenses of the State Fishery Foi*ee.’ ” Besides inspection the Fishery Force had other duties imposed upon it by the act. “That organization * * * [was] supplied with men and boats, and required to patrol, day and night, the waters of Chesapeake bay to prevent unlicensed boats from taking oysters [and all boats] from improper tonging or dredging, and to see that shells and culls * * * [were] returned to the natural beds, — provisions intended for the preservation of the supply rather than determining the merchantable quality of oysters offered for sale,” showing that “inspection, policing, and business expenses * * * [were] to be paid for out of inspection fees.” In speaking of this matter the court said: “As the act itself makes a clear distinction between inspection expenses ‘and other expenses,’ the question at once arises as to whether the state did not provide for the collection of more than was ‘absolutely necessary for executing its inspection laws,’ thereby rendering the statute void because it included the cost" } ]

[ { "docid": "3457416", "title": "", "text": "accompanying this legislation noted the importance of this new provision: [it is] crucial to effectuating the original congressional intent that judicial review be available to reverse agency refusals to adhere strictly to the Act’s mandates. Too often the barriers presented by court costs and attorneys’ fees are insurmountable for the average person requesting information, allowing the government to escape compliance with the law. S.Rep. No. 854, 93d Cong., 2d Sess. 17 (1974) [hereinafter cited as Senate Report], reprinted in House Comm, on Gov’t Operations & Senate Comm, on the Judiciary, 94th Cong., 1st Sess., Legislative History of the Freedom of Information Act Amend-merits of 1974, pt. 1, at 169 (Joint Comm. Print 1975) [hereinafter cited as Legislative History]. Congress, in authorizing the award of attorneys’ fees, left to the traditional equitable discretion of the courts the decision whether such fees are appropriate in any given disclosure case. When this case was previously before this court in Cuneo v. Rumsfeld, we stated: It is clear from the legislative history that Congress did not intend the award of attorney fees to be automatic. Instead, the trial court must weigh the facts of each case against the criteria of the existing body of law on the award of attorney fees and then exercise its discretion in determining whether an award is appropriate. 180 U.S.App.D.C. at 191, 553 F.2d at 1367 (footnotes omitted). Noting that it is “better to have that discretion exercised by the court which has been most intimately connected with the case,” id. at 192, 553 F.2d at 1368, this court remanded the case for Judge Hart to rule on the attorneys’ fees. The court mentioned four criteria for the district court to consider in deciding whether to make an award: “(1) the benefit to the public, if any, derived from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant’s interest in the records sought; and (4) whether the government’s withholding of the records had a reasonable basis in law.” Id. at 188, 553 F.2d at 1364 (footnote omitted). See Senate Report 19, reprinted in" } ]

[ { "docid": "7453916", "title": "", "text": "the Department of Justice on June 6, 1984. Without this lawsuit, the plaintiff would have been denied her legal rights under the FOIA. Upon the determination of this court that the actions of the defendants in denying her a fee waiver and in failing to produce the requested documents were arbitrary and capricious, based on an improper application of the law, the plaintiff has prevailed on both counts in her complaint. Once the court has determined that a complainant has “substantially prevailed,” the court’s discretion in awarding attorney fees is to be guided by four criteria enumerated by the Senate in its consideration of the 1974 amendments to the FOIA which added § 552(a)(4)(E): “(1) The benefit to the public, if any, deriving from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant’s interest in the records sought; and (4) whether the government's withholding of the records sought had a reasonable basis in law.” S.Rep. No. 854, 93d Cong., 2d Sess. 19 (1974), reprinted in 1975 Source Book, supra, at 171; see also Education/Instruccion, Inc. v. United States Department of Housing and Urban Development, 649 F.2d 4, 7 (1st Cir.1981). Although this specific listing of factors to be considered by a court was deleted from the final version of the amendment in order to avoid limiting the court to only those factors (see H.R.Rep. No. 1380, 93d Cong., 2d Sess. 10 (Conference Report) (1974), reprinted in 1975 Source Book, supra, at 226-27), numerous courts have adopted those criteria in their consideration of attorney fee awards in FOIA cases. Education/Instruccion, Inc., 649 F.2d at 7; Chamberlain v. Kurtz, 589 F.2d 827, 842-43 (5th Cir.), cert. denied, 444 U.S. 842, 100 S.Ct. 82, 62 L.Ed.2d 54 (1979); Crooker v. United States Department of Justice, 632 F.2d at 922 (1st Cir.1980); Vermont Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509, 512 (2d Cir.1976); Nationwide Building Maintenance, Inc. v. Sampson, 559 F.2d 704, 712 (D.C.Cir.1977); Cuneo v. Rumsfeld, 553 F.2d 1360, 1364 (D.C.Cir.1977). The benefit that the public will derive from the release of the requested" }, { "docid": "14206294", "title": "", "text": "the Justice Department’s files are “agency records” for purposes of FOIA. Tax Analysts v. United States Dep’t of Justice, 845 F.2d 1060 (D.C.Cir.1988). In United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989), the Supreme Court affirmed, holding that the district court tax decisions are “agency records” that were “improperly withheld.” After prevailing on the merits, Tax Analysts filed a petition for attorney’s fees and costs in the district court. The court denied the request for attorney’s fees, and Tax Analysts appealed. II Under FOIA, district courts “may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E). It is undisputed that Tax Analysts substantially prevailed and that the publisher is therefore eligible for attorney’s fees. But a FOIA litigant seeking attorney’s fees also “must show that he or she is ‘entitled’ to an award.” Weisberg v. United States Dep’t of Justice, 745 F.2d 1476, 1495 (D.C.Cir.1984) (emphasis added). This Court has directed the district court to consider at least four criteria in determining whether a substantially prevailing FOIA litigant is entitled to attorney’s fees: (1) the public benefit derived from the ease; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff’s interest in the records; and (4) the reasonableness of the agency’s withholding. See Weisberg, 745 F.2d at 1498; Cuneo v. Rumsfeld, 553 F.2d 1360, 1364 (D.C.Cir.1977); see also S.Rep. No. 854, 93rd Cong., 2d Sess. 17 (1974). The sifting of those criteria over the facts of a case is a matter of district court discretion, see Church of Scientology v. Harris, 653 F.2d 584, 590 (D.C.Cir.1981), and, despite Tax Analysts’ arguments, we see no abuse of discretion here. Considering the “public benefit” factor, the district court found that “while some public benefit is derived from this case, the benefit is minimal.” 759 F.Supp. 28, 30 (1991). In favor of Tax Analysts, the district court observed that Tax Notes’ readers “do provide an important service" }, { "docid": "22050514", "title": "", "text": "of error regarding this exemption. See, e.g., Elgabri v. Lekas, 964 F.2d 1255, 1261 (1st Cir.1992). . For the same reason, the effect of the passage of time upon the individual's privacy interests is simply irrelevant when a FOIA requestor is unable to suggest any public interest in the disclosure of names that would reveal what the government is up to. Privacy interests, no matter how minimal, will outweigh a nonexistent public interest. We therefore reject plaintiffs suggestion that the FBI should have considered \"the mitigation of time” on documents over twenty-five years old. . Because plaintiff does not challenge any of the other bases for withholdings asserted by the government, plaintiff has waived any claims concerning other FOIA exemptions. E.g., Playboy Enterprises, Inc. v. Public Serv. Comm’n, 906 F.2d 25, 40-41 (1st Cir.), cert. denied sub nom. Cruz v. Playboy Enterprises, Inc., 498 U.S. 959, 111 S.Ct. 388, 112 L.Ed.2d 399 (1990). . In support of her motion to take the deposition of Dr. Bosch-Avila, plaintiff submitted the affidavit of Sherry Ann Sullivan. Ms. Sullivan, a private investigator who is also the head of “The Forgotten Families of the CIA,” had brought a similar FOIA suit to plaintiffs. In her affidavit, Sullivan alleged that a confidential informant had personal knowledge that Dr. Bosch-Avila had worked with both Robert Thompson and her father, Geoffrey Sullivan, on CIA-sponsored projects. Ms. Sullivan further alleged that the testimony of Dr. Bosch-Avila would be \"sufficient for the CIA to locate the information and documents which have been requested by Plaintiff and which the C.I.A. says it cannot locate.” . These factors include the following: \"(1) the benefit to the public, if any, derived from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant’s interest in the records sought; and (4) whether the government’s withholding of the records had a reasonable basis in law.\" Aronson, 866 F.2d at 3 (quoting Crooker, 776 F.2d at 367); see also S.Conf.Rep.No. 1200, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6285, 6288 (indicating that Congress intended courts to consider these" }, { "docid": "18731089", "title": "", "text": "not to be awarded as a matter of course, as in civil rights cases; rather, a court [may use] the Senate’s four criteria to circumscribe the conditions under which it would make such an award____ In short, the question of whether to award attorneys’ fees is left to the sound discretion of the court”. Blue, 570 F.2d at 533. The Senate criteria referred to are those that had been included in the Senate version of what was to become § 552(a)(4)(E). The conference substitute eliminated the criteria from the statute, but the conference report on the bill indicates that Congress nevertheless intended courts to consider such factors in exercising their discretion on the issue of attorney’s fees. S.Conf.Rep. No. 1200, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad. News 6267, 6285, 6288. See Crooker v. United States Department of Justice, 632 F.2d at 922; Blue v. Bureau of Prisons, 570 F.2d at 533; Cuneo v. Rumsfeld, 553 F.2d 1360, 1364 (D.C.Cir.1977). These four factors, which we consider separately below, are: (1) the benefit to the public, if any, derived from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant’s interest in the records sought; and (4) whether the government’s withholding of the records had a reasonable basis in law. Education/Instruccion, 649 F.2d at 7; Crooker v. United States Department of Justice, 632 F.2d at 922. As we note infra, these are not airtight, independently indispensable prerequisites. We note briefly at the outset of our discussion that appellant has failed to convince us that he should be awarded attorney’s fees in connection with his request for medical records. Although he sought no commercial benefit from the disclosure, he has not persuaded us that there was sufficient public interest to justify such an award, particularly since we can not say the government had no reasonable basis in law for withholding the records. We thus confine our more detailed scrutiny to the issue of the presentence report. (1) Benefit to the Public It is no doubt true that a successful FOIA plaintiff always acts" }, { "docid": "22050515", "title": "", "text": "Sullivan, a private investigator who is also the head of “The Forgotten Families of the CIA,” had brought a similar FOIA suit to plaintiffs. In her affidavit, Sullivan alleged that a confidential informant had personal knowledge that Dr. Bosch-Avila had worked with both Robert Thompson and her father, Geoffrey Sullivan, on CIA-sponsored projects. Ms. Sullivan further alleged that the testimony of Dr. Bosch-Avila would be \"sufficient for the CIA to locate the information and documents which have been requested by Plaintiff and which the C.I.A. says it cannot locate.” . These factors include the following: \"(1) the benefit to the public, if any, derived from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant’s interest in the records sought; and (4) whether the government’s withholding of the records had a reasonable basis in law.\" Aronson, 866 F.2d at 3 (quoting Crooker, 776 F.2d at 367); see also S.Conf.Rep.No. 1200, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6285, 6288 (indicating that Congress intended courts to consider these factors in determining whether to exercise their discretion to award attorney’s fees pursuant to 5 U.S.C. § 552(a)(4)(E)). . The district court decided to await resolution of the CIA’s appeal before deciding the issue of attorney’s fees as to the CIA." }, { "docid": "22812949", "title": "", "text": "request is denied. Rasmussen, however, points to the legislative history of the 1974 amendments to the FOIA. See H.R.Rep. 93-876, 93d Cong., 2d Sess., reprinted in 1974 U.S.C.C.A.N. at 6267. In its letter included in the Appendix to the House bill, DOJ voiced its objections to the proposed amendment awarding attorneys’ fees to successful plaintiffs under the FOIA, stating that an award of attorneys’ fees is “particularly inappropriate” “in a type of litigation which can be initiated by anyone without the customary legal requirements of standing or interest or injury.” H.R.Rep. 93-876, reprinted in 1974 U.S.C.C.A.N. at 6280. Rasmussen would have us treat this isolated sentence as a concession by the Government that he need not have signed a FOIA request in order to have standing as a plaintiff in the present action. Rasmussen’s argument is without merit. The fact that Congress ultimately passed the amendment providing for an award of attorneys’ fees could alone be interpreted as an implicit rejection of DOJ’s premise that the FOIA has, no standing requirements. See H.R.Rep. 93-876, reprinted in 1974 U.S.C.C.A.N. at 6272 (award of attorneys’ fees to. prevailing FOIA plaintiff desirable when suit advances strong.congressional policy); see also -5 U.S.C.A. §■ 552(a)(4)(E) (West 1977) (court may assess against United States reasonable attorney fees and other litigation costs reasonably incurred where FOIA complainant has “substantially, prevailed”). Moreover,.as discussed above, other portions of the legislative history of § 552 indicate that a person must have submitted a formal request under the FOIA in order to challenge an agency’s decision not to release the requested documents. . Precedent lends additional support to this requirement. The FOIA “is fundamentally designed to inform the public about agency action....” N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 144 n. 10, 95 S.Ct. 1504, 1513 n. 10, 44 L.Ed.2d 29 (1975) (citations omitted). A person seeking information under the FOIA therefore need not have a personal stake in the information sought. Rather, the FOIA creates a private cause of action for the benefit of persons who have requested certain records from a public agency and whose request has" }, { "docid": "22273290", "title": "", "text": "whether to award attorneys’ fees is left to the sound discretion of the court, guided principally by the Senate’s four criteria and, in addition, by any applicable criteria from the older body of equitable decisions on attorneys’ fees. Clearly, however, the Senate’s four criteria are the central guidelines for the award of attorneys’ fees to a prevailing party under FOIA. See Nationwide, supra; Vermont Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509 (2d Cir. 1976); Pope v. United States, 424 F.Supp. 962 (S.D.Tex.1977); American Federation of Government Employees, AFL-CIO v. Rosen, 418 F.Supp. 205 (N.D.Ill.1976); Kaye v. Burns, 411 F.Supp. 897 (S.D.N.Y.1976). With respect to the first of these considerations — “the benefit to the public deriving from the case” — it is doubtless true, as the D.C. Circuit has suggested, that the successful FOIA plaintiff always acts in some degree for the benefit of the public, both by bringing government into compliance with the FOIA disclosure policy and by securing for the public at large “the benefits assumed to flow from the public disclosure of government information.” Cuneo v. Rumsfeld, 180 U.S.App.D.C. 184, 191, 553 F.2d 1360, 1367 (1977). Yet the Senate Report’s discussion of this criterion referred repeatedly to disclosure to the press and to public interest organizations, thus strongly suggesting that in weighing this factor a court should take into account the degree of dissemination and likely public impact that might be expected from a particular disclosure. S.Rep. No. 854, 93d Cong., 2d Sess. 19 (1974). This goes to the central purpose of the disclosure act: to assist our citizenry in making the informed choices so vital to “the maintenance of a popular form of government.” Id. at 2. Thus the factor of “public benefit” does not particularly favor attorneys’ fees where the award would merely subsidize a matter of private concern; this factor rather speaks for an award where the complainant’s victory is likely to add to the fund of information that citizens may use in making vital political choices. In the second and third criteria for attorneys’ fee awards, “the commercial benefit to" }, { "docid": "14188368", "title": "", "text": "of the attorneys’ fees analysis involves the question of entitlement to fees. Even when the plaintiff is eligible for an award of fees, the decision whether or not to award fees remains within the discretion of the court. Church of Scientology, 700 F.2d at 489; Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d 704, 710-13. Although the Act provides no guidance on how the court’s discretion should be exercised, the Church of Scientology court applied the four criteria proposed in the pre-compromise Senate Bill and first adopted by the Nationwide case: (1) the benefit to the public, if any, deriving from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant’s interest in the records sought; and (4) the basis in law for the government’s withholding of the records sought. The Joint Conference Committee, while not precluding the use of the specific criteria proposed by the Senate, deleted them, stating “that because the existing body of law on the award of attorney’s fees recognizes such factors, a statement of the criteria may be too delimiting and is unnecessary.” S.Rep. No. 93-1200, 93d Cong., 2d Sess. (1974), reprinted in [1974] U.S.Code Cong. & Admin.News 6285, 6288. Therefore, the Church of Scientology court noted that these criteria should not be applied woodenly and must be considered in conjunction with the existing body of law on attorneys’ fees. Church of Scientology at 492. Plaintiff instituted the instant action not for commercial gain, but to shed light on the United States government’s policy towards himself and other dissenting American citizens during the 1950’s. In his affidavit, Powell states that he seeks this information to establish the truth of what he published and to prove that he was put on trial for the exercise of his First Amendment rights. The dissemination of the requested non-sensitive material is of great public benefit because of the perspective it may give on a most critical period in our nation’s history. Finally, the government has not offered any plausible basis for its “foot-dragging” in releasing these documents, especially in light of the clear congressional" }, { "docid": "7453917", "title": "", "text": "at 171; see also Education/Instruccion, Inc. v. United States Department of Housing and Urban Development, 649 F.2d 4, 7 (1st Cir.1981). Although this specific listing of factors to be considered by a court was deleted from the final version of the amendment in order to avoid limiting the court to only those factors (see H.R.Rep. No. 1380, 93d Cong., 2d Sess. 10 (Conference Report) (1974), reprinted in 1975 Source Book, supra, at 226-27), numerous courts have adopted those criteria in their consideration of attorney fee awards in FOIA cases. Education/Instruccion, Inc., 649 F.2d at 7; Chamberlain v. Kurtz, 589 F.2d 827, 842-43 (5th Cir.), cert. denied, 444 U.S. 842, 100 S.Ct. 82, 62 L.Ed.2d 54 (1979); Crooker v. United States Department of Justice, 632 F.2d at 922 (1st Cir.1980); Vermont Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509, 512 (2d Cir.1976); Nationwide Building Maintenance, Inc. v. Sampson, 559 F.2d 704, 712 (D.C.Cir.1977); Cuneo v. Rumsfeld, 553 F.2d 1360, 1364 (D.C.Cir.1977). The benefit that the public will derive from the release of the requested information has been discussed at some length earlier in this opinion. Though it is true that the plaintiff has some personal interest in the records sought, there is no indication whatsoever, nor do the defendants claim, that the plaintiff seeks those records solely with the intention of achieving commercial or private benefit. Rather, as I have already found, the plaintiff’s proposed use of the information meets the “public interest” test for fee waivers in that she intends to use the information in a manner “primarily benefiting the general public.” 5 U.S.C. § 552(a)(4)(A). Therefore, as to the first three criteria which must be considered by the court, I find that the public will derive some benefit from this case and that the plaintiff was not motivated primarily by personal or commercial considerations in bringing this action to obtain compliance by the FBI and the Department of Justice with the FOIA’s fee waiver and document production provisions. This situation is exactly what was envisioned by the Senate Judiciary Committee in adding the 1974 attorney fee amendment" }, { "docid": "7453918", "title": "", "text": "information has been discussed at some length earlier in this opinion. Though it is true that the plaintiff has some personal interest in the records sought, there is no indication whatsoever, nor do the defendants claim, that the plaintiff seeks those records solely with the intention of achieving commercial or private benefit. Rather, as I have already found, the plaintiff’s proposed use of the information meets the “public interest” test for fee waivers in that she intends to use the information in a manner “primarily benefiting the general public.” 5 U.S.C. § 552(a)(4)(A). Therefore, as to the first three criteria which must be considered by the court, I find that the public will derive some benefit from this case and that the plaintiff was not motivated primarily by personal or commercial considerations in bringing this action to obtain compliance by the FBI and the Department of Justice with the FOIA’s fee waiver and document production provisions. This situation is exactly what was envisioned by the Senate Judiciary Committee in adding the 1974 attorney fee amendment (5 U.S.C. § 552(a)(4)(E)) to the FOIA. Under the criterion of assessing the nature of the complainant’s interest in the records sought, the Senate stated “a court would generally award fees if the complainant’s interest in the information sought was scholarly or journalistic or public-interest oriented, but would not do so if his interest was of a frivolous or purely commercial nature.” S.Rep. No. 854, 93d Cong., 2d Sess. 19 (1974), reprinted in 1975 Source Book, supra, at 171; see also Nationwide Building Maintenance, Inc. v. Sampson, 559 F.2d 704 (D.C.Cir.1977) (extensive discussion of legislative history of FOIA attorney fees provision). The remaining question, then, is whether the government’s denial of a fee waiver and its requested twenty-two month delay in responding to her May 19, 1983 request had a reasonable basis in law. I find that it did not. The fee waiver denial was based on a misapplication of the clear congressional intent to have such waivers granted to legitimate scholars and historical researchers pursuing topics of bona-fide historical or academic interest. In addition" }, { "docid": "18821687", "title": "", "text": "that agency, clearly establishes a nexus between this litigation and the supplemental release of materials by that agency in March, 1977. That agency’s initial response to plaintiff’s FOIA request came on November 17, 1975 with the release of certain redacted records. After the commencement of this action, “[i]n an effort to accommodate plaintiff further, the Office of General Counsel of the Central Intelligence Agency undertook another review of the relevant CIA documents * * *,” according to the affiant. While this defendant maintains that the additional release of information was not possible until receipt of an authorization from plaintiff’s spouse, the release was not requested until December, 1976, after the commencement of litigation. Based on the foregoing I have little doubt that this action prompted a “second look” by both the FBI and the CIA and substantially resulted in the supplemental releases. Plaintiff having satisfied both of the criteria enunciated in Vermont Low Income, I find that he substantially prevailed in obtaining additional materials as a result of this action. There are, however, other factors which must be considered in determining the appropriateness of an award of attorney’s fees. The legislative history of the 1974 amendment authorizing fee awards indicates that the Senate version had specified four criteria to be used as guides in the court’s exercise of its discretion. The factors are the public benefit (if any) resulting from disclosure, the commercial benefit to the plaintiff from the information, the nature of plaintiff’s interest in the materials sought and whether the government’s resistance was grounded on a reasonable basis in law. See, discussion in Vermont Low Income, supra, at 512-513. The factors were deleted from the final version, as unnecessary and too delimiting, but have been frequently applied in subsequent litigation. See, e.g. Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C.Cir.1977). The first three factors are closely related and reflect various aspects of the question who most benefitted from the information, the plaintiff (in which case he should bear the cost of suit) or the public (in which ease the expense should be shifted to the taxpayers generally via the" }, { "docid": "22273288", "title": "", "text": "several civil rights statutes. H.R.Rep. No. 876, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News, pp. 6267, 6272. In interpreting the statutory clauses cited in this report, the courts had held that a successful plaintiff “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Newman, supra, 390 U.S. at 402, 88 S.Ct. at 966; Northcross, supra, 412 U.S. at 429, 93 S.Ct. 2201; see also, Johnson v. Georgia Highway Express, supra at 716 (and cases cited therein). But in the Senate Report adopted as the bill’s Conference Report, it was made clear that the rule of presumptive award of attorneys’ fees in the civil rights context was not to be applied directly to awards of attorneys’ fees in the FOIA context. The original senate bill had listed four criteria for the award of attorneys’ fees to plaintiffs who substantially prevailed: the benefit to the public deriving from the case, the commercial benefit to the complainant and the nature of his interest in the federal records sought, and whether the government’s withholding of the record sought had a reasonable basis in law. S.Conf.Rep. No. 1200, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News, pp. 6285, 6288. These criteria were eliminated in the final version adopted by Congress, but as the Conference Report explained, “by eliminating these criteria, the conferees did not intend to make the award of attorney fees automatic or to preclude the courts, in exercising their discretion as to awarding such fees, to take into consideration such criteria.” Id. Hence attorneys’ fees under the FOIA were not to be awarded as a matter of course, as in civil rights cases; rather, a court could use the Senate’s four criteria to circumscribe the conditions under which it would make such an award. As the Conference Report explained, these four criteria were only eliminated “because the existing body of law on the award of attorney fees recognizes such factors,” so that “a statement of the criteria may be too delimiting and is unnecessary.” Id. In short, the question of" }, { "docid": "18388707", "title": "", "text": "Court. In Fitzgibbon v. CIA, Civ. No. 76-700 (D.D.C. October 29, 1976) (Order denying motion to dismiss), this Court found jurisdiction to review an agency denial of a fee waiver. Id., slip op. at 3. See Diapulse Corp. of America v. FDA, 500 F.2d 75 (2d Cir. 1974); American Mail Line v. Gulick, 133 U.S.App.D.C. 382, 411 F.2d 696 (D.C.Cir. 1969). The Act gives the agency broad discretion in determining whether to waive fees. See 5 U.S.C. § 552(a)(4)(A); Conf. Rep. No. 93-1200, 93d Cong., 2d Sess. (1974), reprinted in [1974] U.S.Code Cong. & Admin.News, pp. 6267, 6285, 6287. As stated in Fitzgibbon, given the discretion afforded the agency, the proper standard for judicial review of an agency denial of a fee waiver is whether that decision was arbitrary and capricious. But see Rizzo v. Tyler, 438 F.Supp. 895 (S.D.N.Y.1977) (de novo review in District Court). The agency’s determination must be made in light of the statutory language and its purpose of furthering liberal disclosure of government information. The standard for determining whether a fee waiver is in the public interest is “[whether] furnishing the information can be considered as primarily benefiting the general public.” 5 U.S.C. § 552(a)(4)(A). Congress intended that the public interest standard be liberally construed, see S.Rep. No. 93-854, 93d Cong., 2d Sess. 12 (1974), and that fees not be used as an obstacle to disclosure of requested information. See Conf.Rep. No. 93-1200, supra, [1974] U.S.Code Cong. & Admin.News at p. 6287. Thus “[an] agency’s decision not to waive fees is arbitrary and capricious when there is nothing in the agency’s refusal of a fee waiver which indicates that furnishing the information requested cannot be considered as primarily benefiting the general public.” Fitzgibbon v. CIA, Civ. No. 76-700 (D.D.C. Jan. 10, 1977). The statute indicates that the issue to be considered by the agency is whether furnishing the information will primarily benefit the public at large or whether any benefit will inure primarily to the specific individual requesting the documents. The agency’s decision not to waive fees will be rational, and therefore not arbitrary and capricious," }, { "docid": "22273289", "title": "", "text": "and whether the government’s withholding of the record sought had a reasonable basis in law. S.Conf.Rep. No. 1200, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News, pp. 6285, 6288. These criteria were eliminated in the final version adopted by Congress, but as the Conference Report explained, “by eliminating these criteria, the conferees did not intend to make the award of attorney fees automatic or to preclude the courts, in exercising their discretion as to awarding such fees, to take into consideration such criteria.” Id. Hence attorneys’ fees under the FOIA were not to be awarded as a matter of course, as in civil rights cases; rather, a court could use the Senate’s four criteria to circumscribe the conditions under which it would make such an award. As the Conference Report explained, these four criteria were only eliminated “because the existing body of law on the award of attorney fees recognizes such factors,” so that “a statement of the criteria may be too delimiting and is unnecessary.” Id. In short, the question of whether to award attorneys’ fees is left to the sound discretion of the court, guided principally by the Senate’s four criteria and, in addition, by any applicable criteria from the older body of equitable decisions on attorneys’ fees. Clearly, however, the Senate’s four criteria are the central guidelines for the award of attorneys’ fees to a prevailing party under FOIA. See Nationwide, supra; Vermont Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509 (2d Cir. 1976); Pope v. United States, 424 F.Supp. 962 (S.D.Tex.1977); American Federation of Government Employees, AFL-CIO v. Rosen, 418 F.Supp. 205 (N.D.Ill.1976); Kaye v. Burns, 411 F.Supp. 897 (S.D.N.Y.1976). With respect to the first of these considerations — “the benefit to the public deriving from the case” — it is doubtless true, as the D.C. Circuit has suggested, that the successful FOIA plaintiff always acts in some degree for the benefit of the public, both by bringing government into compliance with the FOIA disclosure policy and by securing for the public at large “the benefits assumed to flow from the" }, { "docid": "14206295", "title": "", "text": "1495 (D.C.Cir.1984) (emphasis added). This Court has directed the district court to consider at least four criteria in determining whether a substantially prevailing FOIA litigant is entitled to attorney’s fees: (1) the public benefit derived from the ease; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff’s interest in the records; and (4) the reasonableness of the agency’s withholding. See Weisberg, 745 F.2d at 1498; Cuneo v. Rumsfeld, 553 F.2d 1360, 1364 (D.C.Cir.1977); see also S.Rep. No. 854, 93rd Cong., 2d Sess. 17 (1974). The sifting of those criteria over the facts of a case is a matter of district court discretion, see Church of Scientology v. Harris, 653 F.2d 584, 590 (D.C.Cir.1981), and, despite Tax Analysts’ arguments, we see no abuse of discretion here. Considering the “public benefit” factor, the district court found that “while some public benefit is derived from this case, the benefit is minimal.” 759 F.Supp. 28, 30 (1991). In favor of Tax Analysts, the district court observed that Tax Notes’ readers “do provide an important service to a fair percentage of taxpayers,” and that FOIA’s legislative history “indicates a preference for awarding fees to news organizations.” Id. But “the benefit of plaintiffs scholarly publications should not be overstated,” the district court said, pointing out that Tax Notes’ readership “is not terribly wide” and that several other publications focus on tax issues. Id. Even more important, in the district court’s view, was the fact that Tax Analysts requested information already in the public domain. Although this Court and the Supreme Court found that fact to be irrelevant on the merits, the district court found it significant in the attorney's fees context. The fact that the information obtained was previously available publicly also distinguishes this case from most other FOIA cases involving news organizations, the district court said. The district court acknowledged an advantage in receiving information about cases soon after they are decided. “However, in reality, the benefit of more prompt reporting of 25% of the district court decisions involving tax law is the only benefit the public can derive from this" }, { "docid": "16439636", "title": "", "text": "addresses, and personal relationships. In Wine Hobby USA, Inc. v. I.R.S., 502 F.2d 133 (3rd Cir. 1974), quoted with apparent approval in Rose, supra, the court declined to order production of names and addresses of persons registered with the I.R.S. to produce wine for family use. The privacy interests here are certainly no less compelling than those in Wine Hobby. Moreover, that case involved the more stringent standard of exemption 6. Under these circumstances, the Court finds that disclosure of references to named third parties and their identifying data would constitute an unwarranted invasion of privacy. To recapitulate, the Court has sustained the claims under exemptions 7(C) and 7(D) as to portions of the letter. Nonetheless, the Court finds that much of the letter can be disclosed after deletions of the portions exempt. See § 552(b). The disclosable sections include the only reference to plaintiff. The Court has indicated on a copy of the letter under seal the appropriate deletions of identifying matter relating to all third parties named in the letter. The remaining issues concern plaintiff’s entitlement to an award of attorney’s fees and litigation costs. Congress provided that: “The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E). Assuming without deciding that the plaintiff has substantially prevailed, the Court nevertheless finds that such an award is inappropriate. The use of the verb “may” demonstrates the intent of Congress that the decision should rest in the Court’s discretion. The legislative history, however, does set forth some of the relevant considerations. S.Rep. 93-854, 93d Cong., 2d Sess., p. 19 (1974); Conf.Rep. No. 93-1380, 93d Cong., 2d Sess., pp. 9-10 (1974). The foremost factor is the benefit derived from disclosure. Here the public interest is minimal. Plaintiff is motivated by self-interest in seeking the letter. No additional incentive is required to insure vindication of the rights given in the FOIA. Defendant has not been recalcitrant. The Court finds that no award of attorney fees is warranted. IT" }, { "docid": "7453915", "title": "", "text": "threshold burden of showing that she has “substantially prevailed” in the case. The plaintiff has “substantially prevailed” if she can show that the suit was necessary and that it had a causative effect on the disclosure of the requested information or the granting of a fee waiver. See Crooker v. United States Department of Justice, 632 F.2d 916, 922 (1st Cir.1980). I find that burden has been met by the plaintiff in this case. Her FOIA requests to the FBI of August 9, 1982 and May 19, 1983 have never received a full or adequate response. She pursued her initial requests fully with follow-up letters and additional requests for fee waiver determinations. It was not until January 12, 1984, more than eighteen months after her initial request, almost eight months after her second request, and following an FBIHQ letter informing her that there would be further delays in processing her requests, that she filed this action. Even after this action was filed, her appeal of the FBI’s denial of a fee waiver was denied by the Department of Justice on June 6, 1984. Without this lawsuit, the plaintiff would have been denied her legal rights under the FOIA. Upon the determination of this court that the actions of the defendants in denying her a fee waiver and in failing to produce the requested documents were arbitrary and capricious, based on an improper application of the law, the plaintiff has prevailed on both counts in her complaint. Once the court has determined that a complainant has “substantially prevailed,” the court’s discretion in awarding attorney fees is to be guided by four criteria enumerated by the Senate in its consideration of the 1974 amendments to the FOIA which added § 552(a)(4)(E): “(1) The benefit to the public, if any, deriving from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant’s interest in the records sought; and (4) whether the government's withholding of the records sought had a reasonable basis in law.” S.Rep. No. 854, 93d Cong., 2d Sess. 19 (1974), reprinted in 1975 Source Book, supra," }, { "docid": "22273291", "title": "", "text": "public disclosure of government information.” Cuneo v. Rumsfeld, 180 U.S.App.D.C. 184, 191, 553 F.2d 1360, 1367 (1977). Yet the Senate Report’s discussion of this criterion referred repeatedly to disclosure to the press and to public interest organizations, thus strongly suggesting that in weighing this factor a court should take into account the degree of dissemination and likely public impact that might be expected from a particular disclosure. S.Rep. No. 854, 93d Cong., 2d Sess. 19 (1974). This goes to the central purpose of the disclosure act: to assist our citizenry in making the informed choices so vital to “the maintenance of a popular form of government.” Id. at 2. Thus the factor of “public benefit” does not particularly favor attorneys’ fees where the award would merely subsidize a matter of private concern; this factor rather speaks for an award where the complainant’s victory is likely to add to the fund of information that citizens may use in making vital political choices. In the second and third criteria for attorneys’ fee awards, “the commercial benefit to the complainant and the nature of his interest in the case,” the Senate Report showed a preference for public interest groups, indigents and disinterested scholars over private commercial enterprises’ efforts for disclosure. The reason relates to assuring judicial review over agency decisions against disclosure. Both houses of Congress had heard witnesses who pointed out that without attorneys’ fees litigation costs prevented many individuals and nonprofit groups from seeking judicial review of agency refusals to disclose, thus permitting agencies to escape compliance with disclosure laws. But this was not true of commercial plaintiffs, since in those cases “the private self-interest motive, and often pecuniary benefit to the complainant will be sufficient to insure the vindication of rights given in the FOIA.” Id. at 19. The fourth and last criterion, “whether the government’s withholding of the records sought had a reasonable basis in law,” suggests that attorneys’ fees would be favored if an agency’s nondisclosure was designed to avoid embarrassment or thwart the requester. In the instant case the district court’s denial of attorneys’ fees discussed only" }, { "docid": "18731088", "title": "", "text": "Senate Report]. Congress thus determined that plaintiffs who “substantially prevail” may be awarded attorney’s fees under the FOIA. 5 U.S.C. § 552(a)(4)(E). In this case, the work performed by appellant’s attorneys unquestionably led to the release of his presentence report and medical records, as well as to the Solicitor General’s determination that presentence reports are “agency records” subject to the FOIA. We also find that this material would not have been released without the lawsuit. This is sufficient to establish that appellant “substantially prevailed”. Crooker v. United States Department of Justice, 632 F.2d 916, 922 (1st Cir.1980); Vermont Low Income Advocacy Council v. Usery, 546 F.2d 509, 513 (2d Cir.1976). Even if a plaintiff succeeds in obtaining the requested information, however, he is not automatically entitled to an award of attorney’s fees. See, e.g., Education/Instruccion v. U.S. Dep’t of Housing, 649 F.2d 4, 7 (1st Cir.1981); Crooker v. U.S. Dep’t of Justice, 632 F.2d 916, 922 (1st Cir.1980); Blue v. Bureau of Prisons, 570 F.2d 529, 533 (5th Cir.1978). “[Attorneys’ fees under the FOIA [are] not to be awarded as a matter of course, as in civil rights cases; rather, a court [may use] the Senate’s four criteria to circumscribe the conditions under which it would make such an award____ In short, the question of whether to award attorneys’ fees is left to the sound discretion of the court”. Blue, 570 F.2d at 533. The Senate criteria referred to are those that had been included in the Senate version of what was to become § 552(a)(4)(E). The conference substitute eliminated the criteria from the statute, but the conference report on the bill indicates that Congress nevertheless intended courts to consider such factors in exercising their discretion on the issue of attorney’s fees. S.Conf.Rep. No. 1200, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad. News 6267, 6285, 6288. See Crooker v. United States Department of Justice, 632 F.2d at 922; Blue v. Bureau of Prisons, 570 F.2d at 533; Cuneo v. Rumsfeld, 553 F.2d 1360, 1364 (D.C.Cir.1977). These four factors, which we consider separately below, are: (1) the" }, { "docid": "18388706", "title": "", "text": "such agency. Such fees shall be limited to reasonable standard charges for document search and duplication and provide for recovery of only the direct costs of such search and duplication. Document shall be furnished without charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primary benefiting the general public. Plaintiff argues that she is entitled to a fee ' waiver because the information she seeks is of public interest and because the agency has not demonstrated that furnishing the information will not benefit the general public. Defendant contends that, although Plaintiff’s research is of public interest, a preliminary examination of its files reveals that little information, if any, will be released in response to Plaintiff’s request because much of what she seeks is exempt from disclosure under the Act. Defendant argues that its determination to deny plaintiff a waiver on that basis is rational, not arbitrary and capricious, and must be upheld by the Court. In Fitzgibbon v. CIA, Civ. No. 76-700 (D.D.C. October 29, 1976) (Order denying motion to dismiss), this Court found jurisdiction to review an agency denial of a fee waiver. Id., slip op. at 3. See Diapulse Corp. of America v. FDA, 500 F.2d 75 (2d Cir. 1974); American Mail Line v. Gulick, 133 U.S.App.D.C. 382, 411 F.2d 696 (D.C.Cir. 1969). The Act gives the agency broad discretion in determining whether to waive fees. See 5 U.S.C. § 552(a)(4)(A); Conf. Rep. No. 93-1200, 93d Cong., 2d Sess. (1974), reprinted in [1974] U.S.Code Cong. & Admin.News, pp. 6267, 6285, 6287. As stated in Fitzgibbon, given the discretion afforded the agency, the proper standard for judicial review of an agency denial of a fee waiver is whether that decision was arbitrary and capricious. But see Rizzo v. Tyler, 438 F.Supp. 895 (S.D.N.Y.1977) (de novo review in District Court). The agency’s determination must be made in light of the statutory language and its purpose of furthering liberal disclosure of government information. The standard for determining whether a fee" } ]

[ { "docid": "22703687", "title": "", "text": "OPINION OF THE COURT BECKER, Chief Judge. I. Donald Wayne Marvin pled guilty to conspiracy, robbery, and the use of a firearm during a crime of violence. Marvin wanted to appeal aspects of his sentencing, but Marvin’s counsel filed an Anders motion, requesting to withdraw from representing him and expressing his belief that there were no nonfrivolous arguments for appeal. After reviewing the brief, we conclude that it is inadequate, and deny counsel’s motion. In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court explained the general duties of a lawyer representing an indigent criminal defendant on appeal when the lawyer seeks leave to withdraw from continued representation on the grounds that there are no nonfrivolous issues to appeal. An-ders struck down a process that allowed courts of appeals to accept a mere assertion by counsel that he or she found the appeal to be “without merit.” Id. at 743, 87 S.Ct. 1396. The Court suggested, however, that if, after a “conscientious examination” of the record, counsel found no nonfrivolous issues for appeal, he or she could submit a brief “referring to anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. 1396. Many courts took this as a prescription, but the Supreme Court recently explained that it was only a suggestion. See Smith v. Robbins, — U.S.-, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Each state is free to use any process, Smith explained, so long as defendants’ rights to effective representation are not compromised. See id. at 753. The relevant Third Circuit rule tracks the Anders suggestion: Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After" } ]

[ { "docid": "14098566", "title": "", "text": "wish to challenge his guilty plea and for that reason counsel did not file a record of the plea colloquy nor did he brief issues surrounding the plea. Counsel did, however, review sentencing issues and explain why he found no nonfrivolous issues in this respect. We consider below the adequacy of the Anders brief under these circumstances. II. Anders established requirements for an appointed counsel seeking to withdraw from representation of a defendant on his direct criminal appeal because of the lack of nonfrivolous issues to be raised on appeal. Anders, 386 U.S. at 744, 87 S.Ct. 1396. “[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. “The attorney must isolate ‘possibly important issues’ and must ‘furnish the court with references to the record and legal authorities to aid it in its appellate function.’ ” United States v. Cordero, 18 F.3d 1248, 1253 (5th Cir.1994) (citation omitted). After the defendant has had an opportunity to raise any additional points, the court fully examines the record and decides whether any nonfrivo-lous issue is presented for appeal. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); see also Smith v. Robbins, 528 U.S. 259, 273, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (the purpose of the Anders procedure is “to vindicate the constitutional right to appellate counsel”). The FPD failed to furnish this court with a rearraignment transcript, reflecting the colloquy between the court and the defendant when the defendant entered his guilty plea — nor did he order one. In his Anders brief, the FPD asserts that “Garcia has informed counsel that he does not seek to vacate his guilty plea but seeks to appeal his sentence.” Counsel has cited no authority that permits an attorney moving to withdraw to decline to undertake a “conscientious” examination of part of the record, based solely on his assertion that" }, { "docid": "22049664", "title": "", "text": "Condren could not be given a term of imprisonment greater than the statutory maximum of 10 years. See U.S.S.G. § 5Gl.l(c), 18 U.S.C. §§ 922(g), 924(a)(2). . Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Condren’s counsel (federal public defender) filed a motion to withdraw and supporting brief, maintaining that this case presented no non-frivolous issues. Among other things, the brief asserted that § 2K2.1(b)(5) had been properly applied, but it did not address the issue raised now: the construction to be given possession \"in connection with another felony offense”. Upon receiving, from our court, the requisite notice of the withdrawal submission, Anders, 386 U.S. at 741, 87 S.Ct. at 1398-99, Condren responded that, inter alia, the district court had erred in enhancing his sentence for possession of a firearm in connection with another felony for which he had not been convicted. (As discussed in note 11, infra, a conviction for the other felony is not required.) Accordingly, although both Condren and his counsel addressed the § 2K2.1(b)(5) enhancement, neither raised the issue now before us. Moreover, as discussed, it was arguably not presented in the district court. See supra notes 4-5. Of course, the duty to raise issues for appeal is usually counsel's, rather than the court’s. Indeed, under Anders, counsel has an affirmative duty to advise the court of any non-frivolous issues that, even arguably, could support an appeal. Anders, 386 U.S. at 741, 744, 87 S.Ct. at 1398, 1400; Lofton v. Whitley, 905 F.2d 885, 887 (5th Cir.1990), citing and quoting Anders, 386 U.S. at 744, 87 S.Ct. at 1400, and Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). Certainly, an issue of first impression, such as the one we consider now, should be brought to the court’s attention. Nevertheless, if counsel does not find a non-frivolous issue after a \"conscientious examination of the case”, Lofton, 905 F.2d at 887, the duty to examine the case for issues shifts to the court. In such cases, the court — not counsel — then proceeds, after a" }, { "docid": "22181147", "title": "", "text": "and counsel for frivolous appeal). Despite the restrictive legal test for finding a criminal appeal frivolous, the test is often met in cases where attorneys seek to be relieved of representation on appeal on so-called Anders motions pursuant to the following procedure: In order to be relieved pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), an appellant’s counsel must conscientiously examine the case, identifying any issues that could arguably be raised on appeal. See McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 438-39, 108 S.Ct. 1895, 1901-02, 100 L.Ed.2d 440 (1988). This Court will not grant an Anders motion unless it is satisfied that (1) “counsel has diligently searched the record for any arguably meritorious issue in support of his client’s appeal” and (2) “defense counsel’s declaration that the appeal would be frivolous is, in fact, legally correct.” United States v. Burnett, 989 F.2d 100, 104 (2d Cir.1993). United States v. Torres, 129 F.3d 710, 717 (2d Cir.1997). Customarily, the motion by counsel to be relieved from representation in the appeal of a criminal case is met with a motion for summary affirmance by the Government. In the Torres case, we granted both motions as to defendant Lopez: We grant counsel’s Anders motion and the government’s motion for summary affirmance because we believe that Lopez’s case presents no nonfrivolous issues for appeal. Counsel’s Anders brief addresses Lopez’s plea allocution and sentence, as well as the argument that § 1959 violates the Commerce Clause. Counsel correctly concludes that none of these events present any non-frivolous issues for appeal. Id. In 2009, we granted 160 motions for summary affirmance adjunct to orders granting Anders motions by counsel to be relieved from representation of appellants in criminal appeals. Although no Anders motions is before us in this case, these statistics demonstrate that a fair number of frivolous appeals are filed in this Court. Moreover, the statistics are relevant because we analyze the frivolous issues by the same standards that we apply in deciding such motions and responsive motions for summary affirmance. II. Of the" }, { "docid": "14098565", "title": "", "text": "PER CURIAM: In this appeal, we consider the adequacy of defense counsel’s Anders brief where the defendant has advised counsel that he does not wish to challenge his guilty plea. We conclude that ordinarily counsel must file a transcript and brief the issues surrounding the plea unless the record reflects that the defendant has chosen not to challenge the plea. I. Pursuant to a written plea agreement, Julio Garcia (Garcia) pleaded guilty to possession with intent to distribute more than 500 grams of cocaine. The district court sentenced Garcia to 64 months of imprisonment and four years of supervised release. Garcia filed a timely notice of appeal. The Federal Public Defender (FPD), court-appointed counsel for Garcia, has filed a motion to withdraw and a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Clerk of Court notified Garcia of his right to respond to counsel’s Anders brief, but he has not done so. Counsel stated in his brief that Garcia advised him that he did not wish to challenge his guilty plea and for that reason counsel did not file a record of the plea colloquy nor did he brief issues surrounding the plea. Counsel did, however, review sentencing issues and explain why he found no nonfrivolous issues in this respect. We consider below the adequacy of the Anders brief under these circumstances. II. Anders established requirements for an appointed counsel seeking to withdraw from representation of a defendant on his direct criminal appeal because of the lack of nonfrivolous issues to be raised on appeal. Anders, 386 U.S. at 744, 87 S.Ct. 1396. “[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. “The attorney must isolate ‘possibly important issues’ and must ‘furnish the court with references to the record and legal authorities to aid it in its appellate function.’ ” United" }, { "docid": "19929166", "title": "", "text": "April 12, 2005, the District Court for the Middle District of Pennsylvania (Kane, J.) held a sentencing hearing. Defendant’s counsel continued to argue that the offense level calculation was erroneous for the reasons cited in his earlier motion, but made no argument concerning his various theories of downward departure, other than indirectly by reference to his prior brief. He alluded to Booker, although not by name, and argued for a lower sentence than that called for by the Guidelines. (App. at pp. 38-40). The District Court implicitly denied the motion to downwardly depart and stated that “I don’t think there’s any question in my mind that the proper offense level is that of 24, with a criminal history category 3. That would be a guideline range of 63 to 78 months.” (App. at p. 60). At sentencing the District Court made no specific reference to Booker or § 3553(a) factors, although the District Judge did state that “I’m not bound by the guidelines.” (App. at p. 63). Moreover, the District Judge did briefly discuss the character of the Defendant and the nature of the crime, which are important § 3553(a) factors. Defendant was sentenced to 78 months. On February 9, 2006, Pulyer’s counsel filed an Anders brief arguing only that the right to appeal was waived by the agreement to plead guilty. On March 15, 2006, Pulyer submitted a pro se brief in which he argued that: (1) the sentencing guideline enhancements were unconstitutional because they were not proven beyond a reasonable doubt; and (2) his counsel was ineffective. II. Pursuant to Third Circuit Local Appellate Rule 109.2(a), if trial counsel reviews the District Court record and “is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting [.Anders ] brief.” Third Circuit L.A.R. 109.2(a). In considering counsel’s submission, we must examine: (1) “whether counsel adequately fulfilled the rule’s requirements;” and (2) “whether an independent review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). To satisfy the Anders requirements counsel" }, { "docid": "19929167", "title": "", "text": "character of the Defendant and the nature of the crime, which are important § 3553(a) factors. Defendant was sentenced to 78 months. On February 9, 2006, Pulyer’s counsel filed an Anders brief arguing only that the right to appeal was waived by the agreement to plead guilty. On March 15, 2006, Pulyer submitted a pro se brief in which he argued that: (1) the sentencing guideline enhancements were unconstitutional because they were not proven beyond a reasonable doubt; and (2) his counsel was ineffective. II. Pursuant to Third Circuit Local Appellate Rule 109.2(a), if trial counsel reviews the District Court record and “is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting [.Anders ] brief.” Third Circuit L.A.R. 109.2(a). In considering counsel’s submission, we must examine: (1) “whether counsel adequately fulfilled the rule’s requirements;” and (2) “whether an independent review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). To satisfy the Anders requirements counsel must “satisfy the court that he or she has thoroughly scoured the record in search of appealable issues” and “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000). The entire thrust of the Anders brief is the erroneous assertion that as part of the plea agreement Pulyer has waived all of his appellate rights. The brief did not address any potential appealable issues on the merits, nor did it explain why such issues are frivolous. Indeed, even the government pointed out that Pulyer did not waive his appellate rights, (Gov. Br. at pp. 11-12), and at sentencing the District Judge specifically advised Defendant of his right to appeal. (App. at p. 65). However, even when an Anders brief is inadequate, we may nevertheless affirm a conviction where the frivolousness of appeal is patent. See Youla, 241 F.3d at 300. We see four possible issues, including the two raised by Pulyer in his pro se brief, and we will consider each in turn. First, the District Court might have" }, { "docid": "16002191", "title": "", "text": "and request permission to withdraw. Defense counsel also has the responsibility of filing a brief referring to anything in the record that may arguably support an appeal. 386 U.S. at 744, 87 S.Ct. 1396. We have stated that “[t]he duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined the record in search of appealable issues, and (2) to explain why the issues are frivolous.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). In his Anders brief, Thomas’ counsel averred that upon a complete review of the record he concluded that there are no non-frivolous issues for appellate review. Further, in order to discharge the duty to cite to anything in the record that may arguably support an appeal, counsel’s Anders brief noted that Thomas applied for a downward departure but that the District Court, although recognizing that it had the authority to depart from the first-degree murder guideline where the defendant did not cause the death knowingly or intentionally, found that Thomas’ conduct was within the heartland of the guideline. Likewise, the District Court, acknowledging that it had authority to take into account various “discouraged sentencing factors” in considering a downward departure (here, Thomas’ asserted mental and emotional conditions and his limited education and vocational skills), held that it would not exercise this discretion to grant a downward departure in Thomas’ case. Finally, counsel’s Anders brief also referenced Thomas’ guilty-plea hearing — although counsel maintained that the Fed. R.Crim.P. 11 proceeding was sufficient in all respects. Appellate counsel then requested permission to withdraw. Further, as required by Anders, counsel gave Thomas notice of his brief and advised him that he had the opportunity to file a pro se brief. Thereafter, Thomas filed a pro se brief raising several issues. First, Thomas contends that Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), precludes the application of U.S.S.G. § 2A1.1 to his case. Second, he complains that his Fed.R.Crim.P. 11 hearing was deficient in several respects. Finally, he raises an ineffective assistance of counsel claim." }, { "docid": "16002190", "title": "", "text": "SLOVITER, Circuit Judge. Marshaun Thomas appeals from his conviction and sentence following a guilty plea. Finding no error, we will affirm. I. On September 26, 2002, Thomas pled guilty to participating in a racketeering enterprise in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c). The predicate racketeering acts committed by Thomas supporting his RICO conviction were the felony murder of Alex Irizarry on August 12, 1998 and a bank robbery on October 30, 2000. After accepting his guilty plea, the District Court sentenced Thomas to 360 months of incarceration, but acceded to Thomas’ request that he be credited for the thirty months that he had already served in State custody. Following entry by the District Court of its final order, Thomas’ counsel filed an appellate brief in this court pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which holds that if appointed counsel, after a conscientious examination of the case, finds an appeal to be wholly frivolous, s/he must advise the court and request permission to withdraw. Defense counsel also has the responsibility of filing a brief referring to anything in the record that may arguably support an appeal. 386 U.S. at 744, 87 S.Ct. 1396. We have stated that “[t]he duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined the record in search of appealable issues, and (2) to explain why the issues are frivolous.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). In his Anders brief, Thomas’ counsel averred that upon a complete review of the record he concluded that there are no non-frivolous issues for appellate review. Further, in order to discharge the duty to cite to anything in the record that may arguably support an appeal, counsel’s Anders brief noted that Thomas applied for a downward departure but that the District Court, although recognizing that it had the authority to depart from the first-degree murder guideline where the defendant did not cause the death knowingly or intentionally, found that Thomas’ conduct" }, { "docid": "22655609", "title": "", "text": "a new lawyer for the defendant.) If the brief explains the nature of the case and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous. We shall confine our scrutiny of the record to the portions of it that relate to the issues discussed in the brief. If in light of this scrutiny it is apparent that the lawyer’s discussion of the issues that he chose to discuss is responsible and if there is nothing in the district court’s decision to suggest that there are other issues the brief should have discussed, we shall have enough basis for confidence in the lawyer’s competence to forgo scrutiny of the rest of the record. The resources of the courts of appeals are limited and the time of staff attorneys and law clerks that is devoted to searching haystacks for needles is unavailable for more promising research. Id. at 553. The Third Circuit follows the Seventh Circuit approach. See United States v. Youla, 241 F.3d 296 (3d Cir.2001) and United States v. Ripoll, 123 Fed.Appx. 479 (3d Cir.2005) (unpublished). We agree with the Seventh Circuit’s analysis and adopt its approach to Anders cases. The holding in this case, along with the holding in our companion case, United States v. Garland, No. 09-50317, 632 F.3d 877 (5th Cir.Tex.), setting forth the minimum standards for Anders briefs, will fully satisfy defendants’ Sixth Amendment right of counsel on direct appeal. Applying this process to the facts of Flores’ guilty plea and sentence, and based on our review of counsel’s brief and the relevant portions of the record referenced therein, we accept counsel’s assessment that Flores has no nonfrivolous issues to raise on appeal. III. Accordingly, counsel’s motion to withdraw is granted and the appeal is dismissed as frivolous. See 5th Cir. R. 42.2. . We have incorporated a number of changes in the opinion suggested" }, { "docid": "7455099", "title": "", "text": "of Third Circuit Local Appellate Rule 109.2(a), and 2) whether an independent review of the record presents any nonfrivolous issues. United States v. Coleman, 575 F.3d 316, 319 (3d Cir.2009). An appeal on a matter of law is frivolous where none of the legal points are arguable on their merits. United States v. Youla, 241 F.3d 296, 301 (3d Cir.2001). 1. The Appellate Division did not err by applying Anders procedures in the habeas context Simon argues that the Appellate Division erred by applying Anders procedures to allow court-appointed appellate counsel to withdraw from post-conviction representation. Simon urges this Court to impose a rule that would require such an attorney to fully brief the merits of an appeal of the denial of a habeas petition, even though there is no constitutional right to counsel in the habeas context. Anders procedures are meant to protect a defendant’s constitutional right to counsel. See Pennsylvania v. Finley, 481 U.S. 551, 554-55, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Because that right exists on direct appeal but not in collateral proceedings, Anders procedures are not required in the habeas context. See id. at 555, 557, 107 S.Ct. 1990 (“Since respondent has no underlying constitutional right to appointed counsel in state post-conviction proceedings, she has no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying constitutional right.”). Because Anders procedures afford heightened protections, however, it is not erroneous to apply them in the habeas context. Indeed, Anders procedures afford the petitioner a more careful review of the merits of an appeal than might occur without an attorney or with a less than conscientious attorney. Applying Anders procedures in the habeas context does not deprive the petitioner of anything that he would be given in any other format. The Appellate Division did not, therefore, err by applying Anders procedures in the habeas context. 2. The Appellate Division erred by finding counsel’s Anders brief sufficient as a matter of law Simon contends that the Appellate Division erred by affirming the denial of his habeas petition based on Hermon-Percell’s Anders brief." }, { "docid": "7455098", "title": "", "text": "over decisions rendered by the Territorial Court pursuant to 48 U.S.C. §§ 1613a(a) and 1613a(d). Accordingly, we have jurisdiction pursuant to 28 U.S.C. § 1291 and 48 U.S.C. § 1613a(c). B. Anders Procedures Simon contends that the Appellate Division erred by applying Anders procedures in the habeas context and by affirming the Territorial Court’s denial of his habeas petition. We review legal conclusions de novo and factual findings for clear error. Pittsburgh League of Young Voters Educ. Fund v. Port Auth. of Allegheny Cnty., 653 F.3d 290, 295 (3d Cir.2011). Under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel may seek to withdraw from representing an indigent criminal defendant on appeal if there are no nonfrivolous issues to appeal. United States v. Marvin, 211 F.3d 778, 779 (3d Cir.2000). We exercise plenary review to determine whether there are any such issues. See Penson v. Ohio, 488 U.S. 75, 80-83 & n. 6, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). We must determine: 1) whether counsel adequately fulfilled the requirements of Third Circuit Local Appellate Rule 109.2(a), and 2) whether an independent review of the record presents any nonfrivolous issues. United States v. Coleman, 575 F.3d 316, 319 (3d Cir.2009). An appeal on a matter of law is frivolous where none of the legal points are arguable on their merits. United States v. Youla, 241 F.3d 296, 301 (3d Cir.2001). 1. The Appellate Division did not err by applying Anders procedures in the habeas context Simon argues that the Appellate Division erred by applying Anders procedures to allow court-appointed appellate counsel to withdraw from post-conviction representation. Simon urges this Court to impose a rule that would require such an attorney to fully brief the merits of an appeal of the denial of a habeas petition, even though there is no constitutional right to counsel in the habeas context. Anders procedures are meant to protect a defendant’s constitutional right to counsel. See Pennsylvania v. Finley, 481 U.S. 551, 554-55, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Because that right exists on direct appeal but not in" }, { "docid": "19929168", "title": "", "text": "must “satisfy the court that he or she has thoroughly scoured the record in search of appealable issues” and “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000). The entire thrust of the Anders brief is the erroneous assertion that as part of the plea agreement Pulyer has waived all of his appellate rights. The brief did not address any potential appealable issues on the merits, nor did it explain why such issues are frivolous. Indeed, even the government pointed out that Pulyer did not waive his appellate rights, (Gov. Br. at pp. 11-12), and at sentencing the District Judge specifically advised Defendant of his right to appeal. (App. at p. 65). However, even when an Anders brief is inadequate, we may nevertheless affirm a conviction where the frivolousness of appeal is patent. See Youla, 241 F.3d at 300. We see four possible issues, including the two raised by Pulyer in his pro se brief, and we will consider each in turn. First, the District Court might have applied the wrong burden of proof when ruling on the Sentencing Guidelines enhancements. As he did in his pro se submission, Pulyer could argue that all factors that lead to sentence enhancements must be proven beyond a reasonable doubt. However, this argument fails as a matter of law because sentencing facts need only be determined by a preponderance of the evidence. See United States v. Cooper, 437 F.3d 324, 330 (3d Cir.2006). A review of the record supports the District Court’s determination that all Guideline enhancements in computing the offense level were well supported by a preponderance of the evidence. Second, Pulyer has argued that his counsel was ineffective. However, this argument must be rejected now, because ineffective assistance of counsel claims are not considered by this Court on direct appeal. United States v. Thornton, 327 F.3d 268, 271-72 (3d Cir.2003). Such claims would be deferred to collateral attack. Id. Third, Pulyer might argue that the District Court erred in failing to grant one or more of the downward departures argued by him in his" }, { "docid": "22540513", "title": "", "text": "ROBERT M. PARKER, Circuit Judge: Counsel for Tracy Joseph Wagner filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel now asks that he be allowed to withdraw. Wagner similarly requests that counsel be allowed to withdraw so that he can proceed pro se on appeal. Wagner further requests that counsel’s Anders brief be stricken. In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court held that after a conscientious examination of the record, if appointed counsel finds a criminal defendant’s case to be wholly frivolous, he or she should so advise the court and request permission to withdraw. This request must be accompanied by a brief referring to anything in the record that might arguably support the appeal. 386 U.S. at 744, 87 S.Ct. 1396. The court further required that a copy of the brief be furnished to the defendant so as to allow him an oppor tunity to raise any issues he so chooses. Id. The Anders decision reconciled the conflicting interests of indigent appellants in zealous representation and the judicial system in the efficient administration of justice. Anders and its progeny discuss the adequacy of the brief which the appointed counsel must file in support of the motion to withdraw. Very little discussion exists, however, about the role of the courts in reviewing Anders briefs and requests for withdrawal of counsel. See, e.g., United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996) (noting dearth of case law and holding that “if the brief explains the nature of the ease and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous.”). This case presents a recurring issue: once appointed counsel has filed an Anders brief, should the indigent defendant be allowed to reject his attorney, have the Anders brief stricken, and" }, { "docid": "22660609", "title": "", "text": "F.3d 778, 779 (3d Cir.2000). Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the Supreme Court promulgated in Anders to assure that indigent clients receive adequate and fair representation. Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing. Third Circuit L.A.R. 109.2(a). The Court’s inquiry when counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an independent review of the record presents any nonfrivolous issues. Marvin, 211 F.3d at 780 (citing United States v. Tabb, 125 F.3d 583 (7th Cir.1997); and United States v. Wagner, 103 F.3d 551 (7th Cir.1996)). This Court, following the Seventh Circuit’s analysis in Tabb, established the first inquiry as dispositive: “except in those cases in which frivolousness is patent, we will reject briefs ... in which counsel argue the purportedly frivolous issues aggressively without explaining the faults in the arguments, as well as those where we are not satisfied that counsel adequately attempted to uncover the best arguments for his or her client.” Marvin, 211 F.3d at 781. In this case, we reject the Anders brief for the latter reason. A. Adequacy of Counsel’s Anders Brief The duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined" }, { "docid": "22660608", "title": "", "text": "counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae.” Id.; see also Griffin v. Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (stating that equal justice demands that destitute defendants be afforded adequate appellate review). This Court’s role is then to decide whether the case is wholly frivolous. If so, the Court can grant counsel’s motion to withdraw and dismiss the appeal under federal law, or proceed to a decision on the merits if state law so requires. Anders, 386 U.S. at 744, 87 S.Ct. 1396. “On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” Id. The Supreme Court recently explained in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 753, 145 L.Ed.2d 756 (2000), that the Anders guidelines are only suggestive, not prescriptive. See also United States v. Marvin, 211 F.3d 778, 779 (3d Cir.2000). Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the Supreme Court promulgated in Anders to assure that indigent clients receive adequate and fair representation. Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order" }, { "docid": "22660613", "title": "", "text": "particularly those that Youla argues in his pro se brief. In sum, as in Marvin, “[cjounsel simply has not provided sufficient indicia that he thoroughly searched the record and the law in service of his client so that we might confidently consider only those objections raised.” Id. Therefore, we reject the Anders brief as inadequate. B. Arguable Merits to the Appeal The Seventh Circuit in Wagner clarified the standard for determining whether to accept counsel’s statement, via an Anders motion and brief, that there are no nonfrivolous grounds for appeal. Specifically, the Court considered how deeply the appellate courts must explore the record to determine whether to grant the motion. See Wagner, 103 F.3d at 552. The Wagner court rejected a complete scouring of the record by the courts and identification of the issues for the defendant — effectively serving as his lawyer— for while in some cases it may help the defendant, in others it may hurt him. See id. Where the Anders brief initially appears adequate on its face, the proper course “is for the appellate court to be guided in reviewing the record by the An-ders brief itself.” Id. at 553. However, that is not the status of the brief here. Although the Anders brief does -not assist us, we note that Youla’s pro se brief does provide this Court with some guidance concerning the issues he wishes to raise on appeal. Although not the brief of counsel, we find that it “explains the nature of the case and ... discusses the issues that the type of case might be expected to involve.” In such a circumstance, we extrapolate from Wagner’s recommendation that we confine our scrutiny to those portions of the record identified by an adequate Anders brief, see id., so that our examination of the record is informed by those issues raised in Appellant’s pro se brief. An appeal on a matter of law is frivolous where “[none] of the legal points [are] arguable on their merits.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (citing Anders, 386 U.S." }, { "docid": "21389884", "title": "", "text": "63-78 months. He therefore asked the district court to reduce his sentence to 63 months. The Government filed a response, arguing Mr. Kurtz was not statutorily eligible for a § 3582(c)(2) reduction. On August 19, 2015, the district court denied Mr. Kurtz’s motion. He filed a timely notice of appeal on September 1, 2015. See Fed. R-App. 4(b)(l)(A)(i). C. Anders Brief We appointed the Féderal Public Defender’s Office for the District of New Mexico to represent Mr. Kurtz on appeal. On November 25, 2015, Mr. Kurtz’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which authorizes counsel to request permission to withdraw where counsel conscientiously examines a case and determines that any appeal would be wholly frivolous. Under Anders, counsel must submit a brief to the client and the appellate court indicating any potential ap-pealable issues based on the record. The client may then choose to submit arguments- to the court. The Court must then conduct a full examination of the record to determine whether defendant’s claims are wholly frivolous. If the court concludes after such an examination that the appeal is frivolous, it may grant counsel’s motion to withdraw and may dismiss the appeal. United States v. Calderon, 428 F.3d 928, 930 (10th Cir.2005) (citations omitted). Counsel indicated he could detect no “non-frivolous arguments that the district court erred in denying Mr. Kurtz’s Motion.” Aplt. Br. at 1. He therefore sought permission to withdraw. Counsel mailed a copy of his Anders brief to Mr. Kurtz, who filed a two-page response on January 19, 2016. II. DISCUSSION A. Standard of Review “The scope of a district court’s authority in a sentencing modification proceeding under § 3582(c)(2) is a question of law that we review de novo. We review a denial of a § 3582(c)(2) motion for abuse of discretion.” United States v. Lucero, 713 F.3d 1024, 1026 (10th Cir.2013) (quotation, citation, and brackets omitted). When counsel submits an Anders brief,’ our review of the record is de novo. See United States v. Leon, 476 F.3d 829, 832 (10th Cir.2007)" }, { "docid": "22660611", "title": "", "text": "the record in search of appealable issues, and (2) to explain why the issues are frivolous. Marvin, 211 F.3d at 780 (citing Tabb, 125 F.3d at 585, 586). Counsel need not raise and reject every possible claim. However, at a minimum, he or she must meet the “conscientious examination” standard set forth in Anders. Id. In his Anders brief before this Court, counsel’s analysis of the merits of the potential appealable issues constituted two pages. With regard to sentencing, counsel’s examination cites no case law, and is limited to the following: The sentence imposed upon the appellant also appears to have been without legal error. Based upon the calculation that the applicable base offense level was 18, with a criminal history category I, the imposition of a sentence of imprisonment of 33 months fell within the applicable guideline range. Thus, there is simply no basis for concluding that the District Court’s sentencing decision constituted an abuse of discretion. Appellant’s Br. Pursuant to Anders v. California at 4. Counsel fails to mention that the Presentence Investigation Report (“PIR”) recommended an adjusted offense level of sixteen, nor does he explain the discrepancy between the District Court’s calculation and the PIR. Moreover, counsel does not examine the factual or legal bases for the three upward adjustments of fifteen levels that the District Court made in determining Youla’s sentence. The result was an increase in the guideline range of twenty-one to twenty-seven months recommended in the PIR to a range of twenty-seven to thirty-three months, and a sentence at the top of the latter range. In sharp contrast, Youla’s twenty-six page pro se brief presents three issues for appeal, two alleging errors in the District Court’s application of the Sentencing Guidelines. While the length of a brief does not necessarily determine the merit of its arguments, we do not believe that Youla’s counsel “mention[s] all the issues raised by his client and assure[s] us that he has considered them and found them patently without merit.” Marvin, 211 F.3d at 781. Moreover, Youla’s counsel has not specifically set forth why he abandoned any sentencing objections," }, { "docid": "22604665", "title": "", "text": "Court’s recent decision in United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) rendered void any sentence imposed under the Federal Sentencing Guidelines. On July 27, 2005, this Court requested that the government either file a brief in this case or state its intention to not do so. On August 1, the government notified the Court via letter that it did not intend to submit a brief in this matter, on the ground that the issues raised are frivolous. The government did not mention or rely on Mr. Calderon’s appeal waiver in the plea agreement. Nor did the government file a motion to enforce the appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir.2004). DISCUSSION The Supreme Court’s decision in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), authorizes counsel to request permission to withdraw where counsel conscientiously examines a case and determines that any appeal would be wholly frivolous. Id. at 744, 87 S.Ct. 1396. Under Anders, counsel must submit a brief to the client and the appellate court indicating any potential appealable issues based on the record. Id. The client may then choose to submit arguments to the court. Id. The Court must then conduct a full examination of the record to determine whether defendant’s claims are wholly frivolous. Id. If the court concludes after such an examination that the appeal is frivolous, it may grant counsel’s motion to withdraw and may dismiss the appeal. Id. After a full examination of the record and consideration of both Mr. Calderon’s response brief and the Anders brief filed by Attorney Breeze, we determine that there are no non-frivolous issues upon which Mr. Calderon has a basis for appeal. I. Appeal Waiver Attorney Breeze argues in his Anders brief that the appeal waiver in Mr. Calderon’s plea agreement bars this Court’s review of Mr. Calderon’s sentence, and therefore renders his appeal wholly frivolous. While the appeal waiver might well have provided a basis for dismissal of the appeal, had it been raised, this Court’s precedents preclude dismissal" }, { "docid": "22660610", "title": "", "text": "supplemental briefing. Third Circuit L.A.R. 109.2(a). The Court’s inquiry when counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an independent review of the record presents any nonfrivolous issues. Marvin, 211 F.3d at 780 (citing United States v. Tabb, 125 F.3d 583 (7th Cir.1997); and United States v. Wagner, 103 F.3d 551 (7th Cir.1996)). This Court, following the Seventh Circuit’s analysis in Tabb, established the first inquiry as dispositive: “except in those cases in which frivolousness is patent, we will reject briefs ... in which counsel argue the purportedly frivolous issues aggressively without explaining the faults in the arguments, as well as those where we are not satisfied that counsel adequately attempted to uncover the best arguments for his or her client.” Marvin, 211 F.3d at 781. In this case, we reject the Anders brief for the latter reason. A. Adequacy of Counsel’s Anders Brief The duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined the record in search of appealable issues, and (2) to explain why the issues are frivolous. Marvin, 211 F.3d at 780 (citing Tabb, 125 F.3d at 585, 586). Counsel need not raise and reject every possible claim. However, at a minimum, he or she must meet the “conscientious examination” standard set forth in Anders. Id. In his Anders brief before this Court, counsel’s analysis of the merits of the potential appealable issues constituted two pages. With regard to sentencing, counsel’s examination cites no case law, and is limited to the following: The sentence imposed upon the appellant also appears to have been without legal error. Based upon the calculation that the applicable base offense level was 18, with a criminal history category I, the imposition of a sentence of imprisonment of 33 months fell within the applicable guideline range. Thus, there is simply no basis for concluding that the District Court’s sentencing decision constituted an abuse of discretion. Appellant’s Br. Pursuant to Anders v. California at 4. Counsel fails to mention that the Presentence Investigation" } ]

[ { "docid": "22756183", "title": "", "text": "on certain speakers based on the content of their expression. Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 115 (1991). When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. See R. A. V. v. St. Paul, 505 U. S. 377, 391 (1992). Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction. See Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 46 (1983). These principles provide the framework forbidding the State to exercise viewpoint discrimination, even when the limited public forum is one of its own creation. In a case involving a school district’s provision of school facilities for private uses, we declared that “[tjhere is no question that the District, like the private owner of property, may legally preserve the property under its control for the use to which it is dedicated.” Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 390 (1993). The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics. See, e. g., Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985); Perry Ed. Assn., supra, at 49. Once it has opened a limited forum, however, the State must respect the lawful boundaries it has itself set. The State may not exclude speech where its distinction is not “reasonable in light of the purpose served by the forum,” Cornelius, supra, at 804-806; see also Perry Ed. Assn., supra, at 46, 49, nor may it discriminate against speech on the basis of its viewpoint, Lamb’s Chapel, supra, at 392-393; see also Perry Ed. Assn., supra, at 46; R. A. V., supra, at 386-388, 391-393; cf. Texas" } ]

[ { "docid": "8301765", "title": "", "text": "the illusion that students are engaging in personal expression when in fact the school administration is pulling the strings. Our cases use the term “limited public forum” to describe a situation in which a public school purports to allow students to express their own views or sentiments. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829-830, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995); Widmar v. Vincent, 454 U.S. 263, 272-273, 102 S. Ct. 269, 70 L. Ed. 2d 440 (1981); see also Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45-48, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983). In such a forum, we have held, the State “must not discriminate against speech on the basis of viewpoint.” Good News Club v. Milford Central School, 533 U.S. 98, 106, 121 S. Ct. 2093, 150 L. Ed. 2d 151 (2001); see also Rosenberger, supra, at 829, 115 S. Ct. 2510, 132 L. Ed. 2d 700. Our cases also make it perfectly clear that discrimination against religious, as opposed to secular, expression is viewpoint discrimination. Good News Club, supra, at 107, 121 S. Ct. 2093, 150 L. Ed. 2d 151; Rosenberger, supra, at 830, 831, 115 S. Ct. 2510, 132 L. Ed. 2d 700; Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 393-394, 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993). And our cases categorically reject the proposition that speech may be censored simply because some in the audience may find that speech distasteful. See United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 814-816, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000); R.A.V. v. St. Paul, 505 U.S. 377, 382, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992); Board of Ed., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 871-872, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982) (plurality opinion); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 508-509, 89 S. Ct. 733, 21 L. Ed. 2d" }, { "docid": "7303864", "title": "", "text": "recognized that this fundamental prohibition against viewpoint-based discrimination extends to public schoolchildren, as well, stating, “[W]e do not believe [that Supreme Court precedent] offers any justification for allowing educators to discriminate based on viewpoint.... Without more explicit direction, we will continue to require school officials to make decisions relating to speech which are viewpoint neutral.” Searcey, 888 F.2d at 1325. Consequently, even if Holloman did not have the right to express himself in the manner he did, his rights were still violated if he was punished because Allred disagreed or was offended by what he said. This theory was most clearly applied in R.A.V. v. St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). That case involved an ordinance which made it a crime to place a “burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” Id. at 380, 112 S.Ct. at 2541. The Supreme Court accepted the Minnesota Supreme Court’s construction of the statute as prohibiting only “fighting words,” a constitutionally proscribable category of expression. Id. at 380-81, 112 S.Ct. at 2541. The Court nevertheless invalidated the statute because, in the course of prohibiting conduct the state had the right to criminalize, it made a viewpoint-based distinction. ’ The Court acknowledged that people do not have the First Amendment right to use fighting words. Id. at 382, 112 S.Ct. at 2542-43. The Court emphasized, however, “What [that] means is that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)- — not ... that they can be made the vehicles for content discrimination unrelated to their distinctively proscribable content.” Id. at 383, 112 S.Ct. at 2543. Thus, a particular instance of speech can be proscribable on the basis of one feature (e.g. obscenity) but not on the basis of another (e.g. opposition to the city government) .... [Moreover,] the power to proscribe particular speech on the basis of a noncontent element (e.g. noise)" }, { "docid": "3421283", "title": "", "text": "is directed only at religious exercise and symbolic expression, and thus is content and viewpoint based. Good News Club v. Milford Central School, 533 U.S. 98, 107-110, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) (“speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from a religious viewpoint. Thus, we conclude that Milford’s exclusion of the [Good News] Club from use of the school, pursuant to its community use policy, constitutes impermissible viewpoint discrimination.”), reaffirming, inter alia, Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 394, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). Content or viewpoint based restrictions on Free Exercise and Free Speech are ordinarily subject to the strictest of scrutiny. Id.; Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993); Employment Div., Dept, of Human Resources of Oregon v. Smith, 494 U.S. 872, 884, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). However, the public employment context adds another wrinkle to the analysis of ARIN’s policy. Public employers enjoy somewhat more leeway, but not carte blanch, in regulating the speech and other First Amendment activities of their employees. “Heightened” or “intermediate” level scrutiny generally applies in the public sector, “under which the challenged government action must be substantially related (rather than narrowly tailored) to promoting an important (rather than compelling) government interest ... because First Amendment rights are limited in the public employment context by a government’s need to function efficiently.” Tenafly, 309 F.3d at 167 n. 27, explaining City of Newark. In City of Newark, the United States Court of Appeals for the Third Circuit struck down a police department regulation which prohibited its uniformed officers from wearing beards and other facial hair, but allowed exemptions for some purposes, such as medical conditions. Two Sunni Muslim police officers, who followed the obligation of their religion to grow beards and faced disciplinary proceedings because of it, challenged the no-beards policy as interfering with their First Amendment rights of Free Exercise and" }, { "docid": "23375011", "title": "", "text": "in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.'” Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (quoting Spence, 418 U.S. at 410-11, 94 S.Ct. 2727). Applying this two-prong test (the “Spence-Johnson test”), the Supreme Court held that the First Amendment shelters certain forms of nonverbal communication. For instance, Johnson held that burning an American flag as part of a demonstration against the Reagan Administration’s policies that coincided with the 1984 Republican Party convention was “speech” because its “expressive, overtly political nature” was “both intentional and overwhelmingly apparent” to the protestors’ audience. 491 U.S. at 399, 406, 109 S.Ct. 2533. Similarly, Spence held that attaching a peace symbol to an American flag and displaying the “peace flag” upside down was protected expression. The actor “testified that he put a peace symbol on the flag and displayed it to public view as a protest against the invasion of Cambodia and the killings at Kent State University, events which occurred a few days prior to his arrest,” and “it would have been difficult for the great majority of citizens to miss the drift of appellant’s point at the time that he made it.” 418 U.S. at 408, 410, 94 S.Ct. 2727. Additional types of nonverbal communication have also been deemed constitutionally protected. See, e.g., Schacht v. United States, 398 U.S. 58, 62-63, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970) (wearing United States military uniforms as part of theatrical presentation opposing Vietnam War); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 505-06, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing black armband at school to protest Vietnam War); W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (saluting the American flag to show allegiance to the United States); Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) (displaying red flag to express opposition to organized government). In other cases, the Court assumed, without deciding, that the nonverbal political demonstrations at" }, { "docid": "531070", "title": "", "text": "characteristics of the school environment.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 567, 98 L.Ed.2d 592 (1988); C.H., 990 F.Supp. at 352, n. 17. “[E]ducators may ‘exereis[e] editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.’ ” C.H., 990 F.Supp. at 353 (quoting Hazelwood, 484 U.S. 260, 273, 108 S.Ct. 562, 571, 98 L.Ed.2d 592 (1988)). Plaintiff claims that the restrictions placed on his distribution of proselytizing pencils and evangelical candy canes are not viewpoint neutral because other children were allowed to “express themselves” by directly distributing generic gifts at the in-class seasonal parties. Plaintiffs mother, and presumably plaintiff, were dissatisfied with the school’s accommodation which allowed plaintiff to distribute his religious gifts outside of the classroom and after school hours. The Court finds that this minor restriction is viewpoint neutral and extremely reasonable. Plaintiff argues that “[sjince the restriction addressed religious speech specifically it is automatically not viewpoint neutral.” (PL’s Br. at 5.) Viewpoint neutral, however, does not mean that any regulation that relates to the viewpoint of the speech is prohibited, but rather that the regulation must be based solely upon larger pedagogical concerns rather than a particular point of view. See C.H., 990 F.Supp. at 353 (citing Duran v. Nitsche, 780 F.Supp. 1048, 1052 (E.D.Pa.1991)(quoting Hazelwood, 484 U.S. at 273, 108 S.Ct. 562)). Plaintiff cites the United States Supreme Court’s decision in Lamb’s Chapel v. Center Moriches Union Free School District in support of his position that defendants’ actions in this case were not viewpoint neutral and therefore constituted viewpoint discrimination. 508 U.S. 384, 394-95, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). In Lamb’s Chapel, the Court struck down a school policy that permitted school facilities to be used by a variety of groups during after-school hours, but excluded a group who planned to show a film containing the Christian perspective about child-rearing techniques. See 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352. The Court found that the exclusion of the otherwise permissible film" }, { "docid": "19879744", "title": "", "text": "Violence was not the issue in Morse, or in Fraser, the lewd-speech case. In fact one of the concerns expressed by the Supreme Court in Morse was with the 'psychological effects of drugs. 127 S.Ct. at 2628-29; see also Canady v. Bossier Parish School Board, 240 F.3d 437, 443 (5th Cir.2001); cf. Vernonia School District 47J v. Acton, 515 U.S. 646, 656, 661-62, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). Imagine the psychological effects if the plaintiff wore a T-shirt on which was written “blacks have lower IQs than whites” or “a woman’s place is in the home.” From Morse and Fraser we infer that if there is reason to think that a particular type of student speech will lead to a decline in students’ test scores, an upsurge in truancy, or other symptoms of a sick school — symptoms therefore of substantial disruption — the school can forbid the speech. The rule challenged by the plaintiff appears to satisfy this test. It seeks to maintain a civilized school environment conducive to learning, and it does so in an even-handed way. It is not as if the school forbade only derogatory comments that refer, say, to religion, a prohibition that would signal a belief that being religious merits special protection. See Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 394, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993); R.A.V v. City of St. Paul, supra, 505 U.S. at 391-92, 112 S.Ct. 2538; Hedges v. Wauconda Community Unit School District No. 118, 9 F.3d 1295, 1298 (7th Cir.1993). The list of protected characteristics in the rule appears to cover the full spectrum of highly sensitive personal-identity characteristics. And the ban on derogatory words is general. Nuxoll can’t say “homosexuals are going to Hell” (though he can advocate heterosexuality on religious grounds) and it cannot be said back to him that “homophobes are closeted homosexuals.” The school’s rule bans “derogatory comments ... that refer to race, ethnicity, religion, gender, sexual orientation, or disability.” We grant that a rule which forbids any class of remarks, however narrowly defined and whatever" }, { "docid": "402092", "title": "", "text": "an independent examination of the whole record.' ” Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 729, 11 L.Ed.2d 686 (1964)). . See Perry, 460 U.S. at 48-49, 103 S.Ct. at 956-57 (noting Seventh Circuit's application of strict scrutiny to viewpoint discrimination in nonpublic forum, Perry Local Educators' Ass’n v. Hohlt, 652 F.2d 1286, 1295-97 (7th Cir.1981), while proceeding on other grounds); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 394, 113 S.Ct. 2141, 2148, 124 L.Ed.2d 352 (1993) (stating, in context of nonpublic forum where restriction on speech was held to be viewpoint-discriminatory, that “the interest of the State in avoiding an Establishment Clause violation may be a compelling one justifying an abridgement of free speech” (internal quotation marks omitted)); cf. R.A.V. v. St. Paul, 505 U.S. 377, 391-92, 112 S.Ct. 2538, 2547-48, 120 L.Ed.2d 305 (1992). . Another, related approach to what is meant-by \"viewpoint discrimination” also supports our conclusion. The Supreme Court's decisions dealing with viewpoint discrimination evidence particular hostility to restrictions specifically intended to suppress the circulation of the arguments on one side of a particular debate. See, e.g., Lamb’s Chapel, 508 U.S. at 393, 113 S.Ct. at 2147 (finding viewpoint discrimination where school “permit[ted] school property to be used for the presentation of all views about family issues and child rearing except those dealing with the subject' matter from a religious standpoint\"); R.A.V., 505 U.S. at 384, 112 S.Ct. at 2543 (government may not \"proscrib[e] only libel critical of the government”), 505 U.S. at 388, 112 S.Ct. at 2546 (government may criminalize threats of violence against the President, but not \"only those threats ... that mention his policy on aid to inner' cities\"). Yet laws that restrict the dissemination of defined kinds of expression for reasons that stop well short of suppression of speech are less likely to be found constitutionally offensive on viewpoint grounds. See, e.g., Perry, 460 U.S. at 49, 103 S.Ct." }, { "docid": "16496049", "title": "", "text": "the same side of the split as Campbell v. St. Tammany’s School Board, 206 F.3d 482 (5th Cir.2000), a decision relying in part on our opinion in Bronx Household I, and one which the Supreme Court subsequently vacated and remanded in light of Good News Club, see Campbell v. St. Tammany’s Sch. Bd., 533 U.S. 913, 121 S.Ct. 2518, 150 L.Ed.2d 691 (2001). See Good News Club, 533 U.S. at 105-06, 121 S.Ct. 2093. In reversing the judgment of this Court, a divided Supreme Court found that by excluding the meetings of the Good News Club while allowing other types of instruction on moral and ethical issues the school maintained an exclusionary policy that “constitutes viewpoint discrimination.” Id. at 107, 121 S.Ct. 2093. The majority characterized the Club’s proposed activities as teaching morals and character from a religious perspective. It did not think something that is “ ‘quintessentially religious’ or ‘decidedly religious in nature’ cannot also be characterized properly as the teaching of morals and character development from a particular viewpoint.” Id. at 111, 121 S.Ct. 2093. Because the school allowed teachings about morals and character from a variety of other, secular perspectives, the Court continued, the school could not legally exclude the Club’s meetings solely because of the religious viewpoint it advocated. Id. at 111-12, 121 S.Ct. 2093. The Court concluded by stating, “What matters for purposes of the Free Speech Clause is that we can see no logical difference in kind between the invocation of Christianity by the Club and the invocation of teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons.” Id. at 111, 121 S.Ct. 2093. Significantly, the majority found no meaningful distinction between the case before it and Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). Good News Club, 533 U.S. at 111-12, 121 S.Ct. 2093. In Lamb’s Chapel, the Supreme Court held that a school could not prohibit an outside group’s demonstration of a film about family values simply because the film addressed the issue from a religious" }, { "docid": "531071", "title": "", "text": "5.) Viewpoint neutral, however, does not mean that any regulation that relates to the viewpoint of the speech is prohibited, but rather that the regulation must be based solely upon larger pedagogical concerns rather than a particular point of view. See C.H., 990 F.Supp. at 353 (citing Duran v. Nitsche, 780 F.Supp. 1048, 1052 (E.D.Pa.1991)(quoting Hazelwood, 484 U.S. at 273, 108 S.Ct. 562)). Plaintiff cites the United States Supreme Court’s decision in Lamb’s Chapel v. Center Moriches Union Free School District in support of his position that defendants’ actions in this case were not viewpoint neutral and therefore constituted viewpoint discrimination. 508 U.S. 384, 394-95, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). In Lamb’s Chapel, the Court struck down a school policy that permitted school facilities to be used by a variety of groups during after-school hours, but excluded a group who planned to show a film containing the Christian perspective about child-rearing techniques. See 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352. The Court found that the exclusion of the otherwise permissible film solely because it dealt with the subject [childrearing] from a religious standpoint was viewpoint discrimination. Lamb’s Chapel, 508 U.S. at 394-95, 113 S.Ct. at 2147-48; accord, C.H., 226 F.3d at 210-11 (en banc)(Alito, J., dissenting)(internal citations and quotations omitted). The restrictions placed upon plaintiffs dissemination of his religious messages in this case is not “viewpoint discrimination” because the School District did not open a forum for the exchange of views about a subject, in which case the District could not proscribe a “religious viewpoint” unless it passed a strict scrutiny test. See Lamb’s Chapel, 508 U.S. at 394-95, 113 S.Ct. 2141, 124 L.Ed.2d 352. Here, the contribution of generic gifts bearing no messages was permitted to all students, and this was not a forum to promote any point of view, religious or secular. The seasonal parties for pre-K, kindergarten, and first grade students were school events intended to promote sharing and caring among students, to develop social skills, and to learn about talking in turn when in a large group. Students were not told to" }, { "docid": "4698574", "title": "", "text": "on a subject. Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). Viewpoint discrimination is “an egregious form of content discrimination” and “the violation of the First Amendment is all the more blatant.” Id. “To exclude a group simply because it is controversial or divisive is viewpoint discrimination. A group is controversial or divisive because some take issue with its viewpoint.” Child Evangelism Fellowship of N.J., Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 527 (3d Cir.2004). As Justice Brennan explained in his dissent in Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), “[viewpoint dis crimination is censorship in its purest form and government regulation that discriminates among viewpoints threatens the continued vitality of ‘free speech.’ ” Id. at 62, 103 S.Ct. 948. The Supreme Court has consistently held that discrimination based on the religious character of speech is properly classified as viewpoint discrimination. In Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993), the Court held that a school district could not permit school property to be used for the presentation of all views about family issues and child rearing except those dealing with the subject matter from a religious perspective. Id. at 393, 113 S.Ct. 2141. Similarly, in Rosenberger, the Court held unconstitutional a university’s refusal to fund a student publication because it addressed issues from a religious perspective. 515 U.S. at 831, 115 S.Ct. 2510. The Court explained, “Religion may be a vast area of inquiry, but it also provides, as it did here, a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered.” Id. Finally, in Good News Club v. Milford Central School, 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001), the Court found viewpoint discrimination where a public school permitted nonreligious groups to meet on school property after school but prohibited a Christian club from doing so. Id. at 107-09, 121 S.Ct." }, { "docid": "3946747", "title": "", "text": "384, 390, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993); Christ’s Bride, 148 F.3d at 247. Where, however, the property at issue is a traditional public forum or a forum designed as public by the government,‘the First Amendment hinders the government’s ability to restrict speech. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Christ’s Bride, 148 F.3d at 247. A limited public forum — a subcategory of the designated public forum — “is created when the government opens a nonpublic forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain kinds of subjects.” Kreimer v. Bureau of Police, 958 F.2d 1242, 1246-1247 (3d Cir.1992) (citation omitted). Donovan and Appellees agree that the PAHS activity period is a limited public forum, and we will treat the period as such. Although the government may indeed restrict the limited public forum to certain subjects and certain speakers, the government “may not discriminate against speech on the basis of viewpoint, and the restriction must be reasonable in light of the purpose served by the forum.” Good News Club v. Milford Cent Sch., 533 U.S. 98, 106-107, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). With regard to viewpoint restrictions, “speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the, subject is discussed from a religious viewpoint.” Id. at 112, 121 S.Ct. 2093; see also Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (holding that a university engaged in improper viewpoint discrimination when it denied student activities funds to a student magazine addressing public policy issues from a Christian perspective); Lamb’s Chapel v. Moriches Union Free Sch. Dist., 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (holding that a school’s refusal to permit an organization access to school facilities at night to show a film about family issues from a religious perspective constituted impermissible viewpoint discrimination). FISH is a group that discusses current issues from a biblical" }, { "docid": "19879745", "title": "", "text": "does so in an even-handed way. It is not as if the school forbade only derogatory comments that refer, say, to religion, a prohibition that would signal a belief that being religious merits special protection. See Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 394, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993); R.A.V v. City of St. Paul, supra, 505 U.S. at 391-92, 112 S.Ct. 2538; Hedges v. Wauconda Community Unit School District No. 118, 9 F.3d 1295, 1298 (7th Cir.1993). The list of protected characteristics in the rule appears to cover the full spectrum of highly sensitive personal-identity characteristics. And the ban on derogatory words is general. Nuxoll can’t say “homosexuals are going to Hell” (though he can advocate heterosexuality on religious grounds) and it cannot be said back to him that “homophobes are closeted homosexuals.” The school’s rule bans “derogatory comments ... that refer to race, ethnicity, religion, gender, sexual orientation, or disability.” We grant that a rule which forbids any class of remarks, however narrowly defined and whatever the justification, restricts free speech. But that observation is the beginning of the constitutional analysis, not the end. The number of restrictions on freedom of speech that have survived constitutional challenge is legion. This particular restriction, it is true, would not wash if it were being imposed on adults, id. at 390, 112 S.Ct. 2538; Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), because they can handle such remarks better than kids can and because adult debates on social issues are more valuable than debates among children. It probably would not wash if it were extended to students when they are outside of the school, where students who would be hurt by the remarks could avoid exposure to them. It would not wash if the school understood “derogatory comments” to embrace any statement that could be construed by the very sensitive as critical of one of the protected group identities. (That may, as we’ll see, be a problem with the school’s application of" }, { "docid": "8301766", "title": "", "text": "discrimination against religious, as opposed to secular, expression is viewpoint discrimination. Good News Club, supra, at 107, 121 S. Ct. 2093, 150 L. Ed. 2d 151; Rosenberger, supra, at 830, 831, 115 S. Ct. 2510, 132 L. Ed. 2d 700; Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 393-394, 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993). And our cases categorically reject the proposition that speech may be censored simply because some in the audience may find that speech distasteful. See United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 814-816, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000); R.A.V. v. St. Paul, 505 U.S. 377, 382, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992); Board of Ed., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 871-872, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982) (plurality opinion); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 508-509, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). In this case, however, the Court of Appeals held that a public school did not violate the free speech rights of a student when the school, after creating a limited public forum, banned the performance of “an obviously religious piece” because the piece might offend some members of the “captive audience at a graduation ceremony.” 580 F.3d, at 1095. The tension between this reasoning and the fundamental free speech principles noted above is unmistakable. The Court of Appeals, in a footnote, acknowledged that the district’s decision would have been impermissible if it had constituted viewpoint discrimination, but the court concluded that “this is not a case involving viewpoint discrimination” because petitioner “concede [d] that she was not attempting to express any specific religious viewpoint” but instead “sought only to ‘play a pretty piece.’ ” Id., at 1095, n. 6. This reasoning is questionable at best. First, the Court of Appeals’ holding, as set out in the body of its opinion, does not appear to depend in any way on petitioner’s motivation in helping" }, { "docid": "17462720", "title": "", "text": "issue, we need not tackle the forum-selection question. Regardless of whether the advertising space is a public or nonpublic forum, the coalition is entitled to relief because it has established viewpoint discrimination. Viewpoint discrimination occurs when the government “targets not subject matter, but particular views taken by speakers on a subject.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). See also Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 82 (1st Cir.2004) (explaining that the government engages in viewpoint discrimination when it suppresses speech because it disagrees with “the underlying ideology or perspective that the speech expresses”). Viewpoint discrimination is anathema to free expression and is impermissible in both public and nonpublic fora. R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Perry, 460 U.S. at 46, 103 S.Ct. 948. So if the government allows speech on a certain subject, it must accept all viewpoints on the subject, Cornelius, 473 U.S. at 806, 105 S.Ct. 3439, even those that it disfavors or that are unpopular, Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510. See also Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 392-93, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (where government allowed nonpublic forum to be used for discussion of certain subjects, it could not deny access to those wishing to discuss the subjects from a religious standpoint). The Port Authority claims to have rejected the coalition’s ad on the grounds that it was “political” and “noncommercial” — two types of ads that are banned under the advertising policy. The “political” ground can quickly be dismissed. Because the Port Authority did not mention this basis until after the lawsuit had been filed, the District Court permissibly found that it was not a real basis for rejecting the ad but was, instead, a post hoc rationalization. And in any event it is less than obvious that the ad could even be considered “political” in nature. It would not have called on citizens to, say," }, { "docid": "2775988", "title": "", "text": "on such property are “subject to the highest scrutiny” and “survive only if they are narrowly drawn to achieve a compelling state interest.” International Soc’y far Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 112 S.Ct. 2701, 2705, 120 L.Ed.2d 541 (1992). Limited public forums are “created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects.” Cornelius, 473 U.S. at 802, 105 S.Ct. at 3448; see also Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688, 692 (2d Cir.1991). But restrictions on access based on speaker identity and subject matter are permissible only if “the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius, 473 U.S. at 806, 105 S.Ct. at 3451 (citing Perry Educ. Ass’n, 460 U.S. at 49, 103 S.Ct. at 957). Where the proposed use falls outside of the limited forum, “the State is subject to only minimal constitutional scrutiny.” Fighting Finest, Inc. v. Bratton, 95 F.3d 224, 229 (2d Cir.1996). A nonpublic forum is government property that has not been opened for public speech either by tradition or by designation. See Perry, 460 U.S. at 46, 103 S.Ct. at 955. In such a forum, the government may make “distinctions in access on the basis of subject matter and speaker identity.” Id. at 49, 103 S.Ct. at 957. Appellants first contend that M.S. 206B is an open public forum from which their religious worship and religious teaching activities cannot be excluded absent a compelling state interest. In support of this contention, appellants rely on Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993), in which they say that “the U.S. Supreme Court dropped an anvil-like hint that it thought this Court was incorrect in ruling that no open forum existed in that case.” Cf. Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 959 F.2d 381, 388 (2d Cir.1992). The “hint” to which appellants" }, { "docid": "402091", "title": "", "text": "forum, in which the government may place blanket exclusions on certain types of speech, but may not discriminate unreasonably or on the basis of viewpoint among instances of those types of speech that have not been excluded, see Travis, 927 F.2d at 692, or that the exchanges are fully open designated public forums, in which content restrictions on speech are subjected to strict scrutiny, see Lee, 505 U.S. at 678, 112 S.Ct. at 2705. See Appellees' Brief at 28-29 (arguing that Act is subject to strict scrutiny because exchanges are \"designated as limited public fora\"). The question is irrelevant, however, in light of our holding that military exchanges are nonpublic forums. . The district court stopped short of the issue of viewpoint discrimination, and also of a holding on the nature of the forum, because it found that the Act did not promote a legitimate governmental interest. As these issues are questions of law, we are equally well positioned to decide them. Furthermore, in cases raising First Amendment issues we have \"an obligation to 'make an independent examination of the whole record.' ” Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 729, 11 L.Ed.2d 686 (1964)). . See Perry, 460 U.S. at 48-49, 103 S.Ct. at 956-57 (noting Seventh Circuit's application of strict scrutiny to viewpoint discrimination in nonpublic forum, Perry Local Educators' Ass’n v. Hohlt, 652 F.2d 1286, 1295-97 (7th Cir.1981), while proceeding on other grounds); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 394, 113 S.Ct. 2141, 2148, 124 L.Ed.2d 352 (1993) (stating, in context of nonpublic forum where restriction on speech was held to be viewpoint-discriminatory, that “the interest of the State in avoiding an Establishment Clause violation may be a compelling one justifying an abridgement of free speech” (internal quotation marks omitted)); cf. R.A.V. v. St. Paul, 505 U.S. 377, 391-92, 112 S.Ct. 2538, 2547-48, 120 L.Ed.2d 305 (1992). . Another, related approach to what" }, { "docid": "3421282", "title": "", "text": "aid to religion has an impermissible effect. 521 U.S. at 222-28, 117 S.Ct. 1997 (citations omitted). The major change in the Lemon “effect” inquiry is the shift from the focus on government “entanglements” to Justice O’Connor’s “endorsement” inquiry. The endorsement inquiry asks whether a “reasonable observer” who is deemed aware of the history and context of a challenged policy or program would consider the government policy or program to be an endorsement of religion, which would violate the Establishment Clause, or simply an accommodation of religious beliefs or practices in the interests of individuals’ rights to freely practice or express their religion, which does not. Zelman, 536 U.S. at 652-55, 122 S.Ct. 2460; Tenafly, 309 F.3d at 174-75 (collecting cases). 4. Heightened Scrutiny ARIN’s Religious Affiliations policy must be tested under heightened, but not quite strict, scrutiny. Tenafly, 309 F.3d at 166 n. 27; FOP v. City of Newark, 170 F.3d 359, 365-66 (3d Cir.1999). The Religious Affiliations policy prohibiting the wearing of religious dress, emblems and insignia, specifically including crosses and stars of David, is directed only at religious exercise and symbolic expression, and thus is content and viewpoint based. Good News Club v. Milford Central School, 533 U.S. 98, 107-110, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) (“speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from a religious viewpoint. Thus, we conclude that Milford’s exclusion of the [Good News] Club from use of the school, pursuant to its community use policy, constitutes impermissible viewpoint discrimination.”), reaffirming, inter alia, Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 394, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). Content or viewpoint based restrictions on Free Exercise and Free Speech are ordinarily subject to the strictest of scrutiny. Id.; Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993); Employment Div., Dept, of Human Resources of Oregon v. Smith, 494 U.S. 872, 884, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). However, the public employment" }, { "docid": "20637173", "title": "", "text": "Harper relies to support his viewpoint discrimination claim involve the entirely different question whether schools may deny student groups access to school resources on the basis of their religious viewpoint. See Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 386-87, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (school allowed use of school facilities for private groups, but prohibited \"meetings for religious purposes”); Prince v. Jacoby, 303 F.3d 1074, 1090 (9th Cir.2002) (school allowed student clubs access to school facilities but excluded student Bible club). Those cases are not relevant here. . We note, incidentally, that the incident in question occurred on the day after the “Day of Silence,” and not on the day itself. . We do not, of course, consider whether Harper’s views are consistent with his religion, nor do we ask whether his religion truly encourages homophobic conduct. Similarly, we do not consider whether the- isolated excerpt from the New Testament, Romans 1:27, is representative of Christian doctrine generally. All such inquiries are beyond the judiciary’s authority. See Hernandez v. C.I.R., 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989) (\"It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”) . \"A law is one of neutrality and general applicability if it does not aim to 'infringe upon or restrict practices because of their religious motivation,’ and if it does not 'in a selective manner impose burdens only on conduct motivated by religious belieff.]’ ” San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1031 (9th Cir.2004) (quoting Lukumi, 508 U.S. at 546, 113 S.Ct. 2217). . Harper does not argue that the School's ban on his wearing the injurious and demeaning T-shirt was arbitrary or capricious, only that it violated the First Amendment rights discussed herein. . Although Harper refers to \"other constitutional claims\" and even \"numerous constitutional claims,” the only claim that has the potential to justify his invoking of \"hybrid” status is the free speech claim. ." }, { "docid": "1916172", "title": "", "text": "as vandalism is protected by the First Amendment merely because those engaged in such conduct “intend[] thereby to express an idea.” Johnson, 491 U.S. at 404, 109 S.Ct. at 2539 (quoting O’Brien, 391 U.S. at 376, 88 S.Ct. at 1678). See also Roberts v. United States Jaycees, 468 U.S. at 628, 104 S.Ct. at 3255 (although acts of invidious discrimination may communicate a particular point of view, such practices are not entitled to constitutional protection). The Court also finds that Plaintiffs’ reliance on R.A.V. v. City of St. Paul, Minneso ta, 505 U.S. -, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) is misguided. In that case, the challenged statute prohibited placing, on private or public property, a symbol, object, appellation, characterization or graffiti “which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the-basis of race, color, creed, religion or gender.” The Court concluded that even if the statute was construed to only apply to “fighting words,” it was still unconstitutional because it was both content-based and viewpoint-based. The Court found that the statute was content-based because it only sought to punish certain “fighting words” — those invoking hostilities based on race, gender, color, creed or religion. Id. at -, 112 S.Ct. at 2547. The Court found that the statute was viewpoint-based because fighting words that do not themselves invoke race, color, creed, religion or gender could be used by those in favor of equality and tolerance but not by their opponents. Id. at -, 112 S.Ct. at 2547-48. Unlike the statute in R.A.V., FACE is largely directed at regulating conduct that is unprotected by the First Amendment. See Wisconsin v. Mitchell, — U.S. -, -, 113 S.Ct. 2194, 2201, 124 L.Ed.2d 436 (1993) (“But whereas the ordinance struck down in R.A.V. was explicitly directed at expression (i.e., ‘speech’ or ‘messages,’ [505] at [-], 112 S.Ct. at 2547), the statute in this ease is aimed at conduct unprotected by the First Amendment”). For example, FACE regulates conduct in the form of force or' physical obstruction that injures, places another in reasonable apprehension of" }, { "docid": "15911014", "title": "", "text": "statute because the legislature believed that bias-inspired conduct inflicted greater individual and societal harm. For example, such crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest. Mitchell, 508 U.S. at 487-88, 113 S.Ct. 2194. The State’s desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders’ beliefs or biases. As Blackstone said long ago, “it is but reasonable that among crimes of different natures those should be most severely punished which are the most destructive of the public safety and happiness.” Mitchell, 508 U.S at 498, 113 S.Ct. 2202 (citing 4 W. Blackstone, Commentaries, at 16). The Court concluded that the First Amendment does not prohibit the eviden-tiary use of speech to establish the elements of a crime or to prove motive or intent. 508 U.S at 499, 113 S.Ct. 2202. Kapadia also relies on R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), a case invalidating a municipal ordinance that criminalized as disorderly conduct the placing upon public or private property of a symbol, object or graffiti including, among other things, a burning cross or a Nazi swastika “which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” R.A.V. was a teenager who placed a burning cross inside the fenced yard of a black family. The Court acknowledged that the Minnesota Supreme Court limited the application of the law to fighting words that insult or provoke violence on the basis of race, col- or, creed, religion or gender. The Court found that this limitation was inadequate to save the ordinance because it discriminated not only on the basis of content but also on the basis of viewpoint. Fighting words unrelated to the protected topics remained unregulated, and placards using fighting words in support of racial tolerance, for example, were permissible while opponents of tolerance were not allowed to speak. R.A.V., 505 U.S. at 391-92," } ]

[ { "docid": "22719506", "title": "", "text": "had an improper purpose in calling Edgardo as a witness. This argument falters, however, at the first step because we reject Defendant’s contention that the Government had an improper purpose. We also note that the court repeated its limiting instruction, discussed supra, in full during Smith’s testimony, and the redacted factual resume was admitted as substantive evidence. Defendant raises no other argument regarding Smith’s testimony. Ill Defendant raises three sentencing arguments. First, he argues that the district court erred in applying a weapons enhancement. Second, Defendant contends that the district court improperly treated the Guidelines range as presumptively reasonable. Finally, Defendant challenges the reasonableness of his sentence, including the presumption of reasonableness this court affords Guidelines sentences. We find no error. We review a sentencing decision for “reasonableness,” and as the Supreme Court has clarified, “[the] explanation of ‘reasonableness’ review in the Booker opinion made it pellucidly clear that the familiar abuse-of-discretion standard of review now applies to appellate review of sentencing decisions.” This standard applies “[r]egardless of whether the sentence imposed is inside or outside the Guidelines range.” Gall v. United States bifurcates the process for reviewing a sentence. Appellate courts must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range. Provided that the sentence is proeedurally sound, the appellate court then considers the “substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Neither Gall, Rita v. United States; nor Kimbrough v. United States' purport to alter our review of the district court’s construction of the Guidelines or findings of fact. Thus, “[a] district court’s interpretation or application of the Sentencing Guidelines is reviewed de novo, and its factual findings ... are reviewed for clear error. There is no clear error if the district court’s finding is plausible in light of the record as a whole.” A Section" } ]

[ { "docid": "23081696", "title": "", "text": "Mr. Lewis to 168 months’ imprisonment on each of the four counts, to be served concurrently. This appeal followed, in which Mr. Lewis argues “the District Court failed to properly consider the variance as a matter of policy which constitutes an abuse of discretion and a procedurally [and substantively] unreasonable sentence.” Appellant’s Br. at 4. DISCUSSION We review a criminal defendant’s sentence for reasonableness, deferring to the district court under the “familiar abuse-of-discretion standard of review.” Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Reasonableness review has a procedural and a substantive component. A court may commit procedural error in imposing a sentence by “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. at 51, 128 S.Ct. 586. In performing substantive reasonableness review, we consider “whether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).” United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1215 (10th Cir.2008). A sentence imposed within the properly calculated advisory range is entitled to a rebuttable presumption of reasonableness. United States v. Sanchez-Juarez, 446 F.3d 1109, 1114 (10th Cir.2006). Mr. Lewis alleges that the district court committed both procedural and substantive error in failing to grant a downward variance as a matter of policy based on the disparity between crack and powder sentences. As a procedural matter, Mr. Lewis claims the district court’s procedural error was its failure, in calculating his sentence, to decide as a matter of policy, that a downward variance from the crack guidelines was necessary. I. Procedural reasonableness: Mr. Lewis argues the district court imposed a procedurally unreasonable sentence. As indicated above, procedural error occurs when a court “fail[s] to calculate (or improperly calculates]) the Guideline range, treat[s] the Guidelines as mandatory, fail[s] to consider the § 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to" }, { "docid": "22924884", "title": "", "text": "but denied his other two objections. After applying a full three-level reduction for acceptance of responsibility under U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 3E1.1, the district court determined that the total offense level was 34 and the criminal history category was VI, which yielded a Guidelines range of 262 to 327 months. Acknowledging the advisory nature of the Guidelines, the district court then sentenced defendant to a term of 300 months’ imprisonment. Defendant timely appealed his sentence. II Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review a district court’s sentencing decisions “under a deferential abuse-of-discretion standard,” for reasonableness. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007); United States v. Stephens, 549 F.3d 459, 464 (6th Cir.2008). This inquiry consists of both a procedural and a substantive component. Gall, 128 S.Ct. at 597. First, we must “ensure that the district court committed no significant procedural error.” Id. A sentence is procedurally unreasonable if the district court fails to calculate (or improperly calculates) the Guidelines range, treats the Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails to adequately explain the chosen sentence. Id. We review the district court’s application of the Sentencing Guidelines de novo and the district court’s findings of fact at sentencing for clear error. United States v. Hunt, 487 F.3d 347, 350 (6th Cir.2007). If the sentence is proeedurally sound, we then must consider “the substantive reasonableness of the sentence imposed.” Gall, 128 S.Ct. at 597. A sentence is substantively unreasonable if the district court “selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d 508, 520 (6th Cir.2008). Sentences imposed within a properly-calculated Guidelines range enjoy a rebuttable presumption of substantive reasonableness on appeal. United States v. Vonner, 516 F.3d 382, 389-90 (6th Cir.2008) (en banc); see also Rita v. United States, 551 U.S. 338, 127 S.Ct." }, { "docid": "23418339", "title": "", "text": "of Review The review of sentencing decisions is limited to determining whether they are “reasonable.” Gall v. United States, — U.S. -, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). That process of review is a bifurcated one. Id. We first examine whether the district court committed any significant procedural error, such as: (1) failing to calculate (or improperly calculating) the applicable Guidelines range; (2) treating the Guidelines as mandatory; (3) failing to consider the 18 U.S.C. § 3553(a) factors; (4) determining a sentence based on clearly erroneous facts; or (5) failing to adequately explain the chosen sentence, including an explanation for any deviation from the Guidelines range. Id. at 597. Analyzing for procedural error, the reviewing court examines the district court’s interpretation or application of the Sentencing Guidelines de novo, and its factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008). “There is no clear error if the district court’s finding is plausible in light of the record as a whole.” Id. (quoting United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir.2008)). Next, assuming the district court’s decision is procedurally sound, we consider the substantive reasonableness of the sentence. Gall, 128 S.Ct. at 597. While a sentence within a properly-calculated Guidelines range enjoys a presumption of reasonableness in this Circuit, Cisneros-Gutierrez, 517 F.3d at 766, a sentence that includes an upward or downward departure as allowed by the Guidelines is reviewed for an abuse of discretion. See Gall, 128 S.Ct. at 597 (holding that absent a presumption of reasonableness, abuse of discretion is the standard for reviewing sentences, whether Guideline or non-Guideline, for substantive reasonableness). That the Court of Appeals “might reasonably have concluded that a different sentence was appropriate” is an insufficient justification for reversal of the district court, because the sentencing judge is in a superior position to evaluate the § 3553(a) factors, given that “[t]he judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record.” Gall, 128 S.Ct. at 597 (internal quotations omitted). 2. Analysis A" }, { "docid": "16614415", "title": "", "text": "was entered, Luis moved for leave to file a late appeal. The district court granted the motion, such that Luis Cedillo’s appeal is considered timely. II. Standard of Review This court reviews a district court’s sentencing decision for reasonableness in a bifurcated review. See United States v. Dominguez-Alvarado, 695 F.3d 324, 327 (5th Cir.2012). First, the court must determine whether the district court committed any significant procedural errors, such as “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see also United States v. Ortiz, 613 F.3d 550, 554 (5th Cir.2010). For properly preserved claims, this court reviews the district court’s interpretation and application of the Sentencing Guidelines de novo. See United States v. Goncalves, 613 F.3d 601, 604-05 (5th Cir.2010); United States v. Norris, 159 F.3d 926, 929 (5th Cir.1998). A district court’s findings of fact and its application of the Sentencing Guidelines to those findings of fact are reviewed for clear error. See Goncalves, 613 F.3d at 605; Norris, 159 F.3d at 929. A factual finding is “not clearly erroneous as long as it is plausible in light of the record read as a whole.” United States v. McMillan, 600 F.3d 434, 457-58 (5th Cir.2010) (quotations and citation omitted). If the court finds no procedural error, it then reviews the substantive reasonableness of a district court’s sentencing decision for abuse of discretion, assuming the claim has been properly preserved. See Ortiz, 613 F.3d at 554; Dominguez-Alvarado, 695 F.3d at 327. This reasonableness inquiry “must be guided by the sentencing considerations set forth in 18 U.S.C. § 3553(a).” United States v. Smith, 440 F.3d 704, 706 (5th Cir.2006) (citation omitted). A sentence outside the Sentencing Guidelines “unreasonably fails to reflect the statutory sentencing factors where it (1) does not account for a factor that should" }, { "docid": "22111030", "title": "", "text": "Rodriguez, the second judge is vindictive for not having engaged the Government; but, had the judge done so, he would have caused the Government, once again, to breach its plea agreement. The record shows, as discussed infra, that the second judge was entitled to rely on other bases, negating any need to solicit input from the Government. Again, there is simply no evidence of actual vindictiveness. Therefore, there was no error. In sum, our plain-error review for vindictiveness — presumed or actual — ends. B. In the alternative, Rodriguez claims the advisory guidelines sentencing range used to impose his sentence was not supported by the requisite preponderance of the evidence. Although, post-Booker, the Guidelines are advisory only, and an ultimate sentence is reviewed for reasonableness under an abuse-of-discretion standard, the district court must still properly calculate the advisory guidelines sentencing range for use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In that respect, for properly preserved claims, a sentencing court’s application of the guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008) (citing United States v. Juarez-Duarte, 513 F.3d 204 (5th Cir.), cert. denied, 553 U.S. 1043, 128 S.Ct. 2452, 171 L.Ed.2d 248 (2008)); United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005). In that regard, those factual findings must be supported by a preponderance of the evidence. E.g., United States v. Duhon, 541 F.3d 391, 395 (5th Cir.2008) (citing United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005)). Here, however, as Rodriguez acknowledges, review is only for plain error because, at resentencing, he objected on bases different from those presented here. Villegas, 404 F.3d at 358. As discussed supra, to establish reversible plain error, Rodriguez must show a clear or obvious error that affected his substantial rights. E.g., Baker, 538 F.3d at 332 (citing Thompson, 454 F.3d at 464). Again, if reversible plain error is established, we still retain discretion whether to correct such error and, generally, will" }, { "docid": "22057392", "title": "", "text": "that it is substantively unreasonable. As . a threshold matter, Rodriguez argues that the presumption of reasonableness should not apply to his within-guidelines sentence on appellate review because the guideline upon which it is based, U.S.S.G. § 2L1.2, is penologieally flawed and not the result of empirical evidence or study. These arguments are foreclosed by this court’s decisions in United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir.2009) and United States v. Duarte, 569 F.3d 528, 529-81 (5th Cir.2009). Rodríguez further asserts that, even if the presumption of reasonableness applies, it is rebutted by the facts and circumstances of this case. Specifically, he argues that (1) the 12-level increase in his offense level was excessive because he committed the felony drug offense in 1990 and (2) the district court failed to accord sufficient weight to his cultural assimilation. This court reviews sentences for reasonableness in light of the sentencing factors in § 3553(a), engaging in a bifurcated analysis of the sentence imposed by the district court. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir.2009); United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.2005). Rodriguez does not contend that the district court’s decision is procedurally unsound. When there are no procedural errors, this court will then “consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard” and will “take into account the totality of the circumstances.” Gall, 552 U.S. at 51, 128 S.Ct. 586. A sentence within the range suggested by the guidelines is entitled to a rebuttable presumption of reasonableness. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006); see also Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (holding that an appellate court may apply a presumption of reasonableness to a sentence within a properly-calculated guidelines range). Rodriguez cites United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-58 (9th Cir.2009), for the contention that the rote application of a prior conviction to effect a guideline range enhancement may result in a" }, { "docid": "23509898", "title": "", "text": "Foster. Of course, our review does not include weighing the evidence or assessing the credibility of witnesses. E.g., United States v. Lopez, 74 F.3d 575, 577 (5th Cir.1996). It goes without saying that determining the weight and credibility of the evidence is solely within the province of the jury. E.g., United States v. Casilla, 20 F.3d 600, 602 (5th Cir.1994). Accordingly, it was for the jury to determine, inter alia, whether Vela’s testimony was reliable and whether Salazar and Foster returned to Vela’s home only because they needed gasoline. It is quite obvious that Salazar falls far short of satisfying the very narrow manifest-miscarriage-of-justice standard. Indeed, his sufficiency challenge would fail under the more lenient standard of review had he properly preserved this challenge. B. Salazar contests his sentence on three bases. He maintains the district court erred: by applying the cross-reference to Guideline § 2X3.1; through its interpretation and application of the penalty provisions in 18 U.S.C. § 1512(j); and by considering the evidence in the light of an incorrect burden of proof when determining whether to enhance his sentence in line with the above-referenced guidelines’ cross-reference and the sentencing statute. The district court’s interpretation of the sentencing statutes is reviewed de novo. E.g., United States v. Gonzalez, 250 F.3d 923, 925 (5th Cir.2001). And, although post-Booker, the Sentencing Guidelines are advisory only, and an ultimate sentence is reviewed for reasonableness under an abuse-of-discretion standard, the district court must still properly calculate the guideline-sentencing range for use in deciding on the sentence to impose. Gall v. United States, — U.S. —, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007). In that respect, its application of the guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005). Noting that violation of 18 U.S.C. § 1512(b)(2)(A) is addressed by Guideline § 2J1.2 (Obstruction of Justice), the pre-sentence investigation report (PSR) set Salazar’s base offense level at 14, as that guideline provides. Because he threatened to rape the wife" }, { "docid": "23685259", "title": "", "text": "at the time the pornographic images were produced,” stating: Unfortunately, the “victimization” of the children involved does not end when the pornographer’s camera is put away. The consumer, or end recipient, or pornographic materials may be considered to be causing the children depicted in those materials to suffer as a result of his actions in at least three ways. Id. Here, it is clear that the children depicted were the victims of Jenkins’ crime, and that at least some of these children were especially vulnerable to sexual abuse and exploitation. We agree with the Ninth Circuit that this is sufficient; there is no need to show that the particular vulnerabilities of the victims actually facilitated the commission of Jenkins’ crimes. See United States v. Lynn, 636 F.3d 1127, 1138-39 (9th Cir.2011). We therefore conclude that the district court did not err in applying the section 3Al.l(b)(l) enhancement. II. Substantive Reasonableness Jenkins also argues that his within-Guidelines sentence of twenty years imprisonment is substantively unreasonable. The substantive reasonableness of a sentence is reviewed under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.2008). “The presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir.2009). “[T]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) with respect to a particular defendant,” Campos-Maldonado, 531 F.3d at 339. Jenkins first argues that his sentence is substantively unreasonable because the child pornography guideline, section 2G2.2, lacks an empirical basis and therefore fails to distinguish between the least culpable and the most culpable defendants. However, Jenkins recognizes that this argument is foreclosed by our precedent in United States v. Miller, 665 F.3d 114," }, { "docid": "20459561", "title": "", "text": "picked that place in the guidelines because of the factors in [§ ] 3553(a), your particular history and characteristics, along with a need to deter future criminal conduct and to protect the public.” Alvarado objected “to the sentence under [§ ] 3553(a), that it’s greater than necessary.” This appeal ensued. II. Standard of Review Appellate review of sentences imposed by the district court must first be reviewed for procedural error and then for substantive reasonableness. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “When there are no procedural errors, this court will then ‘consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard’ and will ‘take into account the totality of the circumstances.’ ” United States v. Rodriguez, 660 F.3d 231, 233 (5th Cir.2011) (citing Gall, 552 U.S. at 51, 128 S.Ct. 586). A sentence imposed within the Guideline range is entitled to a rebuttable presumption of reasonableness. Id. (citing United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006)). “‘If the sentencing judge exercises her discretion to impose a sentence within a properly calculated Guideline range, in our reasonableness review we will infer that the judge has considered all the factors for a fair sentence set forth in the Guidelines.’ ” Alonzo, 435 F.3d at 554 (quoting United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005)); see also United States v. Cooks, 589 F.3d 173, 186 (5th Cir.2009). Alvarado can rebut the presumption “only upon a showing that the sentence does not account for a factor that should receive significant weight, [ ] gives significant weight to an irrelevant or improper factor, or [ ] represents a clear error of judgment in balancing sentencing factors.” Cooks, 589 F.3d at 186 (citing United States v. Nikonova, 480 F.3d 371, 376 (5th Cir.2007)). III. Discussion A. On appeal, Alvarado argues that the district court’s sentence was both proeedurally and substantively unreasonable because the court failed to adequately explain the sentence and the court failed to give sufficient weight to the nature and circumstances of his offense. He contends that the court" }, { "docid": "7733821", "title": "", "text": "failed to give proper weight to the age of Marin-Castano’s 1985 conviction, in accordance with the 18 U.S.C. § 3553(a) factors. We disagree. We find neither procedural error, nor substantive unreasonableness with regard to the district court’s imposed sentence of 46 months’ imprisonment. Because Marin-Castano argues that the court committed both procedural and substantive error, we employ more than one standard of review. First, we conduct a de novo review for any procedural error. United States v. Curby, 595 F.3d 794, 796 (7th Cir.2010). If we determine that the district court committed no procedural error, we review the sentence for substantive reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In this circuit, we do apply a presumption of reasonableness to all within-Guidelines sentences. It is not a binding presumption, but it applies in every case and it is the defendant’s burden to overcome it. See Gall, 552 U.S. at 51, 128 S.Ct. 586 (an appellate court may apply a presumption of reasonableness to a within-Guidelines sentence) (citing Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)); United States v. Vizcarra, 668 F.3d 516, 527 (7th Cir.2012) (holding that a properly calculated Guidelines sentence is presumed to be reasonable). When addressing a party’s nonMvolous argument, the sentencing court commits procedural error if it “fail[s] to calculate (or improperly calculates]) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the 18 U.S.C. § 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately explain the chosen sentence.” Gall, 552 U.S. at 51, 128 S.Ct. 586. The district court must say enough to “satisfy the appellate court that it has considered the parties’ arguments and has a reasoned basis for exercising its own legal decisionmaking authority.” Rita, 551 U.S. at 356, 127 S.Ct. 2456. Furthermore, “the court must address the defendant’s principal arguments that are not so weak as to not merit discussion” United States v. Pulley, 601 F.3d 660, 667 (7th Cir.2010) (citing United States v. Villegas-Miranda, 579" }, { "docid": "20730254", "title": "", "text": "review is “highly deferential, because the sentencing court is in a better position to find facts and judge their import under the § 3553(a) factors with respect to a particular defendant.” Fraga, 704 F.3d at 439 (internal quotation marks omitted); see Gall, 552 U.S. at 51, 128 S.Ct. 586 (“The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.”). Sentences within a properly-calculated guidelines range enjoy a presumption of reasonableness. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006). “The presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir.2009). Diaz Sanchez argues his sentence is unreasonable in failing to reflect that he faced severe hardship in El Salvador, desired to return to the United States. to support his family, earned a sixteen-level, offense level enhancement for a remote, 2002 conviction for aggravated assault, and would serve, in his forty-month term of imprisonment, more time in prison than he did for any of his prior offenses. As described, however, the district court considered those arguments, prior to and during sentencing. We perceive no abuse of discretion in the district court’s conclusion that a bottom-of-the-guidelines sentence was appropriate in light of the concerns Diaz Sanchez and the government raised. See Cooks, 589 F.3d at 186. We do not find Diaz Sanchez’s sentence substantively unreasonable. CONCLUSION Concluding the sentence is neither procedurally nor substantively unreasonable, we AFFIRM. . Diaz Sanchez preserves for further review the argument that the guideline on which his sentence is based, U.S.S.G. § 2L1.2, is not owed a presumption of reasonableness because it is not founded on empirical evidence or study, acknowledging that our precedent forecloses the challenge. See Rodriguez, 660 F.3d at 232-33." }, { "docid": "11616389", "title": "", "text": "Cir.2011) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). First, we consider “whether the district court committed a significant procedural error, such as failing to calculate or incorrectly calculating the Guidelines range, treating the Guidelines as mandatory, or failing to consider the Section 3553 sentencing factors.” United States v. Simmons, 568 F.3d 564, 566 (5th Cir.2009) (citing Gall, 552 U.S. at 51, 128 S.Ct. 586). Furthermore, we are to determine if the district court relied on “clearly erroneous facts.” Gall, 552 U.S. at 51, 128 S.Ct. 586. In order to determine if there was a significant procedural error, “we review the district court’s interpretation or application of the sentencing guidelines de novo, and its factual findings for clear error.” United States v. Scott, 654 F.3d 552, 555 (5th Cir.2011) (internal citation and quotation marks omitted). “[I]f the district court’s decision is procedurally sound, we consider the substantive reasonableness of the sentence, considering the factors in 18 U.S.C. § 3553(a).” United States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir.2009) (citing United States v. Armstrong, 550 F.3d 382, 404 (5th Cir.2008)). We review “upward departures for reasonableness, which necessitates that we review ‘the district court’s decision to depart up wardly and the extent of that departure for abuse of discretion.’ ” United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.2006) (quoting United States v. Saldana, 427 F.3d 298, 308 (5th Cir.2005)). “In exercising this bifurcated review process, we continue to review the district court’s application of the Guidelines de novo and its factual findings for clear error.” United States v. Delgado-Martinez, 564 F.3d 750, 751 (5th Cir.2009). III. ANALYSIS Fuentes argues that the district court imposed a procedurally and substantively unreasonable sentence. After a review of the record, we conclude that the district court’s sentence was both procedurally and substantively reasonable. Since we hold that the district court properly applied a departure pursuant to U.S.S.G. § 2L1.2 cmt. n. 7, we do not consider Fuentes’s arguments regarding the district court’s alternative basis for the sentence it imposed. U.S.S.G. § 2L1.2 cmt. n." }, { "docid": "22647393", "title": "", "text": "See 18 U.S.C. § 201(b)(2). The district court considered the 18 U.S.C. § 3553(a) factors and concluded that a guidelines sentence satisfied those factors. The district court sentenced Ruiz to 168 months of imprisonment and three years of supervised release. Ruiz timely appealed. II. Because Ruiz was sentenced after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220,125 S.Ct. 738, 160 L.Ed.2d 621 (2005), this court reviews his sentence for reasonableness in light of the factors set forth in § 3553(a). See United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005). A district court must consider all facts relevant to sentencing in the same manner as before Booker in determining the advisory guidelines range. United States v. Alonzo, 435 F.3d 551, 553 (5th Cir.2006). This court must determine whether the sentence imposed is procedurally sound and substantively reasonable. Gall v. United States, 552 U.S. 38, 48-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). A sentence is procedurally sound if “the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. 586. This court reviews a district court’s application of the guidelines de novo and its factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir .2008). A presumption of reasonableness applies to sentences that fall within the guidelines. Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009). Any challenge to that presumption is foreclosed by United States v. Mondragon-Santiago, 564 F.3d 357, 367 & n. 7 (5th Cir.), cert. denied, — U.S.-, 130 S.Ct. 192, 175 L.Ed.2d 120 (2009). A. Ruiz argues that the district court procedurally erred when it applied the cross-reference provision in § 2Cl.l(c) to determine his" }, { "docid": "20730253", "title": "", "text": "reliance on the abuse he suffered in El Salvador. After considering that extensive argument, the district court chose to impose a forty-six month sentence, between the defendant’s and the government’s suggested results. The choice of sentence also indicates relative, responsive leniency, as the district court selected a sentence at the low end of the guidelines range and recommended Diaz Sanchez be incarcerated near to his family. In this case, we readily find that the district court weighed Diaz Sanchez’s argument for a below-guidelines sentence, but, in light of the totality of the factors, the court found the defense’s points only persuasive enough to warrant a sentence at the guidelines range’s low end. We find the district court committed no procedural error. II. Substantive Unreasonableness Diaz Sanchez argues his sentence is substantively unreasonable because it does not sufficiently account for the mitigating factors in his case. We conduct a substantive reasonableness analysis by examining the totality of the circumstances under an abuse of discretion standard. United States v. Rodriguez, 660 F.3d 231, 233 (5th Cir.2011). Our review is “highly deferential, because the sentencing court is in a better position to find facts and judge their import under the § 3553(a) factors with respect to a particular defendant.” Fraga, 704 F.3d at 439 (internal quotation marks omitted); see Gall, 552 U.S. at 51, 128 S.Ct. 586 (“The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.”). Sentences within a properly-calculated guidelines range enjoy a presumption of reasonableness. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006). “The presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir.2009). Diaz Sanchez argues his sentence is unreasonable in failing to reflect that he faced severe hardship in El Salvador, desired to return to the United" }, { "docid": "22645820", "title": "", "text": "merit. D. Reasonableness of the Sentence We review the district court’s application of the sentencing guidelines de novo. United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005). Findings of fact are accepted unless clearly erroneous. United States v. Smith, 440 F.3d 704, 706 (5th Cir.2006) (citations omitted). Ultimately, under United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we are reviewing the sentence to ensure that it is reasonable. Smith, 440 F.3d at 706. If the district court imposes a sentence within a properly calculated guideline range, we presume that the district court considered all the necessary factors, and that the sentence is reasonable. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006); United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.2005). Because we have already determined that the district court properly calculated the sentencing guideline range, and Juarez-Duarte’s eighty-seven month sentence is within that range, Juarez-Duarte must rebut the presumption of reasonableness. See Mares, 402 F.3d at 519-20. His only argument is based on the nature of his crime. Specifically, he asserts that the sentence is unreasonably long because illegal reentry into the United States after removal is no more than simple trespass. We were not impressed with that argument in United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir.2006), nor are we persuaded by it in this case. Congress considers illegal reentry into the United States subsequent to a conviction for an aggravated felony an extremely serious offense punishable by up to twenty years in prison. In light of the presumption of reasonableness afforded sentences within the Guidelines range and this congressional judgment, Juarez-Duarte’s eighty-seven month sentence is not unreasonable. III. CONCLUSION For the foregoing reasons, we AFFIRM Juarez-Duarte’s sentence. . All references are to the 2004 edition of the U.S. Sentencing Guidelines Manual (2004) (the \"Guidelines” or the \"Sentencing Guidelines”), which was used in preparing the pre-sentencing report (the \"PSR”). . While Juarez-Duarte initially requested the interpreter at the September 30, 2005, sentencing hearing to better understand the proceeding, his motion for an interpreter at his third" }, { "docid": "15268659", "title": "", "text": "two challenged statements supports the government’s position, but the prosecutor need not have identified Rash-ad by a reference to thieves. However, in light of the quantity of evidence against Rashad, this sole arguable misstep did not affect the defendant’s substantial rights and was not prejudicial. III. Reasonableness of Sentencing Rashad contends that the district court unreasonably imposed 45 months of his sentence to run consecutively to a previous sentence he received for a separate, unrelated crime. Rashad asserts that this sentence was not only unreasonable but an abuse of discretion that necessitates remand for another sentencing hearing. Under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), this Court reviews sentences for “reasonableness” measured against the factors listed in 18 U.S.C. § 3553(a). United States v. Smith, 440 F.3d 704, 706 (5th Cir.2006). Sentences within the guideline range are presumptively reasonable on appeal. United States v. Newson, 515 F.3d 374, 379 (5th Cir.2008). Reasonableness may be rebutted by showing that the sentence does not account for factors that should receive significant weight, gives significant weight to irrelevant or improper factors, or represents a clear error of judgment in balancing sentencing factors. United States v. Nikonova, 480 F.3d 371, 376 (5th Cir. 2007), abrogation on other grounds recognized by United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir.2009). When a sentence is procedurally sound, appellate review is guided by the abuse-of-discretion standard. Newson, 515 F.3d at 379 (citing Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). Rashad, however, did not object in the district court to the reasonableness of his sentence. Accordingly, we review the sentence for plain error. United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.2007). Rashad claims that the sentence imposed on him by the district court was unreasonable under 18 U.S.C. § 3553(a) and U.S.S.G. § 5G1.3. Under 18 U.S.C. § 3553(a), the court is required to consider a number of factors when imposing a sentence. Rashad claims that the court did not adequately consider the statutory factors. He contends that the court" }, { "docid": "23335751", "title": "", "text": "nature of the offense. B. Sentencing Robinson raises two issues with regard to his sentence. First, he contends that the sentencing court committed procedural error by failing to appreciate that it had discretion to consider his cooperation with the Government under 18 U.S.C. § 3553(a). Second, he contends that his sentence of 720 months is substantively unreasonable. 1. Standard of Review This Court reviews a district court’s sentencing decision in two steps. First, we must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, [or] failing to consider the § 3553(a) factors.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). This Court applies harmless error review to any procedural error. United States v. Neal, 578 F.3d 270, 274 (5th Cir.2009). Second, if the sentence is procedurally sound or if the procedural error is harmless, this Court “consider[s] the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. at 273 (citation and internal quotation marks omitted). In applying this two-step review, this Court reviews the sentencing court’s interpretation or application of the Sentencing Guidelines de novo, and its fac tual findings for clear error. Id. For the reasons below, we hold that the sentencing court’s failure to appreciate its discretion to consider Robinson’s cooperation was a procedural error and was not harmless. Therefore, we remand to allow the court to exercise its discretion to consider evidence of cooperation under § 3553(a). 2. Procedural Error Following the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), sentencing courts must conduct a two-part process-first calculating the sentence using the'now-advisory Sentencing Guidelines, then applying an individualized assessment using the factors set out in 18 U.S.C. § 3553(a). See Gall, 552 U.S. at 49-50, 128 S.Ct. 586. The first of the seven § 3553(a) factors that a sentencing court must consider is a “broad command to consider ‘the nature" }, { "docid": "22645819", "title": "", "text": "3E1.1 cmt. n.4. In this case the PSR, expressly adopted by the district court, stated that notwithstanding Juarez-Duarte’s “reasoning as to why an interpreter was used at his last two hearings, this case does not rise to the level of being an ‘extraordinary case’ in which both adjustments should apply.” We cannot say that this finding is without foundation. C. Constitutional Challenge to 8 U.S.C. § 1326(b)(2) Juarez-Duarte also argues that 8 U.S.C. § 1326(b)(2) is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Juarez-Duarte concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 228, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348, 147 L.Ed.2d 435; United States v. Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir.2005). Therefore, “we are required to follow it ‘unless and until the Supreme Court itself determines to overrule it.’ ” Izaguirre-Flores, 405 F.3d at 277-78 (citation omitted). Consequently, this argument has no merit. D. Reasonableness of the Sentence We review the district court’s application of the sentencing guidelines de novo. United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005). Findings of fact are accepted unless clearly erroneous. United States v. Smith, 440 F.3d 704, 706 (5th Cir.2006) (citations omitted). Ultimately, under United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we are reviewing the sentence to ensure that it is reasonable. Smith, 440 F.3d at 706. If the district court imposes a sentence within a properly calculated guideline range, we presume that the district court considered all the necessary factors, and that the sentence is reasonable. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006); United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.2005). Because we have already determined that the district court properly calculated the sentencing guideline range, and Juarez-Duarte’s eighty-seven month sentence is within that range, Juarez-Duarte must rebut the presumption of reasonableness. See Mares, 402 F.3d at 519-20. His only argument is based on the" }, { "docid": "23451765", "title": "", "text": "determine whether the district court committed any significant procedural error, such as: “(1) failing to calculate (or improperly calculating) the applicable Guidelines range; (2) treating the Guidelines as mandatory; (3) failing to consider the 18 U.S.C. § 3553(a) factors; (4) determining a sentence based on clearly erroneous facts; or (5) failing to adequately explain the chosen sentence, including an explanation for any deviation from the Guidelines range.” United States v. Armstrong, 550 F.3d 382, 404 (5th Cir.2008). Under this first step, “we review the district court’s interpretation or application of the sentencing guidelines de novo, and its factual findings for clear error.” United States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir.2009) (citing Armstrong, 550 F.3d at 404). Second, “if the district court’s decision is procedurally sound, we consider the substantive reasonableness of the sentence, considering the factors in 18 U.S.C. § 3553(a).” Id. (citing Armstrong, 550 F.3d at 404). “Appellate review for substantive reasonableness is highly deferential, because the sentencing court is in a better position to find facts and judge their import under the § 3553(a) factors with respect to a particular defendant.” United States v. Hernandez, 633 F.3d 370, 375 (5th Cir.2011) (citation and internal quotation marks omitted). We apply an abuse-of-discretion standard of review, and within-Guidelines sentences enjoy a presumption of reasonableness. Gutierrez-Hernandez, 581 F.3d at 254. “The presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir.2009) (citation omitted). Scott makes one procedural challenge and one substantive challenge to his sentence, and we address each in turn. A. Awarding Three Criminal-History Points Under § 4Al.l(f) Scott had four previous deadly-conduct convictions, all stemming from a single shooting spree in 1996. Each conviction earned a five-year sentence to run concurrent to the others, and the sentences were all imposed on March 30,1998. The amended PSR determined that the four sentences counted as a" }, { "docid": "23685260", "title": "", "text": "standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.2008). “The presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir.2009). “[T]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) with respect to a particular defendant,” Campos-Maldonado, 531 F.3d at 339. Jenkins first argues that his sentence is substantively unreasonable because the child pornography guideline, section 2G2.2, lacks an empirical basis and therefore fails to distinguish between the least culpable and the most culpable defendants. However, Jenkins recognizes that this argument is foreclosed by our precedent in United States v. Miller, 665 F.3d 114, 121 (5th Cir.2011), and raises the argument only to preserve the issue for Supreme Court review. Jenkins also argues that his culpability was mitigated by his personal characteristics and history, specifically his diagnosed behavioral and learning disorders as a child and his Army service in Iraq. As the transcript of the sentencing hearing demonstrates, Jenkins presented these facts to the district court for consideration. Despite these mitigating factors, the district judge noted that Jenkins “show[ed] a lot of characteristics that really concern[ed]” her. We find no reason to conclude that the district judge abused her discretion in applying and balancing the sentencing factors, and therefore hold that Jenkins has not shown his sentence to be substantively unreasonable. CONCLUSION For the reasons stated above, we AFFIRM the judgment of the district court. . In calculating the total number of images, each video is considered to contain seventy-five images. U.S.S.G. § 2G2.2 cmt. n. 4(B)(ii). . Such a sentence could have been imposed using consecutive sentencing on one or more counts." } ]

[ { "docid": "14258788", "title": "", "text": "First Amendment. Both parties have submitted extensive materials beyond the pleadings in support of their positions. Standard of Review A. Facial Attack vs. Factual Challenge Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms: a facial attack or a factual challenge. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.1995). A facial attack questions the sufficiency of the complaint while a factual challenge contests the facts upon which the subject matter depends. Id. at 1002-03. When considering a facial attack, a court “must accept the allegations of the complaint as true.” Id. at 1003. However, when considering a factual challenge, a court “may not presume the truthfulness of the complaint’s factual allegations.” Id. Here, Plaintiffs bring suit under various federal civil rights laws and Defendants contend the Court is barred from hearing these issues by the right of church autonomy arising from the First Amendment of the United States Constitution. Defendants’ therefore do not attack the sufficiency of Plaintiffs’ complaint but rather challenge the facts upon which the complaint is based. As a result, this Court may not presume as true the allegations contained in-the complaint. Id. B. Conversion of 12(b)(1) motion to Rule 56(c) motion When considering a factual challenge under Rule 12(b)(1), “[a] court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.” Id. “In such instances, a court’s references to evidence outside the pleadings does not convert the motion to a Rule 56 motion.” Id. In fact, conversion of a Rule 12(b)(1) motion is generally not allowed unless the “jurisdictional question is intertwined with the merits of the case.” Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.1987). If the two issues are intertwined, the court is required to convert the Rule 12(b)(1) motion into either a Rule 12(b)(6) motion or a Rule 56 motion for summary judgment. Holt, 46 F.3d at 1003; see also United States ex rel. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1159-60 (10th Cir.1999) (finding that because the jurisdictional question was intertwined with the merits" } ]

[ { "docid": "16131124", "title": "", "text": "XIII declares Shroyer “has on numerous occasions in public forums and in the media repeatedly stated that the county has no power to disseminate information as here-inabove alleged.” Paragraph XIV relates defendant’s statements, both in public fora and to the press, about the county’s lack of authority to spend taxpayers’ money to advance the official county point of view. The next paragraph of the complaint accuses Shroyer of threatening the county commissioners and their administrative assistants with suit holding them personally liable for the funds depleted in expounding the county’s position to the public. Plaintiff contends defendant’s accusations have occasioned “controversy and created uncertainty in the minds of the general public over the expenditure of funds and the providing of in kind contributions in the matters of official concern so designated by the county.” Complaint, 11XVII. Plaintiff accordingly seeks a judgment declaring its right under § 1-45-116 to consider the issues in the May 6, 1987 resolution to be ones of “public concern.” Complaint, Wherefore Clause, II1. Defendant removed the case to this court on May 29, 1987. The removal petition asserted the declaration sought in the complaint “will adjudicate the rights of petitioner granted pursuant to the First Amendment to the United States Constitution, the due process clause of the Fourteenth Amendment to the United States Constitution, and 42 U.S.C. section 1983.” Shortly thereafter, on June 3, 1987, defendant moved to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendant’s motion asserts the complaint fails to state a claim upon which relief may be granted because “the complaint on its face seeks to abridge defendant’s rights under the First Amendment to the United States Constitution.” Motion to Dismiss. The motion has been fully briefed and is ripe for decision. Before addressing this motion, however, I wish to elaborate on my reasons for denying plaintiff’s motion for remand to state court. That motion, filed during the pend-ency of briefing on the Rule 12(b)(6) motion, was denied by Minute Order of June 23, 1987. The remand motion was based on the “well-pleaded complaint” rule. Under that" }, { "docid": "22671447", "title": "", "text": "the plea agreement.” Majority Op. at 1324. As this court’s opinion in Rubio made clear, this court always has “jurisdiction to determine [its] own jurisdiction.” 231 F.3d at 711. Accordingly, in an appropriate case, as set out more fully below, it may be necessary to analyze whether the plea agreement is invalid and whether the matter sought to be appealed is within the scope of the waiver in order to determine whether a particular appeal presents a justiciable case or controversy and thus invokes this court’s jurisdiction. The mere fact that one or more aspects of a case are justicia-ble does not mean, however, that all aspects of the ease are justiciable. See Essence, Inc. v. City of Fed. Heights, 285 F.3d 1272, 1277 n. 4 (10th Cir.2002) (holding that although plaintiffs claims for damages were not moot, their claims for injunctive relief were moot); Smith v. Plati, 258 F.3d 1167, 1179 (10th Cir.2001) (“An issue becomes moot when it becomes impossible for the court to grant any effectual relief whatsoever on that issue to a prevailing party.” (quotation omitted) (emphasis added)). This court’s decision in Smith is particularly instructive. In Smith, the plaintiff filed a complaint in state court alleging that the defendants had violated both his First Amendment rights and state law. 258 F.3d at 1172-73. After the defendants removed the case to federal court, the plaintiff commenced a virtually identical action in state court, omitting the federal claims so that the action could not be removed to federal court. Id. After discovering the parallel state action, the district court ordered the plaintiff to dismiss it. Id. at 1173. The district court then dismissed the plaintiffs complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Id. On appeal, the plaintiff asserted that the district court had erred in dismissing his First Amendment claims and in ordering him to dismiss the parallel state action. Id. This court affirmed the dismissal of the plaintiffs First Amendment claims and then concluded that the merits resolution mooted the plaintiffs appeal of the district court’s order that plaintiff dismiss his parallel state action. Id. at" }, { "docid": "4829650", "title": "", "text": "sufficiently substantial to confer federal question jurisdiction); Willy v. Coastal Corp., 855 F.2d 1160, 1170-72 (5th Cir.1988) (wrongful discharge claim of employee who alleged that he was discharged because he had sought to prevent his employer from violating federal statutes and because he would not violate them himself did not arise under federal law where he did not independently claim that the employer had violated the federal statutes in question); Drake, 842 F.Supp. at 1411-13 (no federal question jurisdiction in wrongful termination case where federal issue, the First Amendment, was no more than support to claim that discharge was in violation of public policy). The Drake case, it turns out, is virtually identical to the case at bar. There, the defendant sought removal of a common law wrongful termination complaint because the plaintiffs, in their complaint, made “reference to the First Amendment[] as a source of public policy in support of their tort claim.” Id., 842 F.Supp. at 1406. According to the court, however, “the import of the First Amendment ... [was] simply too insubstantial to establish federal subject matter jurisdiction.” Id. at 1411. Moreover, the court continued, “the First Amendment [was] not even an essential element of the plaintiffs’ claim” since it was “not necessary to the disposition of this case,” that is, “the Court could completely ignore any reference to the First Amendment without affecting the plaintiffs’ chance of recovery because the plaintiffs could rely on the [state] Constitution, rather than the First Amendment to the United States Constitution, as their source of public policy.” Id. at 1412. Here, as in Drake, Plaintiffs right to relief in Count I does not necessarily depend on resolution of a substantial question of First Amendment or other federal law. Accordingly, this court, as in Drake, has little choice but to find the absence of federal ingredient jurisdiction and, hence, remand the matter to state court. B. Plaintiff’s Request for Sanctions Citing Fed.R.Civ.P. 11(b), Plaintiff also argues that Defendant’s removal “was an intentional abuse of process” warranting monetary sanctions. The court disagrees. For one thing, Plaintiffs request for sanctions, made at the" }, { "docid": "1033901", "title": "", "text": "law if its ‘well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law.’ ” Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir.1994) (quoting Franchise Tax Board v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). Thus, even though a plaintiff asserts only claims under state law, federal-question jurisdiction may be appropriate if the state-law claims implicate significant federal issues. Over the last century, several principles have developed that guide federal courts in determining whether they have jurisdiction over a state-law claim. First, the well-pleaded complaint rule requires that “the federal question giving rise to jurisdiction must appear on the face of the complaint.” Karnes v. Boeing Co., 335 F.3d 1189, 1192 (10th Cir.2003). This rule “makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). The well-pleaded complaint rule also means that federal-questidn jurisdiction may not be predicated on a defense that raises federal issues. Merrell Dow, 478 U.S. at 808, 106 S.Ct. 3229. Therefore, a “plaintiffs anticipation of a defense based on federal law is not enough to make the case ‘arise under’ federal law[;][n]or is a defendant’s assertion of a defense based on federal law ... a proper basis for removal.” Schmeling v. NORDAM, 97 F.3d 1336, 1339 (10th Cir.1996). Further, a plaintiff may not circumvent federal jurisdiction by omitting federal issues that are essential to his or her claim. See id. at 1345 n. 2. Even if a federal question appears on the face of a well-pleaded complaint, federal jurisdiction is not automatic. It is by now axiomatic that “federal jurisdiction demands not only a contested federal issue, but a substantial one, indicating a serious federal interest in claiming the advantages thought to be inherent in a federal forum.” Grable & Sons, 125 S.Ct. at 2367. Finally, even when the state" }, { "docid": "4829651", "title": "", "text": "to establish federal subject matter jurisdiction.” Id. at 1411. Moreover, the court continued, “the First Amendment [was] not even an essential element of the plaintiffs’ claim” since it was “not necessary to the disposition of this case,” that is, “the Court could completely ignore any reference to the First Amendment without affecting the plaintiffs’ chance of recovery because the plaintiffs could rely on the [state] Constitution, rather than the First Amendment to the United States Constitution, as their source of public policy.” Id. at 1412. Here, as in Drake, Plaintiffs right to relief in Count I does not necessarily depend on resolution of a substantial question of First Amendment or other federal law. Accordingly, this court, as in Drake, has little choice but to find the absence of federal ingredient jurisdiction and, hence, remand the matter to state court. B. Plaintiff’s Request for Sanctions Citing Fed.R.Civ.P. 11(b), Plaintiff also argues that Defendant’s removal “was an intentional abuse of process” warranting monetary sanctions. The court disagrees. For one thing, Plaintiffs request for sanctions, made at the end of her remand motion, does not meet the stringent procedural requirements for Rule 11 relief. See, e.g., Fed.R.Civ.P. 11(c)(2) (providing that such a motion “must be made separately from any other motion[,] ... must describe the specific conduct that allegedly violated Rule 11(b) ... [and] must be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service”). More importantly, however, the court does not deem Defendant’s federal ingredient jurisdiction theory to have been frivolous. See Fed.R.Civ.P. 11(b) (indicating that Rule 11 sanctions ought not be levied against those who make “legal contentions [that] are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law”). Accordingly, the court will deny the sanctions portion of Plaintiffs remand motion. C. Defendant’s Motion to Dismiss “Because federal courts are powerless to act in the absence of subject matter jurisdiction,” Lee-Barnes v. Puerto Ven Quarry Corp., 513 F.3d 20, 24 (1st Cir.2008), and because this court believes" }, { "docid": "5144741", "title": "", "text": "not fatal in every case, however. See, e.g., Wiles v. Capitol Indem. Corp., 280 F.3d 868, 871 (8th Cir.2002) (failure to cite § 1441 as grounds for removal did not deprive court of removal jurisdiction because § 1441 jurisdictional requirements were met). In this case the defendants cited § 1441, the proper statutory basis for removal, and alleged facts from which the district court could determine that removal was appropriate. The district court did not commit procedural error in denying the motion to remand. As to the merits of removal, Pet Quarters claims that its complaint presents no substantial federal question justifying removal. Federal question jurisdiction is available only where (1) the right to relief under state law depends on the resolution of a substantial, disputed federal question, and (2) the exercise of jurisdiction will not disrupt the balance between federal and state jurisdiction adopted by Congress. See Grable & Sons Metal Prods., Inc. v. Dane Eng’g & Mfg., 545 U.S. 308, 313-14, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005). Removal based on federal question jurisdiction is governed by the well pleaded complaint rule: jurisdiction is established only if a federal question is presented on the face of the plaintiffs properly pleaded complaint. Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir.2005). Federal jurisdiction may be found from a complaint if adjudication of a state claim would turn on a federal constitutional or other important federal question, even where only state law issues have been pled. See Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 808-09, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). If even one claim in the complaint involves a substantial federal question, the entire matter may be removed. See Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 9, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). Pet Quarters alleges that its state law claims do not depend on resolution of any federal question. It argues that federal law is implicated only as part of the defendants’ preemption defense, which is not a proper basis for removal. See Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust" }, { "docid": "15112410", "title": "", "text": "charged context” did not convert what was “essentially an ordinary tort suit into a non-justiciable political question.” Id. Second, the Circuit Court concluded that all six of the considerations put forth in Baker, the leading Supreme Court case on the issue, militated against applying the political question doctrine. Id. Most importantly, Klinghoffer noted that common law tort claims are “constitutionally committed” to the judicial branch. Id. Moreover, the Circuit Court cited ATA § 2333, under which Plaintiffs have sued in the instant case, and pointed out that Congress had “expressly endorsed” these types of lawsuits. Id. at 49-50. In one of the many similar cases now pending in federal court (all involving the same lawyers), a federal district court in Rhode Island, citing Klinghoffer, rejected arguments from the PA and PLO that the case was non-justiciable. See Ungar I, 228 F.Supp.2d at 44-47. Defendants here fail to distinguish (or even cite) Klinghoffer or Ungar I. Accordingly, the Court concludes that the case will not be dismissed on the alleged ground that it raises non-justicia-ble political questions. III. ORDER For the reasons discussed above, it is hereby ORDERED that the motion of defendants to dismiss the claims asserted by plaintiffs in this action as against the Palestinian Authority and the Palestine Liberation Organization on the ground that the Court lacks subject matter jurisdiction is DENIED; and it is finally ORDERED that the parties appear at a conference with the Court on March 12, 2004 at 2:30 p.m. to discuss the status of the case and further proceedings in light of this Order. SO ORDERED. .Defendants also seek to dismiss on the ground that this Court lacks personal jurisdiction over them. To address this defense, the Court must first resolve certain outstanding issues related to the appropriateness and scope of jurisdictional discovery Plaintiffs have demanded. Upon a determination of those matters, the Court will turn to the question of personal jurisdiction in a separate Decision and Order. . The factual recitation set forth below is taken from the complaint (\"CompL”) filed in this action. As appropriate, the Court also refers to documents" }, { "docid": "17609580", "title": "", "text": "door for FAPR to remove the case to federal court. See id.; see also Ching, 921 F.2d at 14. The Chessplayers argue the first case did not pose a “substantial” federal question, and any mention of the United States Constitution was merely an alternative legal theory to their state law claims. These arguments are unavailing as the Ches-splayers ignore the crucial fact that their first request posed a direct federal question. An investigation into whether a cause of action asserts a “substantial” federal question is relevant only for state-law causes of action containing embedded federal questions. Templeton, 352 F.3d at 36 (stating that if the complaint does not allege a federal cause of action, the inquiry is then into “whether some element of the claim depends on the resolution of a substantial, disputed question of federal law”). The Chessplayers’ first request alleged violations of their rights guaranteed by the Constitution of the United States, which constituted a “direct federal question” as “a claim premised on the United States Constitution,” so we need not continue our analysis to the “substantial” question query. R.I. Fishermen’s Alliance, 585 F.3d at 48; see also Templeton, 352 F.3d at 36. Next citing a handful of out-of-circuit cases and one Supreme Court case, the Chessplayers argue federal jurisdiction will not extend to cases where the federal question appears only in an alternative argument for relief. But this standard is applied to cases that assert causes of action created by state law, not direct federal question cases. Unlike the plaintiffs in the cases they cite, the Chessplayers asserted an explicit federal question, clear on the face of their first complaint, not a state-law cause of action containing an embedded federal question. While the Chessplayers urge us to apply these inquiries to their first case, we cannot; the “substantial” element and “alternative theory” analyses are inapplicable in the present ease because the Chessplayers pled in part an explicit federal question under the United States Constitution. Accordingly, we conclude the district court had subject matter jurisdiction over the Chessplayers’ first request for injunction, and thus could exercise supplemental jurisdiction" }, { "docid": "17609586", "title": "", "text": "And so, to remove the second case pursuant to § 1441, it must have posed, on its face, a direct federal question or a state-law cause of action that necessarily turned on some construction of federal law. See R.I. Fishermen’s Alliance, 585 F.3d at 48; Templeton, 352 F.3d at 36. Unlike the first complaint, the Ches-splayers’ second request did not assert claims “premised on the United States Constitution.” R.I. Fishermen’s Alliance, 585 F.3d at 48. No elements of their state law claims required “resolution of a substantial, disputed question of federal law.” Templeton, 352 F.3d at 36. They expressly waived any federal claims in their second request. As such, the district court was mistaken in' its assertion that the second case made identical claims to the first. And therefore no basis for federal subject matter jurisdiction existed, and the original jurisdiction required for removal pursuant to § 1441 was absent. Consequently, we find the district court erroneously concluded it had jurisdiction over the second case and so we remand it to the district court with instructions to remand to the Commonwealth court. We proceed to our review of the last claims. B. Summary Judgment To remind the reader, FAPR’s motion for summary judgment addressed the Chessplayers’ initial request for a preliminary injunction. In their opposition to FAPR’s motion, the Chessplayers clarified their position: they were now seeking a permanent, not a preliminary, injunction and they claimed entitlement to summary judgment on that request (the ultimate claim in their consolidated cases). In ruling on FAPR’s motion for summary judgment the district court found no state action and dismissed all of the Chessplayers’ claims premised on such a theory under the United States and Puerto Rico constitutions. The court also dismissed all claims based on Puerto Rico law. Citing Finn v. Beverly Country Club, 289 Ill. App.3d 565, 225 Ill.Dec. 528, 683 N.E.2d 1191, 1193 (1997), the district court noted that the conduct of a voluntary association is subject to judicial review only when it fails to exercise powers consistent with its own rules. It then concluded that after reviewing the submitted" }, { "docid": "16131127", "title": "", "text": "complaint rule that a plaintiff may not defeat removal by omitting to plead necessary federal questions in a complaint.” Franchise Tax Board, at 22, 103 S.Ct. at 2853. Where state law creates the cause of action, “original federal jurisdiction is unavailable unless it appears that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims, or that one ... claim is ‘really’ one of federal law.” Id. at 13, 103 S.Ct. at 2848 (emphasis added). Thus, “[wjhere the essential nature of plaintiffs claim is federal, because of preemption or otherwise, the case may be removed regardless of the manner in which the claim was characterized in the complaint.” Muenchow v. Parker Pen Co., 615 F.Supp. 1405, 1410 (W.D.Wis.1985). See 14A Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3722, at 273-75 (West 1985) (“[i]f the only remedy available to plaintiff is federal, because of preemption or otherwise, and the state court must necessarily look to federal law in passing on the claim, the case is removable regardless of what is in the pleading”). The case at bar poses a perfect example of such artful pleading. The complaint does not seek an injunction muzzling defendant or otherwise restraining him from commenting further, or instituting lawsuit on, the propriety of the plaintiff's action in earmarking public funds for advocacy of plaintiffs political platform. If the complaint did seek such direct relief against defendant, then the First Amendment would be plainly implicated on the face of the complaint. Federal jurisdiction would clearly lie. To avoid this possibility, the complaint is carefully couched solely in terms of interpretation of § 1-45-116. The court is asked to rule, in a factual vacuum, on the validity of those actions of plaintiff to which defendant has made public objection. In taking this latter tack, plaintiff effectively, albeit indirectly, hopes to nullify defendant’s vociferous advocacy by obtaining an abstract court declaration of the legality of the county’s position. In sum, plaintiff seeks to muzzle defendant by haling him into court and requiring him to defend a position" }, { "docid": "21827111", "title": "", "text": "GILMAN, J., delivered the opinion of the court in which SUHRHEINRICH, J., joined. McKEAGUE, J. (pp. 450-55), delivered a separate dissenting opinion. OPINION RONALD LEE GILMAN, Circuit Judge. This case arises out of the drinking-water crisis in Flint, Michigan. The Plaintiffs are residents of the City of Flint who represent themselves and seek to represent a class of similarly situated individuals. They allege that they have been harmed since April 2014 by the toxic condition of the Flint water supply. The Plaintiffs filed suit against several City and State officials in the Genesee County Circuit Court, asserting various state-law tort claims. Complete diversity of citizenship is lacking, and no federal question is presented on the face of the complaint. Nevertheless, four of the State officials who are present or former employees of the Michigan Department of Environmental Quality (the MDEQ Defendants) removed the action from the state court to federal court on two grounds. They first invoked the “federal-officer removal” provision under 28 U.S.C. § 1442(a)(1), contending that all of their conduct in question was performed under the supervision and direction of the United States Environmental Protection Agency (the EPA). Second, the MDEQ Defendants contend that the Plaintiffs’ claims necessarily implicate a substantial federal issue that merits federal-question jurisdiction under 28 U.S.C. § 1441. The Plaintiffs objected to removal. They filed a motion seeking to have the district court remand the case back to the state court, which the district court granted. On appeal, the MDEQ Defendants ask us to reverse the remand order. For the reasons set forth below, we instead AFFIRM the judgment of the district court. I. BACKGROUND A. Factual background Prior to April 2014, Flint had obtained its drinking water under contract with the City of Detroit. That month Flint switched its source of drinking water to the Flint River in order to save money. In January 2016, several of the Plaintiffs filed a class-action lawsuit in the Gen-esee County Circuit Court. The complaint alleged state-law claims of gross negligence, fraud, assault and battery, and intentional infliction of emotional distress. According to the complaint, the MDEQ" }, { "docid": "16131128", "title": "", "text": "is removable regardless of what is in the pleading”). The case at bar poses a perfect example of such artful pleading. The complaint does not seek an injunction muzzling defendant or otherwise restraining him from commenting further, or instituting lawsuit on, the propriety of the plaintiff's action in earmarking public funds for advocacy of plaintiffs political platform. If the complaint did seek such direct relief against defendant, then the First Amendment would be plainly implicated on the face of the complaint. Federal jurisdiction would clearly lie. To avoid this possibility, the complaint is carefully couched solely in terms of interpretation of § 1-45-116. The court is asked to rule, in a factual vacuum, on the validity of those actions of plaintiff to which defendant has made public objection. In taking this latter tack, plaintiff effectively, albeit indirectly, hopes to nullify defendant’s vociferous advocacy by obtaining an abstract court declaration of the legality of the county’s position. In sum, plaintiff seeks to muzzle defendant by haling him into court and requiring him to defend a position he asserts in public. Only the deliberately ignorant would consider involuntary submission to litigation to be less intrusive into the sphere of constitutional freedom than meek submission to a direct order. Like the auto da fe, litigation lasts longer and is more painful than mere silence. By adopting this strategy, plaintiff has sailed its ship of state into Odyssean waters. In avoiding the Charybdis of the First Amendment, the Board of County Commissioners drafted a complaint which has navigated into Scyllan clutches by failing to state a case or controversy. Under Colo.Rev.Stat. § 13-51-101 et seq., One whose rights or status may be affected by statute is entitled to have any question of construction determined provided that a substantial controversy between adverse parties or sufficient immediacy to warrant the issuance of a declaratory judgment exists.... Thus, one whose rights are favorably affected by a statute is entitled to seek a judicial determination thereof so long as the court is provided with a properly adverse context. Silverstein v. Sisters of Charity of Leavenworth Health Services Corporation," }, { "docid": "11007285", "title": "", "text": "F.2d 1375, 1378-79 (9th Cir.1988) (\"when an appeal from an order denying a motion to remand is joined with an appeal from an order granting or denying an injunction, we will review the order denying the motion to remand at that time and not wait for final judgment or certification\"). . Thomas Hobson (1544-1631), an English liveryman, required his customers to take either the horse nearest the door or none at all. . In support of plaintiff's claim that he faced a possible dismissal of his complaint, we note the district court's comment to plaintiff's counsel at the hearing on plaintiff's motions (which occurred prior to the amendment of the complaint): \"your motion for a summary dismissal to be remanded will be denied. I do not find this, from your position in the pleadings, to be a Workmens’ Comp case. I do find it to be a conduct violations case not properly before the court.\" Joint Appendix at 145 (emphasis added). .We strenuously caution, however, that plaintiff would have been well-advised to seek a stay of proceedings in the district court from this court pursuant to Fed.R.App.P. 8(a). While we hold that his failure to seek such relief from our court did not render his amendment of the complaint voluntary in the present case, such an omission in future cases may not result in the same conclusion. . In his original \"Motion for a Temporary Restraining Order and Preliminary Injunction,” filed in Missouri state court, plaintiff sought, in his prayer for relief, an order from the state court enjoining defendant from, among other things, \"disciplining or reprimanding Plaintiff except upon good cause as defined in the applicable collective bargaining agreement, and upon notice to the Court of the basis of such action.” Joint Appendix at 19. . In Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), the issue was whether § 301 preemption provided a proper defense, not whether it was a basis for removal. The case had been removed to federal district court on the basis of diversity. Id." }, { "docid": "23545655", "title": "", "text": "that the violation of Giles’s constitutional rights was a result of a fixed policy of the County. The liability of the County has thus been established as a matter of law. The remaining questions are the amount of damages to which Giles is entitled and whether injunctive or declaratory relief should be granted. Giles’s request for injunctive and declaratory relief does not raise the issue of standing considered by the Supreme Court in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). In Lyons the plaintiff’s damages claim had been severed from his claim for injunctive relief. 461 U.S. at-n. 6, 103 S.Ct. at 1667 n. 6. The Court was thus required to consider whether his request for an injunction, standing alone, presented a case or controversy. Gonzales v. City of Peoria, 722 F.2d 468, 481-82 (9th Cir.1983). In contrast, it is clear that Giles has standing to bring her damages action, and there is no question that a live controversy exists between her and the County. The only question in her case is whether relief in addition to damages is appropriate. See id. On appeal, Giles asks that her claim for injunctive relief be dismissed. However, she continues to seek a declaratory judgment. Whether declaratory relief is necessary and appropriate to prevent future violations of constitutional rights is a matter to be considered in the first instance by the district court. We therefore remand Giles’s claim for declaratory relief for consideration in light of the policies expressed in Lyons and Gonzales. REVERSED and REMANDED. . Giles indicates that the parking tickets' were issued to her husband and that she had no knowledge of them. . As the district court pointed out, it is not necessary to consider whether the County’s policy was constitutional as applied to body cavity searches since Giles’ body cavities were not searched. 559 F.Supp. at 228. However, since we hold that reasonable individualized suspicion is required before a strip search may be lawfully conducted, it is obvious that even more intrusive body cavity searches would require no less." }, { "docid": "14869734", "title": "", "text": "textually demonstrable constitutional commitment of these issues to the political branches. Furthermore, it would be impossible for this Court to grant the relief requested by Plaintiff without disturbing a judgment of the legislative and executive branches that has remained untouched by the federal courts for over a century. Since its annexation in 1898 and admission to the Union as a State in 1959, Hawaii has been firmly established as part of the United States. The passage of time and the significance of the issue of sovereignty present an unusual need for unquestioning adherence to a political decision already made. Plaintiff argues that he is not challenging the legality of the State of Hawaii and his conviction but is merely asserting a claim for a violation of the Liliuokalani Assignment under the Alien Tort Statute, 28 U.S.C. § 1350. However, in order to find that Defendants have violated the Liliuokalani Assignment as alleged by Plaintiff — or even to conclude that Plaintiff is an alien capable of bringing claims under the Alien Tort Statute rather than a U.S. citizen — the Court would have to determine that the annexation of Hawaii by the United States was unlawful and void. As described above, that is a political question that this Court cannot decide. The fact that the answer might be gleaned through a straightforward analysis of federal and international law does not matter; “[t]he political question doctrine deprives federal courts of jurisdiction, based on prudential concerns, over cases which would normally fall within their purview.” Lin, 561 F.3d at 506; see id. (“We do not disagree with Appellants’ assertion that we could resolve this case through treaty analysis and statutory construction; we merely decline to do so as this ease presents a political question which strips us of jurisdiction to undertake that otherwise familiar task.”) (internal citations omitted). Therefore, the Court must dismiss Plaintiffs First Amended Complaint for lack of subject matter jurisdiction. B. Plaintiffs Proposed Supplemental Complaint Does Not Assert a Justiciable Claim Plaintiff has filed a Motion for Leave to File Supplemental Complaint, which is opposed by Defendants. Pursuant to" }, { "docid": "7437017", "title": "", "text": "to satisfy the requirements of federal diversity jurisdiction and there is no basis for federal question jurisdiction. The parties have briefed the motions and presented arguments at a hearing on November 17, 2000. These matters are ripe for determination. Because the issue of subject matter jurisdiction must be determined at the outset of a case, the Court will consider plaintiffs motion to remand first. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101, 118 S.Ct. 1003, 1016, 140 L.Ed.2d 210 (1998) (federal court may not resolve contested issues of law when its jurisdiction is in doubt). II. AT & T removed plaintiffs’ state court action on the grounds of diversity of citizenship and federal question jurisdiction. Although plaintiffs did not plead a specific amount of damages in their state court petition, AT & T maintains that the amount in controversy clearly exceeds $75,000 because plaintiffs seek “$100 million in compensatory, nominal and punitive damages in their virtually identical, previously filed Federal Complaint.” (Notice of Removal ¶ 10). AT & T further contends that plaintiffs’ state law claims are preempted by the Federal Communications Act and, as such, can be removed to federal court. (Id. ¶ 14). Plaintiff argues that removal is not proper under either theory and seeks an order remanding this ease to state court. A. A case may be removed to federal court if it is “founded on a claim or right arising under the Constitution, treaties or laws of the United States ...” 28 U.S.C. § 1441(b). The analysis of this statute is controlled by the well-pleaded complaint rule. This rule provides that a “properly pleaded complaint governs the jurisdictional determination and if, on its face, such a complaint contains no issue of federal law, then there is no federal question jurisdiction.” Aaron v. National Union Fire Insurance Co., 876 F.2d 1157, 1160-61 (5th Cir.1989), cent. denied, 493 U.S. 1074, 110 S.Ct. 1121, 107 L.Ed.2d 1028 (1990); Flowerette v. Heartland Healthcare Center, 903 F.Supp. 1042, 1044 (N.D.Tex.1995). Stated differently, removal if proper is the complaint establishes: (1) that federal law creates the cause" }, { "docid": "17711679", "title": "", "text": "103 S.Ct. at 2848; accord Hunter, 746 F.2d at 643 n. 5. Since, as we find hereafter, resolution of the first issue is dispositive, we need not decide the issues of the sub-stantiality and disputedness of the federal issue posed here. The dispositive issue here is whether the federal issue would appear as a necessary element of a well-pleaded complaint filed by any proper party in a coercive action to enforce the rights in dispute. See Franchise Tax, 463 U.S. at 19 & n. 19, 103 S.Ct. at 2851 & n. 19; Skelly Oil, 339 U.S. at 672, 70 S.Ct. at 879. In this case, Long Beach is the only party claiming that its legal interests have been violated as the result of the oil companies’ withholding of payments Long Beach alleges are due under the Contractors’ Agreement. Long Beach, therefore, is the only party in a position to file a coercive action over the matters in controversy. Thus, we must ascertain whether a well-pleaded complaint filed by Long Beach to enforce its contractual rights would raise, as a necessary element of its claim, the characterization of the WPT as a matter of federal law. The resolution of this issue depends on a fair reading of the two declaratory judgment complaints as to the nature of the parties’ dispute. In this case, we analyze the federal jurisdictional issue by determining whether any hypothetical coercive suit by the declarato ry judgment defendant — Long Beach— would necessarily present a federal question. We begin by examining the declaratory judgment complaints to determine whether the WPT’s interpretation presents a substantial federal question on the merits. Union’s complaint alleges that Long Beach disagreed with Union’s practice of charging the amounts Union paid under the WPT against the Net Profits Account established under the Contractors’ Agreement. Union therefore sought a declaratory judgment (1) that the WPT is an excise tax (chargeable against the net profit account), and (2) that Union’s accounting methods did not violate the Contractors’ Agreement. Shell California’s complaint contains no significantly different allegations or claims for relief. We conclude that no federal" }, { "docid": "3739787", "title": "", "text": "this court must look for plausibility in the complaint.” Id. (internal quotations omitted). “Under this standard, a complaint must include ‘enough facts to state a claim to relief that is plausible on its face.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). “The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008). Mootness In addition to a request for nominal damages, Corder’s complaint seeks a declaration that the School District violated Corder’s First Amendment and Equal Protection rights, and a declaration that the School District’s unwritten policy of reviewing student graduation speeches is unconstitutional. Corder’s complaint also seeks a permanent injunction against enforcement of that unwritten policy. The School District argued before the district court that Corder’s claims for declaratory and injunctive relief are moot, and the district court agreed. Although we have jurisdiction over appeals from all final decisions of federal district courts, 28 U.S.C. § 1291, we have no subject matter jurisdiction over a case if it is moot. Unified Sch. Dist. No. 259, Sedgwick County, Kan. v. Disability Rights Ctr. of Kan., 491 F.3d 1143, 1146-47 (10th Cir.2007). “Constitutional mootness doctrine is grounded in the Article III requirement that federal courts may only decide actual, ongoing cases or controversies.” Seneca-Cayuga Tribe v. Nat’l Indian Gaming Comm’n, 327 F.3d 1019, 1028 (10th Cir.2003) (internal quotations and alteration omitted). “It is well established that what makes a declaratory judgment action a proper judicial resolution of a case or controversy rather than an advisory opinion — is the settling of some dispute which affects the behavior of the defendant toward the plaintiff. Hence, this court has explained that a plaintiff cannot maintain a declaratory or injunctive action unléss he or she can demonstrate a good chance of being likewise injured by the defendant in the future.” Green v. Branson, 108 F.3d 1296, 1299-1300 (10th Cir.1997) (internal quotations, citations and alterations omitted). We review de novo the question of" }, { "docid": "3424047", "title": "", "text": "Court of Appeals for remand of this issue, or in the event that the Court of Appeals remands the issue sua sponte before reviewing it on its merits. The Opinion The factual background of this case is set forth in the Opinion, familiarity with which is assumed. The First Amended Complaint sought to adjust the status of Plaintiffs— Chinese who had entered the United States illegally—to that of lawful permanent resident pursuant to the Chinese Student Protection Act of October 9, 1992, Pub.L. No. 102-404, 106 Stat.1969-1971 (the “CSPA”); see 8 U.S.C. § 1255. Plaintiffs based their claims for relief on two arguments: that the I.N.S. had incorrectly interpreted the CSPA to require legal entry—essentially a statutory construction argument—and that an I.N.S. directive known as Cable 5 had violated an Executive Order. See Chan v. Reno, 916 F.Supp. at 1295-96. The Opinion granted the motion of Defendant Janet Reno, United States Attorney General (“the Government”), to dismiss Plaintiffs’ First Amended Complaint, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, because Plaintiffs had failed to exhaust their administrative remedies. Id. at 1297-1300. Having dismissed the First Amended Complaint, the Opinion thus denied as moot Plaintiffs’ motion for summary judgment on that complaint. Id. at 1300. In dismissing the First Amended Complaint, the Opinion relied heavily on Howell v. I.N.S., 72 F.3d 288 (2d Cir. Dec. 20, 1995), which had been filed by the Court of Appeals for the Second Circuit after briefing and oral argument by the parties to this action. Howell held, inter alia, that a party need not exhaust its administrative remedies prior to seeking relief in a federal district court when: (1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a plaintiff has raised a substantial constitutional question. Chan, 916 F.Supp. at 1299 (citing Howell, 72 F.3d at 291-92). The Opinion found that Plaintiffs would, upon commencement of deportation proceedings, have the opportunity for review by an immigration judge and the Board of Immigration" }, { "docid": "4343561", "title": "", "text": "federal claims all involve state questions between residents of North Carolina, the interests of justice would be best served by the matters being remanded to the appropriate state courts); Wright v. Associated Ins. Co. Inc., 29 F.3d 1244, 1251-52 (7th Cir.1994). See Razor v. General Motors Corp., 585 F.Supp. 621 (E.D.Mich.1984) (finding that retention of supplemental jurisdiction over a claim based on Michigan law was inappropriate, considering no significant expenditures of judicial resources were made, and remand to state court would facilitate a more definitive reading of state law inasmuch as there was no substantial amount of Michigan authority interpreting applicable provisions of the relevant state law). In the present case, plaintiffs complaints, original and amended, seek only declaratory judgments. Plaintiff does not currently retain any control over defendants’ businesses. Although plaintiffs actions with regard to the TROs indicate that plaintiff may seek to close or abate the businesses in the future, plaintiff does not presently seek any relief in the form of closure, seizure, or other physical control over defendants’ businesses. Any consideration regarding the State’s future behavior is entirely speculative. An action for declaratory judgment is not an action for relief, but rather is an action asking the court to answer questions regarding the potential application of law to a given set of facts. It is particularly appropriate that a state court is given the opportunity to interpret the application of its own laws, and to resolve any unsettled questions concerning those laws. Underlying Issues of Federal Policy Defendants argue that, even without the RICO claims, the Amended Complaint presents important constitutional issues. Specifically, defendants argue First Amendment rights and judicial integrity are implicated by the State’s application of the Tennessee Nuisance Statute, in light of the three judge federal court panel decision in Airways Theater, Inc. v. Canale, 366 F.Supp. 343 (W.D.Tenn.1973). Defendant also argues that numerous First Amendment issues are at issue in this case because “the state is seeking to close a business premises where constitutionally protected activities are conducted.” Defs.’ Response 2, at 4. Defendant maintains that the existence of these federal issues renders" } ]

[ { "docid": "862810", "title": "", "text": "an uproar in Pleasant Grove. A referendum was held, which showed an overwhelming resistance to the proposed apartment complex. The upshot of this referendum was the passage of a new city Ordinance, no. 216, which forbade the construction of new apartments. The city then prohibited the plaintiffs from proceeding with the construction. The district court held that the implementation of city Ordinance no. 216 was arbitrary and capricious, and was specifically intended to prevent the plaintiffs from exercising their building permit. As applied to the plaintiffs, Ordinance no. 216 was found to be a confiscatory measure and violative of the plaintiffs’ fourteenth amendment rights to due process. Further, the ordinance bore no substantial relationship to legitimate concerns for health, safety, welfare, or the general well-being of the community. We agree. This court perceives the enactment of Ordinance no. 216 to be a bald attempt to revoke an already authorized building permit. Findings by the trial court indicate that this action was a confiscatory measure. Under Maher v. City of New Orleans, 516 F.2d 1051, 1065, rehearing denied, 521 F.2d 815 (5th Cir. 1975), cert. denied, 426 U.S. 905, 96 S.Ct. 2225, 48 L.Ed.2d 830, if a regulatory undertaking is confiscatory in nature, it is a taking. Further, the city’s purpose in enacting the measure was not rational. A developer has its right to be free of arbitrary or irrational zoning standards. Arlington Heights v. Metropolitan Housing Development, 429 U.S. 252, 263, 97 S.Ct. 555, 562, 50 L.Ed.2d 772 (1977). Additionally, if a zoning ordinance is “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare,” it must be struck down, Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926). Given the findings of the court below, the application of city Ordinance no. 216 to the plaintiffs was unconstitutional. The defendant claims that under the zoning ordinance in effect at the time the permit was issued (city Ordinance no. 177), the permit to construct the apartments should not have been granted. The ordinance in question was" } ]

[ { "docid": "18604699", "title": "", "text": "cases involving claims of inverse condemnation. Sinaloa Lake Owners Ass’n v. City of Simi Valley, 864 F.2d 1475, 1478 (9th Cir.1989) (citing Hall v. City of Santa Barbara, 833 F.2d 1270, 1274 (9th Cir.1986), cert. denied, — U.S. -, 108 S.Ct. 1120, 99 L.Ed.2d 281 (1988)). Whether Moore’s Complaint States a Claim For Compensation [3] The fifth amendment guarantees that private property shall not “be taken for public use without just compensation.” Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). It is established doctrine that “ ‘while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.’ ” First Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304, 316, 107 S.Ct. 2378, 2386, 96 L.Ed.2d 250 (1987) (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922)). A taking may be found without any physical invasion where “ ‘a public entity acting in furtherance of a public project directly and substantially interferes with property rights and thereby significantly impairs the value of property....’” Martino v. Santa Clara Water Dist., 703 F.2d 1141, 1147 (9th Cir.), cert. denied, 464 U.S. 847, 104 S.Ct. 151, 78 L.Ed.2d 141 (1983) (quoting Richmond Elks’ Hall Ass’n v. Richmond Redevelopment Agency, 561 F.2d 1327, 1330 (9th Cir.1977)). The application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests, or denies an owner the economically viable use of his land. Agins, 447 U.S. at 260, 100 S.Ct. at 2141 (citations omitted). The governmental action that results in a taking of property necessarily implicates the “ ‘constitutional obligation to pay just compensation.’ ” First Evangelical, 482 U.S. at 315, 107 S.Ct. at 2386 (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (I960)). The Supreme Court recently has held that compensation must be paid for the temporary regulatory taking of all of a person’s property, until the time the regulation is invalidated by" }, { "docid": "15245122", "title": "", "text": "summary judgment holding section 14 unconstitutional, insofar as it rested on article I, section 10, cannot stand. IV. The Taking Clause It has long been settled that “ ‘since the adoption of the Fourteenth Amendment compensation for private property taken for public uses constitutes an essential element in ‘due process of law,’ and that without such compensation the appropriation of private property to public uses, no matter under what form of procedure it is taken, would violate the provisions of the Federal Constitution.’ ” Chicago, B. & Q.R.R. v. Chicago, 166 U.S. 226, 239, 17 S.Ct. 581, 585, 41 L.Ed. 979 (1897), quoting Scott v. City of Toledo, 36 F. 385, 396 (C.C.N.D.Ohio 1888). It has also been long settled that not every governmental regulation of the uses to which private property may be put is a taking for public use. See Miller v. Schoene, 276 U.S. 272, 277-80, 48 S.Ct. 246, 72 L.Ed. 568 (1928) (statute authorizing destruction of diseased cedar trees); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 386-95, 47 S.Ct. 114, 117-21, 71 L.Ed. 303 (1926) (industrial zoning regulation). The line between permissible police power regulations and impermissible uncompensated takings for public use has not always been easy to discern. In three recent decisions, the Court rejected challenges alleging takings without just compensation. See Agins v. City of Tiburon, 447 U.S. 255, 260-63, 100 S.Ct. 2138, 2141-42, 65 L.Ed.2d 106 (1980), Penn Central Transp. Co. v. New York City, 438 U.S. 104, 122-38, 98 S.Ct. 2646, 2658-66, 57 L.Ed.2d 631 (1978); Goldblatt v. Town of Hempstead, 369 U.S. 590, 592-94, 82 S.Ct. 987, 989-90, 8 L.Ed.2d 130 (1962). In Loretto v. Teleprompter Manhattan C.A.T.V. Corp., 458 U.S. 419, 425-41, 102 S.Ct. 3164, 3170-79, 73 L.Ed.2d 868 (1982), in contrast, the Court sustained such a challenge. The district court concluded that Loretto, rather than Agins, Penn Central and Goldblatt, controlled. We disagree. A. The difficulty which sometimes arises in determining when an uncompensated-taking analysis is appropriate arises out of the failure of courts and litigants to recognize that there is no federal constitutional prohibition against" }, { "docid": "4787155", "title": "", "text": "S.Ct. 3108, 3116-17, 3122-23, 87 L.Ed.2d 126 (1985). First, a plaintiff may assert that a zoning or other regulation may be so restrictive as to deny him all reasonable beneficial use of his property and thus has the same effect as a taking of the property for public use. Under this theory, such a taking would arguably require payment of just compensation under the fifth amendment. Alternatively, such a regulation could be viewed as violating the fourteenth amendment. This theory posits that regulation that goes so far that it has the same effect as a taking by eminent domain is an invalid exercise of the police power, violative of the Due Process Clause of the Fourteenth Amendment. Should the Government wish to accomplish the goals of such regulation, it must proceed through the exercise of its eminent domain power, and, of course, pay just compensation for any property taken. The remedy for a regulation that goes too far, under the due process theory, is not \"just compensation,\" but invalidation of the regulation, and if authorized and appropriate, actual damages. 105 S.Ct. at 3122. Although the Supreme Court has often referred to regulation that \"goes too far,” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922), it has never determined whether compensation is constitutionally required in inverse condemnation actions. In fact,, the Court has left this issue unanswered four times since 1980. MacDonald, Sommer & Frates v. Yolo County, — U.S. -, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986); Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981); Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). The Supreme Court will probably face this issue yet again next term. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, — U.S. -, 106 S.Ct. 3292, 92 L.Ed.2d 708 (1986) (probable jurisdiction noted). Given my disposition" }, { "docid": "14412196", "title": "", "text": "use without just compensation.” It is well established that a taking can be accomplished by governmental regulation. As the United States Supreme Court found in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922), “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” In Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980), the Supreme Court stated that “application of a general zoning law to particular property effects a taking if the ordinance * * * denies an owner economically viable use of his land, see Penn Central Transp. Co. v. New York City, 438 U.S. 104, 138 n. 36 [98 S.Ct. 2646, 2666 n. 36, 57 L.Ed.2d 631] (1978).” Further, as the Supreme Court has held in Pennsylvania Coal, the question of whether or not the taking reaches “a certain magnitude” is one that is particularly fact dependent. See Pennsylvania Coal, 260 U.S. at 413, 43 S.Ct. at 159. The Supreme Court has “eschewed the development of any set formula for identifying a ‘taking’ forbidden by the Fifth Amendment, and [has] relied instead on ad hoe, factual inquiries into the circumstances of each particular case.” Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 224, 106 S.Ct. 1018, 1026, 89 L.Ed.2d 166 (1986). In this regulatory taking case, the first matter this Court must decide is whether or not the plaintiff had a sufficient ownership or compensable interest in the land allegedly taken so as to invoke the protection of the Fifth Amendment. Since this Court finds herein that FPI had a compensable property interest in the lakebottom land, the next step is to determine which taking analysis is appropriate in this case, i.e., a categorical taking analysis (in which a physical occupation occurred or all beneficial or productive use of the property has been prohibited) or a regulatory or partial taking analysis (in which a regulation may have gone “too far” but stops short of a categorical taking). Critical to" }, { "docid": "1576437", "title": "", "text": "no compensation for the diminished value of their property, the Department’s action violated the Taking Clause of the Fifth Amendment. The Fifth Amendment provides that “private property” shall not “be taken for public use, without just compensation.” Although the Department’s decision was neither arbitrary nor capricious, that fact does not resolve the separate issue of whether the Taking Clause required the City of Milwaukee to compensate the plaintiffs for the burdens the variance imposed upon them. Loretto v. Teleprompter Manhattan CATV Corp., - U.S. -,-, 102 S.Ct. 3164, 3170, 73 L.Ed.2d 868 (1982); San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 646-50, 101 S.Ct. 1287, 1301-1303, 67 L.Ed.2d 551 (Brennan, J., dissenting). Legitimate government action which places a burden on one individual that in fairness the entire community should share constitutes a taking and the government must compensate the property owner for his loss. Pruneyard Shopping Center, 447 U.S. at 83, 100 S.Ct. at 2041; Goldblatt, 369 U.S. at 594, 82 S.Ct. at 990; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922). The ultimate resolution of whether the government has unconstitutionally taken private property follows an ad hoc factual determination that the full community, rather than an individual property owner, should fairly assume the costs of the governmental action. Loretto, - U.S. at -, 102 S.Ct. at 3170; Penn Central Transportation Co. v. New York City, 438 U.S. 104, 123-24, 98 S.Ct. 2646, 2658-2659, 57 L.Ed.2d 631 (1978). The Lindner Brothers argue, however, that the Barbians did not allege a deprivation of “property” under the Fourteenth Amendment. Lindner Brothers also assert that the plaintiffs lack a property interest in the enforcement of the noise ordinance and, as a result, may not sue under Section 1983 to require its enforcement. The definition of “property” under the Fifth Amendment, however, is not narrowly limited and applies to rights in the use of property as well as the title to it. Kaiser Aetna v. United States, 444 U.S. 164, 178 n. 8, 100 S.Ct. 383, 392 n. 8, 62 L.Ed.2d" }, { "docid": "7513746", "title": "", "text": "355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). All allegations of material fact Eire taken as true and construed in the light most favorable to the non-moving party. Sanders v. Kennedy, 794 F.2d 478, 481 (9th Cir.1986); North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 580 (9th Cir.1983). . The Court noted the existence of these two lines of authority in Loretto v. Teleprompter Manhattan CATV Corp.: Since these early cases, this Court has consistently distinguished between flooding cases involving a permanent physical occupation, on the one hand, and cases involving a more temporary invasion, or government action outside the owner’s property that causes consequential damages within, on the other. A taking has always been found only in the former situation. 458 U.S. 419, 428, 102 S.Ct. 3164, 3172, 73 L.Ed.2d 868 (1982). . Eg., United States v. Riverside Bayview Homes, Inc., — U.S. -, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985); Williamson County Regional Planning Comm’n v. Hamilton Bank, — U.S. -, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981); Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980); Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922). . Eg., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982); Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979); United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946); Richards v. Washington Terminal Co., 233 U.S. 546, 34 S.Ct. 654, 58 L.Ed. 1088 (1914). . Commentators have criticized this physical invasion/regulation distinction. See Epstein at" }, { "docid": "1576462", "title": "", "text": "eminent domain has been attempted by the taking agency.’ ” D. Hagman, Urban Planning and Land Development Control Law 328 (1971). Clarke, 445 U.S. at 257, 100 S.Ct. at 1130 (emphasis in original); see also Illinois v. KerrMcGee Chemical Corp., 677 F.2d 571 (7th Cir.1982). . The noise ordinance was passed under the local police power. Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S.Ct. 1536, 1541, 39 L.Ed.2d 797 (1973); Grayned v. Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972); Kovacs v. Cooper, 336 U.S. 77, 82-83, 69 S.Ct. 448, 451-452, 93 L.Ed. 513 (1949); accord, Agins v. Tiburon, 447 U.S. 255, 261 & n. 8, 100 S.Ct. 2138, 2142 & n. 8, 65 L.Ed.2d 106 (1980). Though the Supreme Court has held in past decisions, Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887), that an exercise of the police power may never amount to a taking, the Court has retreated from that principle in more recent decisions. See San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981); Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922). Thus, while the Department of Health unquestionably acted under the local police power and while that fact alone might under past precedents justify the conclusion that no taking had occurred, that rationale, standing alone, no longer adequately resolves the issue. . A municipality does not “take” private property in derogation of the Fifth Amendment solely because it has declined to regulate loud or excessive noise in a particular neighborhood. The Supreme Court held in Transportation Co. v. Chicago, that some injuries directly produced by government action are “consequential” and to be borne by affected property owners without compensation from the state. [Ajcts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally" }, { "docid": "4787156", "title": "", "text": "and appropriate, actual damages. 105 S.Ct. at 3122. Although the Supreme Court has often referred to regulation that \"goes too far,” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922), it has never determined whether compensation is constitutionally required in inverse condemnation actions. In fact,, the Court has left this issue unanswered four times since 1980. MacDonald, Sommer & Frates v. Yolo County, — U.S. -, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986); Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981); Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). The Supreme Court will probably face this issue yet again next term. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, — U.S. -, 106 S.Ct. 3292, 92 L.Ed.2d 708 (1986) (probable jurisdiction noted). Given my disposition of these motions, I need not offer my opinion on the issue today. But see Lai v. City and County of Honolulu, Civil No. 78-0355 (D.Hawaii Mar, 21, 1986) [Available on WESTLAW, DCTU database] (findings of facts and conclustions of law awarding damages under the Fifth and Fourteenth amendments on theory of inverse condemnation). See also Martino v. Santa Clara Valley Water District, 703 F.2d 1141 (9th Cir.), cert. denied, 464 U.S. 847, 104 S.Ct. 151, 78 L.Ed.2d 141 (1983) (indicating probable appropriateness of award of damages for inverse condemnation). . Kaiser and Bishop may also be asserting a violation of the Equal Protection Clause. See infra note 25. . The Development Agreement also provides, inter alia, that: Bishop is not to lease, transfer, etc. any land without Kaiser’s consent. However, if Kaiser does not commence lot development within six months after selecting a tract, Bishop may lease the lot or lots to someone else. Kaiser may assign or sublet its leased lots or the right to lease the property, with the approval of Bishop." }, { "docid": "5478397", "title": "", "text": "a taking because it considered the taking verdict inconsistent with the estoppel verdict. In its memorandum opinion the court discussed two reasons for finding the jury’s taking verdict unsupported. First, the court reasoned that the estoppel verdict made the denial of property only a temporary one, which could not constitute a fifth amendment taking. A temporary deprivation of property, however, can be a taking and “should be analyzed according to the same framework applied to permanent irreversible ‘takings.’ ” San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 657, 101 S.Ct. 1287, 1307, 67 L.Ed.2d 551 (1981) (Brennan, J., dissenting). See also Kimball Laundry Co. v. United States, 338 U.S. 1, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949); United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946); United States v. Petty Motor Co., 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729 (1946); United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945). Second, the District Court apparently concluded as a matter of law that the application of zoning regulations in a manner impermissible under state law, as established by the estoppel verdict, could not be a taking. This argument is belied by the cases which consistently indicate that the application of the zoning laws, rather than the mere existence of a valid zoning ordinance, may effect a taking. Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980) (“The application of a general zoning law to particular property” may effect a taking (emphasis added).); Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1251, 71 L.Ed.2d 444 (1982), aff'd after remand, 699 F.2d 734 (1983) .. Since it is the application of the laws or regulations which effectuates the taking, it makes no difference for fifth amendment purposes whether the particular application is consistent with state law. Although an unlawful application of zoning regulations can constitute a taking, the question remains whether damages are an appropriate remedy. This" }, { "docid": "23653304", "title": "", "text": "v. Kennedy, 794 F.2d 478, 481 (9th Cir.1986); North Star Int'l v. Arizona Corp. Comm’n, 720 F.2d 578, 580 (9th Cir.1983). . The Court noted the existence of these two lines of authority in Loretto v. Teleprompter Manhattan CATV Corp.: Since these early cases, this Court has consistently distinguished between flooding cases involving a permanent physical occupation, on the one hand, and cases involving a more temporary invasion, or government action outside the owner’s property that causes consequential damages within, on the other. A taking has always been found only in the former situation. 458 U.S. 419, 428, 102 S.Ct. 3164, 3172, 73 L.Ed.2d 868 (1982). . E.g., United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985); Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981); Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980); Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922). . E.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982); Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979); United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946); Richards v. Washington Terminal Co., 233 U.S. 546, 34 S.Ct. 654, 58 L.Ed. 1088 (1914). . Commentators have criticized this physical invasion/regulation distinction. See Epstein at 49-50; Blume & Rubinfeld, Compensation for Takings: An Economic Analysis, 70 Cal.L.Rev. 569, 574-75 (1984). Nevertheless, we are bound to respect the distinction as drawn by the Supreme Court. . As appellee points" }, { "docid": "14412195", "title": "", "text": "granted, the profit would run between $3.6 million and $6.3 million. As of April 30, 1996, closed sales of 28 lots generated proceeds in the amount of $4,208,000, and Mr. Foulkes testified that as of September 1996, at least 33 lots had been sold, with others still in escrow. Mr. Colburn attributed the number of remaining unsold lots to the downturn in the real estate market in southern California. The loss of the 14 lots on the proposed peninsula amounted to a decrease in develo-pable land of some 15 percent of the project, although the market value of the lakeshore lots would have been among the highest of all of the lots in the development. On December 16, 1992, FPI filed a Complaint in this Court alleging an inverse condemnation. FPI believes that, by denying the section 404 permit, the Government effectuated a taking, which requires just compensation pursuant to the Fifth Amendment. Discussion The Fifth Amendment to the United States Constitution provides, in relevant part, that “private property [shall not] be taken for public use without just compensation.” It is well established that a taking can be accomplished by governmental regulation. As the United States Supreme Court found in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922), “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” In Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980), the Supreme Court stated that “application of a general zoning law to particular property effects a taking if the ordinance * * * denies an owner economically viable use of his land, see Penn Central Transp. Co. v. New York City, 438 U.S. 104, 138 n. 36 [98 S.Ct. 2646, 2666 n. 36, 57 L.Ed.2d 631] (1978).” Further, as the Supreme Court has held in Pennsylvania Coal, the question of whether or not the taking reaches “a certain magnitude” is one that is particularly fact dependent. See Pennsylvania Coal, 260 U.S. at 413, 43" }, { "docid": "22839843", "title": "", "text": "the public interest (as opposed to the eminent domain power which involves the acquisition of possessory or legal rights in property because of its need for public use). Acquisition of property or an interest in property through the use of the eminent domain power and after payment of fair compensation is known as “condemnation.” The taking clause has never been applied to rights other than “property” rights. See, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922); Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); and the more recent cases of Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Kaiser-Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979); San Diego Gas & Elect. Co. v. City of San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). Each of these cases involves real property or interests in real property. There is considerable doubt that money, standing alone, constitutes property that can be subject to the “taking” clause. See, e.g., Omnia Commercial Co. v. United States, 261 U.S. 502, 43 S.Ct. 437, 67 L.Ed. 773 (1923); United States v. General Motors Corp., 323 U.S. 373, 379-380, 65 S.Ct. 357, 360, 89 L.Ed. 311 (1945). Defendants have no property rights at issue in this case that could be subject to being “taken” by the government and, in fact, the RCRA/CERCLA statutory scheme, to the extent that it affects any property rights at all, affects only the rights of the owner of the “facility” at issue. Since RCRA/CERCLA requires a showing that the site presents “imminent and substantial endangerment” to the public health, safety and welfare and to property and the environment, it is difficult to see under what set of facts a requirement to clean up the site would constitute an over-regulation resulting in a “taking.” The fact’ that certain generators may be liable under the" }, { "docid": "1576463", "title": "", "text": "Electric Co. v. City of San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981); Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922). Thus, while the Department of Health unquestionably acted under the local police power and while that fact alone might under past precedents justify the conclusion that no taking had occurred, that rationale, standing alone, no longer adequately resolves the issue. . A municipality does not “take” private property in derogation of the Fifth Amendment solely because it has declined to regulate loud or excessive noise in a particular neighborhood. The Supreme Court held in Transportation Co. v. Chicago, that some injuries directly produced by government action are “consequential” and to be borne by affected property owners without compensation from the state. [Ajcts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the State or its agents, or give him any right of action. 99 U.S. 635, 642, 25 L.Ed. 336 (1879); see also Peabody v. United States, 231 U.S. 530, 538, 34 S.Ct. 159, 160, 58 L.Ed. 351 (1913); see generally J. Sackman, Nichols on Eminent Domain, § 6.4432 (rev. 3rd ed. 1981) (hereinafter “Nichols”). Noise and other discomforts produced from a municipality’s regulation of its streets is one example of such an injury. Accord United States v. Causby, 328 U.S. 256, 269-70, 66 S.Ct. 1062, 1069-1070, 90 L.Ed. 1206 (Black, J,, dissenting). Thus, an increase in traffic resulting from an expansion of a road does not entitle an adjoining property owner, whose property has not been physically invaded or formally condemned, to compensation for injury from the noise, congestion, and other dislocations produced by the change. Nichols, § 16.101[2] at 16-13; accord Stanwood v. Malden, 157 Mass. 17, 31 N.E." }, { "docid": "5478390", "title": "", "text": "Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 3171, 73 L.Ed.2d 868 (1982); Kaiser Aetna v. United States, 444 U.S. 164, 174-175, 100 S.Ct. 383, 389-390, 62 L.Ed.2d 332 (1979); Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978). A taking does not require an actual physical occupation of the property or formal condemnation proceedings. Amen v. City of Dearborn, 718 F.2d 789 (6th Cir.1983). The Supreme Court established in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), that governmental regulation affecting an owner’s use of his property may constitute a taking. In Pennsylvania Coal, a statute prohibited mining coal in such a way as to cause a residence to subside, where the owner of the underground mining rights was not the owner of the surface habitation rights. The Court employed a practical economic analysis to determine that application of the statute effected a taking, saying: “What makes the right to mine coal valuable is that it can be exercised with profit. To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it.” 260 U.S. at 414, 43 S.Ct. at 160. The taking clause was more explicitly held applicable to zoning regulation in Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). The Court there held that: The application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests, see Nectow v. Cambridge, 277 U.S. 183, 188 [48 S.Ct. 447, 448, 72 L.Ed. 842] (1928), or denies an owner economically viable use of his land, see Penn Central Transp. Co. v. New York City, 438 U.S. 104, 138 n. 36 [98 S.Ct. 2646, 2666 n. 36, 57 L.Ed.2d 631] (1978). 447 U.S. at 260, 100 S.Ct. at 2141. The Court in Agins also held that restricting the spread of urbanization was a legitimate governmental purpose. Since this purpose was served by" }, { "docid": "1576436", "title": "", "text": "477, 86 A.2d 180 (1952)). However, we need not consider whether the decision to grant the variance was correct as a matter of state law. A Section 1983 cause of action does not provide the Barbians a federal forum in which to contest the merits of a local administrative determination. The record indicates that the Barbians did not challenge the Department’s noise decision in state court. That decision may be set aside under the Fourteenth Amendment only if it was arbitrary and capricious. Pruneyard Shopping Center, 447 U.S. at 84-85, 100 S.Ct. at 2042-2043. While Lindner Brothers’ responsibility for a share of the problem may be one relevant factor, there are obviously other aspects to be considered. The Department’s decision to grant the variance was not an unconstitutionally arbitrary solution to the dilemma solely because Lindner Brothers may have overlooked or even ignored the noise ordinance in building the warehouse. III. The Barbians argue that the Department’s decision to grant the noise variance rendered their home uninhabitable, contending that since the City of Milwaukee provided no compensation for the diminished value of their property, the Department’s action violated the Taking Clause of the Fifth Amendment. The Fifth Amendment provides that “private property” shall not “be taken for public use, without just compensation.” Although the Department’s decision was neither arbitrary nor capricious, that fact does not resolve the separate issue of whether the Taking Clause required the City of Milwaukee to compensate the plaintiffs for the burdens the variance imposed upon them. Loretto v. Teleprompter Manhattan CATV Corp., - U.S. -,-, 102 S.Ct. 3164, 3170, 73 L.Ed.2d 868 (1982); San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 646-50, 101 S.Ct. 1287, 1301-1303, 67 L.Ed.2d 551 (Brennan, J., dissenting). Legitimate government action which places a burden on one individual that in fairness the entire community should share constitutes a taking and the government must compensate the property owner for his loss. Pruneyard Shopping Center, 447 U.S. at 83, 100 S.Ct. at 2041; Goldblatt, 369 U.S. at 594, 82 S.Ct. at 990; Pennsylvania Coal Co. v. Mahon, 260 U.S." }, { "docid": "5478419", "title": "", "text": "zoning legislation vis-a-vis the particular property and to correct the inequity. During the pendency of such proceedings to review and correct a zoning classification that denies an owner any economically viable use of his property, “[m]ere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are ‘incidents of ownership. They cannot be considered as a “taking” in the constitutional sense.’ ” Agins v. City of Tiburon, 447 U.S. at 262-63 n. 9, 100 S.Ct. at 2142-43 n. 9 (quoting Danforth v. United States, 308 U.S. 271, 285, 60 S.Ct. 231, 236, 84 L.Ed. 240 (1939). Accord, Thomas W. Garland, Inc. v. City of St. Louis, 596 F.2d 784, 787 (8th Cir.), cert. denied, 444 U.S. 899, 100 S.Ct. 208, 62 L.Ed.2d 135 (1979); Reservation Eleven Associates v. District of Columbia, 420 F.2d 153, 157 (D.C.Cir.1969). 643 F.2d 1188 (5th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1251, 71 L.Ed.2d 444 (1982) , aff'd after remand, 699 F.2d 734 (1983). In a footnote, the court further stated: We believe that such a rule is consistent with the “weight of authority ... that in order to constitute a taking, the condemnor must have an intention to appropriate ____” Porter v. United States, 473 F.2d 1329, 1336 (5th Cir.1973). Accord, J.J. Henry Co. v. City State [188 Ct.Cl. 39], 411 F.2d 1246, 1249 (1969). The City of Lafayette under the circumstances of this case would lack an intention to deny plaintiff an economically viable use of his property until it was put on notice that its zoning regulations were effecting such a denial. But see San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 657 [101 S.Ct. 1287, 1307, 67 L.Ed.2d 551] (1981) (Brennan, J., dissenting). Thus, for the reasons stated, I respectfully dissent from the opinion of the majority and would affirm the decision of the district judge. . \"There is no set formula to determine where regulation ends and taking begins.” Goldblatt v. Town of Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130 (1962), cited by the dissent" }, { "docid": "5478398", "title": "", "text": "as a matter of law that the application of zoning regulations in a manner impermissible under state law, as established by the estoppel verdict, could not be a taking. This argument is belied by the cases which consistently indicate that the application of the zoning laws, rather than the mere existence of a valid zoning ordinance, may effect a taking. Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980) (“The application of a general zoning law to particular property” may effect a taking (emphasis added).); Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1251, 71 L.Ed.2d 444 (1982), aff'd after remand, 699 F.2d 734 (1983) .. Since it is the application of the laws or regulations which effectuates the taking, it makes no difference for fifth amendment purposes whether the particular application is consistent with state law. Although an unlawful application of zoning regulations can constitute a taking, the question remains whether damages are an appropriate remedy. This question was presented to the Supreme Court in San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981). There the Court was asked to rule that a state must provide damages to a landowner who has suffered a regulatory taking. The California court had held that only injunctive relief was available. Although this question was not answered by the majority of the Court, which held the case non-justiciable for lack of a final order, it was discussed by Justice Brennan in his dissent. The dissent was joined in by four justices. Justice Rehnquist, concurring with the majority, said specifically that he “would have little difficulty agreeing with much of what is said in the dissenting opinion of Justice Brennan,” 450 U.S. at 633-34, 101 S.Ct. at 1294-95; and the majority opinion itself noted that the constitutional merits of the claim were “not to be cast aside lightly,” id. at 633, 101 S.Ct. at 1294. The dissent, which therefore represented the views of a majority" }, { "docid": "7513747", "title": "", "text": "(1985); San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981); Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980); Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922). . Eg., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982); Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979); United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946); Richards v. Washington Terminal Co., 233 U.S. 546, 34 S.Ct. 654, 58 L.Ed. 1088 (1914). . Commentators have criticized this physical invasion/regulation distinction. See Epstein at 49-50; Blume & Rubinfeld, Compensation for Takings: An Economic Analysis, 70 Cal.L.Rev. 569, 574-75 (1984). Nevertheless, we are bound to respect the distinction as drawn by the Supreme Court. . As appellee points out, Justice Rehnquist’s lone dissent in Fresh Pond suggests that the other Justices did not share his ultimate conclusion that the rent control scheme there constituted a taking. However, as discussed below, see pp. 1500-1502 infra, Fresh Pond is distinguishable from this case in material ways that we presume were the basis for the majority’s decision. We do not interpret the Fresh Pond dismissal as repudiating everything said by Justice Rehnquist in his dissent. . Professor Michelman notes as follows in his seminal article on this subject: [t]he one incontestable case for compensation (short of formal expropriation) seems to occur when the government deliberately brings it about that its agents, or the public at large, \"regularly\" use, or \"permanently\" occupy, space or a thing which theretofore was understood to be under private ownership. Michelman, Property, Utility, and Fairness: Comments on the Ethical" }, { "docid": "22839842", "title": "", "text": "20497 (D.N.M. May 4, 1984). The Court’s determination on this issue has been amply supported by prior and subsequent case law and is additionally discussed herein. The so-called “taking” clause is part of the Fifth Amendment to the U.S. Constitution and provides, in relevant part: “... nor shall private property be taken for public use without just compensation.” The classic statement of the applicable test for determining whether a taking has occurred was announced by Justice Holmes in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922) as follows: “The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” In other words, a taking may result only from an over-regulation of property by the government (i.e., an exercise of the police power that has gone too far). The police power provides for the public regulation of property to prevent the use thereof in a manner that is detrimental to the public interest (as opposed to the eminent domain power which involves the acquisition of possessory or legal rights in property because of its need for public use). Acquisition of property or an interest in property through the use of the eminent domain power and after payment of fair compensation is known as “condemnation.” The taking clause has never been applied to rights other than “property” rights. See, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922); Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); and the more recent cases of Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Kaiser-Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979); San Diego Gas & Elect. Co. v. City of San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). Each of" }, { "docid": "8562950", "title": "", "text": "basis for holding Amendment No. 5 invalid as applied to these Plaintiffs. The restriction in Amendment No. 5 against the use of motor boats on Crooked Lake effects a taking of Plaintiffs’ private property without just compensation in violation of the Fifth Amendment of the United States Constitution. The Fifth Amendment guarantees that private property shall not “be taken for public use without just compensation.” U.S. Const, amend. V. If regulation of property goes too far it will be recognized as a taking. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014-15, 112 S.Ct. 2886, 2892-93, 120 L.Ed.2d 798, 812 (1992) (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922))! There is no set formula for determining how far is “too far.” Lucas, 505 U.S. at 1014-15, 112 S.Ct. at 2892-93, 120 L.Ed.2d at 812. There are, however, some guiding principles. For example, the Fifth Amendment is violated when land use regulation does not substantially advance legitimate state interest or denies an owner economically viable use of his land. Lucas, 505 U.S. at 1015-17, 112 S.Ct. at 2893-94, 120 L.Ed.2d at 813 (quoting Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980)). A regulation may also constitute a taking if it extinguishes a fundamental attribute- of ownership. Agins v. Tiburon, 447 U.S. 255, 262, 100 S.Ct. 2138, 2142, 65 L.Ed.2d 106 (1980) (citing Kaiser Aetna v. United States, 444 U.S. 164, 179-80, 100 S.Ct. 383, 392-93, 62 L.Ed.2d 332 (1979)). “The determination that governmental action constitutes a taking is, in essence, a determination- that the public at large, rather than a single owner, must bear the burden of an exercise of state power in the public interest.” Agins, 447 U.S. at 260, 100 S.Ct. at 2141. As noted in Peterman v. State Department of Natural Resources, 446 Mich. 177, 521 N.W.2d 499 (1994), riparian rights are property and as such are “protected by the limits of the power of eminent domain.” Id. at 192, 521 N.W.2d 499. “Riparian rights involve property rights that, if" } ]

[ { "docid": "18932755", "title": "", "text": "in the interactive process designed to create those reasonable accommodations. II. Failure to Engage in the Interactive Process Loulseged also argues that judgment as a matter of law was inappropriate because a jury question existed as to Akzo’s failure to initiate and participate in an interactive process with her to develop a reasonable accommodation. Akzo concedes that it was under an obligation to participate in such a process, but argues that the failure of the process to develop an accommodation was traceable to Loulseged’s noncooperation. Once an employee has made a request for an accommodation, the ADA’s regulations state that “it may be necessary for the [employer] to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation” in order to craft a reasonable accommodation. 29 C.F.R. § 1630.2(o)(3). The EEOC’s interpretive guidelines reinforce this directive, but also stress that the interactive process requires the input of the employee as well as the employer. See 29 C.F.R. Pt. 1630, App. § 1630.9 at 359 (“flexible, interactive process that involves both the employer and the qualified individual with a disabili ty”). See also Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir.), cert. denied, 519 U.S. 1029, 117 S.Ct. 586, 136 L.Ed.2d 515 (1996) (duty to launch interactive process is triggered by request for an accommodation). The need for bilateral discussion arises because “each party holds information the other does not have or cannot easily obtain.” See Taylor v. Phoenixville School Dist., 174 F.3d 142, 162 (3rd Cir.1999) (noting that employers will not always understand what the disabled employee is capable of and the employee will not always understand what accommodations are reasonably available). Courts interpreting the interactive process requirement have held that when an employer’s unwillingness to engage in a good faith interactive process leads to a failure to reasonably accommodate an employee, the employer violates the ADA. See Taylor v. Phoenixville School Dist., 174 F.3d 142, 165; Bultemeyer v. Fori Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir.1996). However, recognizing that “the responsibility for fashioning a reasonable accommodation" } ]

[ { "docid": "23171621", "title": "", "text": "other evidence that he was “disabled” under the ADA. UPS contends that even if the doctrine of collateral estoppel were inapplicable in this case, Jones’s ADA claim nevertheless fails as he admitted there are no reasonable accommodations on the part of UPS that would have made it possible for Jones to perform his position as a package car driver. Appellant does not contest that fact. See Appellant’s Br. at 21 (“Mr. Jones did not dispute his inability to return to his former position of package car driver, given his disability.”). He insists, however, that the only relevant accommodation would have been to transfer Jones to a different position at UPS, and that had ■ UPS fulfilled its obligation to engage in the interactive process, the parties could have identified transfer positions as a reasonable accommodation. The ADA’s regulations provide that: “To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the [employee] in need of the accommodation.” 29 C.F.R. § 1630.2(o)(3). The goal of the interactive process is to help identify the precise limitations of the employee’s disability and the potential options that could reasonably accommodate those limitations. The EEOC’s interpretive guidelines establish the circumstances that trigger the employer’s duty to engage in this interactive process: “Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.” 29 C.’F.R. Pt. 1630, App. S 1630.9 at 361. Appellant relies on our decision in Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir.1999), in support of his argument that UPS failed to engage in the interactive process required by the ADA. However, Taylor is distinguishable on its facts. Katherine Taylor, the plaintiff, had worked as a school principal’s secretary for twenty years before suffering the onset of bipolar disorder which resulted in her hospitalization at a psychiatric institution and subsequent leave of absence." }, { "docid": "22346649", "title": "", "text": "580 (quoting 29 C.F.R. Pt. 1630, App. § 1630.2(m) at 351). Because Taylor held her position as secretary to the principal for many years, receiving high praise, there is no serious dispute that she satisfies the prerequisites for the position. The critical issue is whether Taylor could, with reasonable accommodations, perform the essential functions of her job following her return from her hospitalization. The Interactive Process The ADA’s regulations state that: “To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the [employee] in need of accommodation. This process should identify the precise limitations resulting from the disability and the potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3). Similarly, the EEOC’s interpretive guidelines provide that: “Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.” 29 C.F.R. Pt. 1630, App. § 1630.9 at 359. We have previously recognized both this regulation and the EEOC’s interpretive guideline and applied them to a claim brought under the Rehabilitation Act, 29 U.S.C. § 701, et seq. Mengine v. Runyon, 114 F.3d 415, 419-20 (3d Cir.1997); see also Deane v. Pocono Medical Center, 142 F.3d 138, 149 (3d Cir.1998)(en banc). Based on the regulation and interpretive guidelines, we held in Mengine that “both parties have a duty to assist in the search for appropriate reasonable accommodation and to act in good faith.” Id. We noted that other circuits have taken this view. See, e.g., Beck v. University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir.1996)(“A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith.”); Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir.l996)(The “employee’s initial request for an accommodation ... triggers" }, { "docid": "2562394", "title": "", "text": "doing his job if he just communicated by radio. Camfield, 719 F.2d at 1361. There is, therefore, no genuine issue of material fact as to Gerdes’s inability to perform the essential functions of his job in the face of the work restrictions imposed by his doctor. 3. Reasonable accommodation and “interactive process” This court has also discussed the requirements for and explanations of “reasonable accommodation” under the ADA on more than one occasion. See, e.g., Valentine, 939 F.Supp. at 1394-96; Muller, 917 F.Supp. at 1407-08; Hutchinson, 883 F.Supp. at 392-93; Fink, 881 F.Supp. at 1372-73. However, the issue Armour asserts is dispositive here is not so much what is the nature of a “reasonable accommodation,” but who is responsible for the breakdown of the interactive process that should be followed to determine what accommodations are reasonable in the circumstances. Two recent decisions from the circuit courts of appeals discuss the required process for determining what reasonable accommodation an employer must provide. In the more recent of these decisions, Taylor v. Principal Fin. Group, Inc., 93 F.3d 155 (5th Cir.1996), the Fifth Circuit Court of Appeals wrote, “In general ... it is the responsibility of the individual with the disability to inform the employer that an accommodation is needed.” 29 C.F.R. § 1630.9, App. (1995). Once such a request has been made, “[t]he appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the qualified individual with a disability.” 29 C.F.R. § 1630.9, App. (1995). In other words, the responsibility for fashioning a reasonable accommodation is shared between the employee and employer. 29 C.F.R. § 1630.9, App. (1995). Taylor, 93 F.3d at 165. Similarly, the Seventh Circuit Court of Appeals has described this “interactive” process to determine “reasonable accommodation”: The employer has at least some responsibility in determining the necessary accommodation. .The federal regulations implementing the ADA state: To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the" }, { "docid": "23565914", "title": "", "text": "known cure or treatment for Stargardt’s disease, and the vision impairment cannot be corrected with mitigating measures such as eyeglasses, contact lenses, or surgery. Rather than adjusting to compensate for the vision impairment, as would occur in the normal case of reduced vision, Dr. Newsome testified that Cutr-era’s impairment forces her eyes to work against each other, impairing her ability to read and visually track moving objects. Rather than relying on1 her less-impaired eye, her more-impaired eye actively interferes with her vision. Dr. Newsome’s testimony regarding the extent of Cutrera’s impairment, and Cutr-era’s own testimony about the effect her limited vision has on her ability to see give rise to a genuine question of material fact on whether Cutrera is disabled under the ADA. Because we find that Appellant raises a genuine question of material fact with respect to a substantial limitation on her ability to see, we need not address whether her impaired vision also imposes a substantial limitation on her ability to work. 2. Appellees offer as an alternate basis for affirming the summary judgment the argument that Cutrera failed to request an accommodation from the LSU Foundation. “In general ... it is the responsibility of the individual with the disability to inform the employer that an accommodation is needed.” 29 C.F.R. § 1630.9, App. (1995). Once such a request has been made, “[t]he appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the qualified individual with a disability.” Id. Thus, the employee’s initial request for an accommodation triggers the employer’s obligation to participate in the interactive process. Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir.), cert. denied, 519 U.S. 1029, 117 S.Ct. 586, 136 L.Ed.2d 515 (1996). However, when an employer’s unwillingness to engage in a good faith interactive process leads to a failure to reasonably accommodate an employee, the employer violates the ADA. See Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir.1999) (citing Taylor v. Phoenixville School Dist., 174 F.3d 142,165 (3d Cir.1999); Bultemeyer v. Fort Wayne Community Schools, 100 F.3d" }, { "docid": "298767", "title": "", "text": "or proposed by Valentine, and then refused to accept the company’s subsequent accommodation, part-time employment. However, AHS’s argument presupposes that it has, as a matter of law, provided “reasonable accommodation” or properly engaged in the process of determining what would be a “reasonable accommodation” in this case. Two recent decisions from the circuit courts of appeals discuss the required process for determination of what reasonable accommodation an employer must provide. i. The “interactive process” to determine reasonable accommodation. In the more recent of these decisions, Taylor v. Principal Fin. Group, Inc., 93 F.3d 155 (5th Cir.1996), the Fifth Circuit Court of Appeals wrote, “In general ... it is the responsibility of the individual with the disability to inform the employer that an accommodation is needed.” 29 C.F.R. § 1630.9, App. (1995). Once such a request has been made, “[t]he appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the qualified individual with a disability.” 29 C.F.R. § 1630.9, App. (1995). In other words, the responsibility for fashioning a reasonable accommodation is shared between the employee and employer. 29 C.F.R. § 1630.9, App. (1995). Taylor, 93 F.3d at 165. Similarly, the Seventh Circuit Court of Appeals has described this “interactive” process to determine “reasonable accommodation”: The employer has at least some responsibility in determining the necessary accommodation. The federal regulations implementing the ADA state: To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. 29 C.F.R. § 1630.2(o)(3) (1995). But the regulations envision an interactive process that requires participation by both parties: [T]he employer must make reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability. 29 C.F.R., pt. 1630, app.; see also Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 677" }, { "docid": "23081996", "title": "", "text": "not meet the prerequisites of the 408B job. To satisfy the 408B criteria, Kratzer needed to train on a sheet-metal-producing machine, then demonstrate the training by passing the 408B mechanical test. Kratzer, however, never passed the 408B test. Because she did not satisfy the prerequisites for 408B classification, she was not qualified. Kratzer claims she did not train or pass the 408B test, because Rockwell impeded the interactive process when Bellendier demanded she take the 408B test on June 6, 2000, without an accommodation. The interactive process is informal and flexible, enabling both employer and employee to identify the employee’s limitations and accommodations. 29 C.F.R. § 1630.2(o)(3). If the employee needs an accommodation, the employer must engage in an interactive process. Burchett v. Target Corp., 340 F.3d 510, 517 (8th Cir.2003). An employer impedes the process when: the employer knows of the employee’s disability; the employee requests accommodations or assistance; the employer does not in good faith assist the employee in seeking accommodations; and the employee could have been reasonably accommodated but for the employer’s lack of good faith. Ballard v. Rubin, 284 F.3d 957, 960 (8th Cir.2002), quoting Taylor v. Phoenixville Sch. Dist., 174 F.3d 142, 165 (3d Cir.1999). Contrary to Kratzer’s assertion, the breakdown in the interactive process was due to her failure to provide an updated evaluation, not Rockwell’s refusal to provide an accommodation. The “predicate requirement” triggering the interactive process is the employee’s request for the accommodation. Id. A mere assertion that an accommodation needed is insufficient; the employee must inform the employer of the accommodation needed. Mole v. Buckhorn Rubber Products, Inc., 165 F.3d 1212, 1217 (8th Cir.1999); see generally 29 C.F.R. § 1630, App. § 1630.9. Rockwell and Kratzer agreed she would obtain an updated physical evaluation in order to determine the accommodation needed in the testing. Kratzer did schedule an appointment with her doctor, yet failed to go. By not obtaining the evaluation, Kratzer did not request accommodations beyond those documented in her file. Her statement that she wanted to see her doctor was insufficient; she needed to follow-up with the appointment. Without" }, { "docid": "9935462", "title": "", "text": "ADA and TCHRA failure to accommodate claims). . \"In general, it is the responsibility of the individual with the disability to inform the employer that an accommodation is needed. Once such a request has been made, the appropriate accommodation is best determined through a flexible, interactive process that involves both the employer and the qualified individual with a disability.\" Cutrera v. Board of Supervisors of La. State Univ., 429 F.3d 108, 112 (5th Cir.2005) (citing 29 C.F.R. § 1630.9, App. (1995)). \"Thus, it is the employee’s initial request for an accommodation which triggers the employer's obligation to participate in the interactive process of determining one.” Taylor, 93 F.3d at 165. \"If the employee fails to request an accommodation, the employer cannot be held liable for failing to provide one.” Id. However, \"when an employer's unwillingness to engage in a good faith interactive process leads to a failure to reasonably accommodate an employee, the employer violates the ADA.” Cutrera, 429 F.3d at 112 (citing Loulseged v. Alezo Nobel Inc., 178 F.3d 731, 736 (5th Cir.1999)). Moreover, ”[a]n employer may not stymie the interactive process of identifying a reasonable accommodation for an employee's disability by preemptively terminating the employee before an accommodation can be considered or recommended.” Cutrera, 429 F.3d at 113; see also Jenkins v. Cleco Power LLC, 487 F.3d 309, 316 (5th Cir.2007) (collecting cases). .See supra note 14; see also Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir.2004) (conducting an analysis under Title VII to evaluate the plaintiffs TCHRA retaliation claim). . Plaintiffs Response [Doc. # 56], Exh. H: “EEOC Charge of Discrimination.” . Plaintiffs Original Complaint [Doc. # 1], It 13. . See Defendant’s Motion for Summary Judgment [Doc. # 46], ¶ 34 (\"While it is unclear from her Complaint whether Hickman has brought a retaliation claim under the ADA and TCHRA, and [DPH] does not concede that she has actually alleged a retaliation claim, out of an abundance of caution, [DPH] will show the Court why a retaliation claim would wholly fail as well.”). . See Recording of Pretrial Hearing of February 28," }, { "docid": "22822764", "title": "", "text": "necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. In general, the interactive process must ordinarily begin with the employee providing notice to the employer of the employee’s disability and any resulting limitations, and expressing a desire for reassignment if no reasonable accommodation is possible in the employee’s existing job. See Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir.1996). The employee should provide enough information about his or her limitations and desires so as to suggest at least the possibility that reasonable accommodation may be found in a reassignment job within the company. In expressing a desire for reassignment, an employee need not use magic words. But, the employee must convey to the employer a desire to remain with the company despite his or her disability and limitations. See Taylor v. Phoenixville Sch. Dist., 174 F.3d 142 (3d Cir.1999); Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 694 (7th Cir.1998) (“A request as straightforward as asking for continued employment is a sufficient request for accommodation.”); EEOC Guidance, at 8 (“To request accommodation, an individual may use ‘plain English’ and need not mention the ADA or use the phrase ‘reasonable accommodation.’ ”). Once the employer’s responsibilities within the interactive process are triggered by appropriate notice by the employee, both parties have an obligation to proceed in a reasonably interactive manner to determine whether the employee would be qualified, with or without reasonable accommodations, for another job within the company and, if so, to identify an appropriate reassignment opportunity if any is reasonably available. The obligation to engage in an interactive process is inherent in the statutory obligation to offer a reasonable accommodation to an otherwise qualified disabled employee. The interactive process is typically an essential component of the process by which a reasonable accommodation can be determined. The interactive process includes good-faith communications between the employer and employee. See Phoenixville, 174 F.3d 142 (“All" }, { "docid": "10691079", "title": "", "text": "must participate. “[T]he employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.” 29 C.F.R. Pt. 1630, App. § 1630.9; see also Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008) (“We have held that the ADA contemplates that employers will engage in an ‘interactive process’ with their employees and in that way work together to assess whether an employee’s disability can be reasonably accommodated.” (citation and quotation marks omitted)). The Third Circuit has described the operation of this process: “meetflng] with the employee who requests an accommodation, requesting] information about the condition and what limitations the employee has, ask[ing] the employee what he or she specifically wants, showfing] some sign of having considered [the] employee’s request, and offering] and discussing] available alternatives when the request is too burdensome.” Taylor v. Phoenixville Sch. Dist., 174 F.3d 142, 162 (3d Cir.1999). In Beck v. Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130 (7th Cir.1996), the Seventh Circuit influentially described how courts should assess claims of a breakdown: No hard and fast rule will suffice, because neither party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability. Rather, courts should look for signs of failure to participate in good faith or failure by one of the parties to make reasonable efforts to help the other party determine what specific accommodations are necessary. A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility- id at 1135. “Liability for failure to provide a reasonable accommodation ensues only when the employer is responsible for a breakdown in that process.” Thompson v. City of New York, No. 03 Civ. 4182, 2006 WL 2457694, at *4 (S.D.N.Y. Aug. 10," }, { "docid": "18055096", "title": "", "text": "for her asthma, since these policies were never enforced. (Pl.’s Resp. Exs. 10, 14; Pl.’s Resp. Ex. 12, Collier Dep. at 32.) Ms. Bond supports her assertion with the results of the University of Illinois at Chicago indoor air quality and ventilation study conducted on February 28, 1997, which concluded, inter alia, “[s]moking is currently permitted in the facility for the inmates, officers, and other staff.” (PL’s Resp. Ex. 5 at p. 3.) Ms. Bond also argues that Defendant failed to engage in an interactive process with her, thus providing further evidence that Defendant did not reasonably accommodate her asthma. “An employee has the initial duty to inform the employer of a disability before ADA liability may be triggered for failure to provide accommodations.” Beck v. Univ. of Wis. Board of Regents, 75 F.3d 1130, 1134 (7th Cir.1996) (emphasis added). Once the employee provides this information, the employer has a responsibility to start the interactive process. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir.1996); see also 29 C.F.R. § 1630.2(o)(3) (“To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation.”)’ After an employee’s request, both parties bear responsibility for determining what accommodation is necessary. Bultemeyer, supra, 100 F.3d at 1285. Once a disability has been summoned to the fore, determining what specific actions should be taken by an employer requires an interactive process, involving participation by both sides. Beck, 75 F.3d at 1135. Significantly, where missing information is of the type that can only be provided by one of the parties, failure to provide the information may be the cause of the breakdown, and the party withholding the information may be found to have obstructed the process. Id. at 1135-36. Plaintiff has produced copies of letters (several from her doctors) sent to employees at the CCDOC (Def. SUF Exs. 22-25), deposed several supervisors (Pl.Resp.Ex. 11, 12), and included copies of complaints directed to the IDOL, in order to demonstrate that she wanted an accommodation" }, { "docid": "23171622", "title": "", "text": "interactive process is to help identify the precise limitations of the employee’s disability and the potential options that could reasonably accommodate those limitations. The EEOC’s interpretive guidelines establish the circumstances that trigger the employer’s duty to engage in this interactive process: “Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.” 29 C.’F.R. Pt. 1630, App. S 1630.9 at 361. Appellant relies on our decision in Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir.1999), in support of his argument that UPS failed to engage in the interactive process required by the ADA. However, Taylor is distinguishable on its facts. Katherine Taylor, the plaintiff, had worked as a school principal’s secretary for twenty years before suffering the onset of bipolar disorder which resulted in her hospitalization at a psychiatric institution and subsequent leave of absence. Taylor’s son informed the school that doctors had diagnosed his mother with bipolar disorder and'told them that she ‘“would require accommodations when she returned to work.’ ” Id. at 303. However, when Taylor returned to work, the school offered no accommodation, but instead began documenting her errors and eventually terminated her employment. Taylor filed an ADA action; the district court granted summary judgment for the defendant, finding that the only accommodation Taylor specifically requested, a transfer to another position, was not possible. We reversed, holding that Taylor had presented sufficient evidence to create an issue of material fact as to whether the school had failed to engage in the interactive process. We stated that to show that an employer has violated its duty to engage in the interactive process, a disabled employee must demonstrate: “1) the employer knew about the employee’s disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee" }, { "docid": "9935461", "title": "", "text": "Hickman points to no competent medical evidence that her alleged difficulties in walking are connected to the chronic allergy, asthmatic or autoimmune conditions of which she complains, or that her claimed difficulty in walking affected her ability in any way to perform her duties on the job. . Plaintiff's Response [Doc. # 56], Exh. A-9: \"Excerpts of Medical Records: Application for Disabled Person Identification Placard,” at 6 of 28. . Plaintiff's Response [Doc. #56], Exh. A: \"Declaration of Pamela Miles-Hickman,” ¶ 16; id. Exh. A-9. . Id. at Exh. C: \"Affidavit of Bill Oldham,” at 1. . Plaintiff's Response [Doc. # 56], at 13. . Non-management co-workers' informal accommodations of each others requests are insufficient to establish that an employer, through its management, \"regarded” an employee as disabled. .Wiederhold Deposition [Doc. # 46, Exh. D], at 18. . Plaintiff’s Surreply to Defendant’s Summary Judgment Motions [Doc. # 68], at 4. . See supra note 14; see also Talk, 165 F.3d at 1024 n. 4 (conducting a single analysis under the ADA to evaluate the plaintiff's ADA and TCHRA failure to accommodate claims). . \"In general, it is the responsibility of the individual with the disability to inform the employer that an accommodation is needed. Once such a request has been made, the appropriate accommodation is best determined through a flexible, interactive process that involves both the employer and the qualified individual with a disability.\" Cutrera v. Board of Supervisors of La. State Univ., 429 F.3d 108, 112 (5th Cir.2005) (citing 29 C.F.R. § 1630.9, App. (1995)). \"Thus, it is the employee’s initial request for an accommodation which triggers the employer's obligation to participate in the interactive process of determining one.” Taylor, 93 F.3d at 165. \"If the employee fails to request an accommodation, the employer cannot be held liable for failing to provide one.” Id. However, \"when an employer's unwillingness to engage in a good faith interactive process leads to a failure to reasonably accommodate an employee, the employer violates the ADA.” Cutrera, 429 F.3d at 112 (citing Loulseged v. Alezo Nobel Inc., 178 F.3d 731, 736 (5th Cir.1999)). Moreover," }, { "docid": "23565915", "title": "", "text": "summary judgment the argument that Cutrera failed to request an accommodation from the LSU Foundation. “In general ... it is the responsibility of the individual with the disability to inform the employer that an accommodation is needed.” 29 C.F.R. § 1630.9, App. (1995). Once such a request has been made, “[t]he appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the qualified individual with a disability.” Id. Thus, the employee’s initial request for an accommodation triggers the employer’s obligation to participate in the interactive process. Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir.), cert. denied, 519 U.S. 1029, 117 S.Ct. 586, 136 L.Ed.2d 515 (1996). However, when an employer’s unwillingness to engage in a good faith interactive process leads to a failure to reasonably accommodate an employee, the employer violates the ADA. See Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir.1999) (citing Taylor v. Phoenixville School Dist., 174 F.3d 142,165 (3d Cir.1999); Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir.1996)). Cutrera argues that although she began the interactive process by notifying her supervisors and meeting with the LSU ADA coordinator, Appellees refused to discuss any steps that could be taken to accommodate her disability, and instead terminated her ■ immediately. Appellees contend that Cutrera simply informed them that she could not identify any reasonable accommodation which would enable her to perform the tasks required of her. Cutrera began work at the LSU Foundation on Tuesday, July 28, 1998. She testified that she was having difficulty reading many of the materials included in the donor files, such as handwritten notes and newspaper clippings, as well as type displayed on her computer screen, almost immediately after beginning work. Cutr-era testified that after discussing the problems she was having with her 'immediate supervisor, she scheduled an appointment with her vocational rehabilitation counselor for Friday, July 31, 1998, to discuss potential accommodations. Cutrera also scheduled a meeting with Appellee Marian Callier, the LSU ADA Coordinator, for the following Monday, August 3, 1998. Cutrera testified that" }, { "docid": "8767488", "title": "", "text": "to determine the appropriate reasonable accommodation, the employer may need to “initiate an informal, interactive process with the [employee] in need of the accommodation. This process should identify the precise limitations resulting from the disability and the potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3). An employer must make a “reasonable effort” to determine the appropriate reasonable accommodation, which “is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.” 29 C.F.R. Pt. 1630, App. § 1630.9 at 359. The employee must provide enough information about his or her limitations and desires so as to suggest at least the possibility that reasonable accommodation may be found in a reassignment job within the company. Smith v. Midland Brake, Inc., 180 F.3d 1154, 1172 (10th Cir.1999). Once the employer’s responsibilities within the interactive process are triggered by appropriate notice by the employee, both parties have an obligation to proceed in a reasonably interactive manner to determine whether the employee would be qualified, with or without reasonable accommodations, for another job within the company, and, if so, to identify an appropriate reassignment opportunity if any is reasonably available. Id. The interactive process does not dictate that any particular concession must be made by the employer; all the interactive process requires is that employers make a good-faith effort to seek accommodations. Taylor v. Phoenixville School Dist., 184 F.3d 296, 317 (3d Cir. 1999). Employers can show their good faith by taking steps such as meeting with the employee who requests an accommodation, requesting information about the condition and the employee’s limitations, asking the employee what he wants, showing some sign of having considered the employee’s request, and offering to discuss available alternatives when the employee’s request is too burdensome. Id. Before considering whether there has been a failure to engage in the interactive process, this court must first determine whether there is a genuine issue of material fact regarding the availability of a vacant position to accommodate the plaintiff. Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir.2001); Jachan v. New York" }, { "docid": "1511", "title": "", "text": "for many years, receiving high praise, there is no serious dispute that she satisfies- the prerequisites for the position. The critical issue is whether Taylor could, with reasonable accommodations, perform the essential functions of her job following her return from her hospitalization. The Interactive Process The ADA’s regulations state that: “To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the [employee] in need of accommodation. This process should identify the precise limitations resulting from the disability and the potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3). Similarly, the EEOC’s interpretive guidelines provide that: “Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.” 29 C.F.R. Pt. 1630, App. § 1630.9 at 359. We have previously recognized both this regulation and the EEOC’s interpretive guideline and applied them to a claim brought under the Rehabilitation Act, 29 U.S.C. § 701, et seq. Mengine v. Runyon, 114 F.3d 415, 419-20 (3d Cir.1997); see also Deane v. Pocono Medical Center, 142 F.3d 138, 149 (3d Cir.1998)(en banc). Based on the regulation and interpretive guidelines, we held in Mengine that “both parties have a duty to assist in the search for appropriate reasonable accommodation and to act in good faith.” Id. We noted that other circuits have taken this view. See, e.g., Beck v. University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir.1996)(“A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith.”); Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir.1996)(The “employee’s initial request for an accommodation ... triggers the employer’s obligation to participate in the interactive process ... ”). In Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281" }, { "docid": "22927288", "title": "", "text": "show that the shift manager position required more than three consecutive days of work. Although this accommodation may prove unreasonable once the essential requirements of the position are developed, summary judgment is inappropriate without such development. See id. The district court summarily dismissed this suggested accommodation because Fjellestad rejected this accommodation in her November 15, 1995 letter in which she generally stated: “Demotion or termination would not be consistent with employer reasonable accommodation duties.” We find the district court’s analysis ignored Pizza Hut’s obligation under the ADA to help determine the appropriate reasonable accommodation. An employer commits unlawful discrimination under the ADA if the employer does “not mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer].” 42 U.S.C. § 12112(b)(5)(A). The ADA’s regulations state that: “To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the [employee] with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3). (emphasis added). The EEOC’s interpretive guidelines also state that: “Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.” 29 C.F.R. § 1630, App. § 1630.9. (emphasis added). Other circuits have considered these regulations and interpretive guidelines and have written differing interpretations of them. Some circuits have concluded that both parties have a duty to act in good faith and assist in the search for appropriate reasonable accommodations. See Taylor v. Phoenixville Sch. Dist., 174 F.3d 142, 157 (3d Cir.1999); Beck v. University of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir.1996); Taylor" }, { "docid": "10691078", "title": "", "text": "the essential functions of a job requires a fact-specific inquiry into both the employer’s description of a job and how the job is actually performed in practice.” Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 140 (2d Cir.1995) (citation omitted). “[T]he determination of whether a particular modification is ‘reasonable’ involves a fact-specific, case-by-case inquiry that considers, among other factors, the effectiveness of the modification in light of the nature of the disability in question and the cost to the organization that would implement it.” Staron v. McDonald’s Corp., 51 F.3d 353, 356 (2d Cir.1995) (citations omitted). When an employee who satisfies the ADA’s other requirements requests an accommodation, this request triggers an interactive process: To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the quali fled individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. 29 C.F.R. § 1630.2(o )(3) (1995). Both parties must participate. “[T]he employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.” 29 C.F.R. Pt. 1630, App. § 1630.9; see also Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008) (“We have held that the ADA contemplates that employers will engage in an ‘interactive process’ with their employees and in that way work together to assess whether an employee’s disability can be reasonably accommodated.” (citation and quotation marks omitted)). The Third Circuit has described the operation of this process: “meetflng] with the employee who requests an accommodation, requesting] information about the condition and what limitations the employee has, ask[ing] the employee what he or she specifically wants, showfing] some sign of having considered [the] employee’s request, and offering] and discussing] available alternatives when the request is too burdensome.” Taylor v. Phoenixville Sch. Dist., 174 F.3d 142, 162 (3d Cir.1999). In Beck v. Univ. of Wisconsin Bd. of" }, { "docid": "21447637", "title": "", "text": "the interactive process to clarify Harris’s telecommuting request. The majority places an unreasonable and likely unachievable burden on employees to propose the perfect accommodation from the start of the process. That burden is directly at odds with the EEOC regulations’ insistence that both the employee and the employer have an obligation to participate in the interactive process and, through that participation, to develop and clarify whether a reasonable accommodation is possible. Ford did not seriously try to clarify Harris’s initial teleworking request, and instead focused on building a case for why she could not telework. The ADA’s regulations state that, “[t]o determine the appropriate reasonable accommodation [for an employee,] it may be necessary for the [employer] to initiate an informal, interactive process with the [employee].” 29 C.F.R. § 1630.2(o )(3). We, along with many other circuits, have held that the employer’s duty to participate in the interactive process in good faith is mandatory. See, e.g., Kleiber, 485 F.3d at 871 (citing cases). If there is a genuine dispute of material fact whether the employer sufficiently engaged in the interactive process, summary judgment for the employer should be denied. See, e.g., Phelps v. Optima Health, Inc., 251 F.3d 21, 27 (1st Cir.2001); Rehling v. City of Chi., 207 F.3d 1009, 1016 (7th Cir.2000); Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 954 (8th Cir.1999). Although the employee must trigger the interactive process by requesting a reasonable accommodation, an employee’s initial request does not need to identify the perfect accommodation from the start, as the majority seemingly requires. 29 C.F.R. § 1630, app. § 1630.9 (“In general, ... it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed.”). Such a requirement would render the employer’s duty to engage in the interactive process to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations” meaningless. 29 C.F.R. § 1630.2(o )(3); see also Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 316 (3d Cir.1999) (“The ADA’s regulations make clear that the purpose of the interactive process" }, { "docid": "2562395", "title": "", "text": "F.3d 155 (5th Cir.1996), the Fifth Circuit Court of Appeals wrote, “In general ... it is the responsibility of the individual with the disability to inform the employer that an accommodation is needed.” 29 C.F.R. § 1630.9, App. (1995). Once such a request has been made, “[t]he appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the qualified individual with a disability.” 29 C.F.R. § 1630.9, App. (1995). In other words, the responsibility for fashioning a reasonable accommodation is shared between the employee and employer. 29 C.F.R. § 1630.9, App. (1995). Taylor, 93 F.3d at 165. Similarly, the Seventh Circuit Court of Appeals has described this “interactive” process to determine “reasonable accommodation”: The employer has at least some responsibility in determining the necessary accommodation. .The federal regulations implementing the ADA state: To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. 29 C.F.R. § 16B0.2(o )(3) (1995). But the regulations envision an interactive process that requires participation by both parties: [ T]he employer must make reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability. 29 C.F.R., pt. 1630, app.; see also Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 677 (1st Cir.1995). * * * * * * Neither the ADA nor the regulations assign responsibility for when the interactive process fails. No hard and fast rule will suffice, because neither party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability. Rather, courts should look for signs of failure to participate in good faith or failure by one of the parties to make reasonable efforts to help the other party determine what specific accommodations are necessary. A party that obstructs" }, { "docid": "22927289", "title": "", "text": "to initiate an informal, interactive process with the [employee] with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3). (emphasis added). The EEOC’s interpretive guidelines also state that: “Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.” 29 C.F.R. § 1630, App. § 1630.9. (emphasis added). Other circuits have considered these regulations and interpretive guidelines and have written differing interpretations of them. Some circuits have concluded that both parties have a duty to act in good faith and assist in the search for appropriate reasonable accommodations. See Taylor v. Phoenixville Sch. Dist., 174 F.3d 142, 157 (3d Cir.1999); Beck v. University of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir.1996); Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir.1996). Other circuits have concluded that no such obligation exists and that an employer cannot be held independently liable under the ADA for simply failing to engage in an interactive process to determine reasonable accommodations. See Barnett v. U.S. Air, Inc., 157 F.3d 744, 752-53 (9th Cir.1998); Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir.1997); White v. York Int’l Corp., 45 F.3d 357, 363 (10th Cir.1996). We tend to agree with those courts that hold that there is no per se liability under the ADA if an employer fails to engage in an interactive process. However, we feel the interpretive guidelines set forth when it is “necessary” for an employer to initiate an informal interactive process with an employee in need of accommodation. The guidelines set forth the predicate requirement that when the disabled individual requests accommodation, it becomes necessary to initiate the interactive process. Although an employer will not be held liable under the ADA for failing to engage in an interactive" } ]

[ { "docid": "16588321", "title": "", "text": "otherwise qualified to perform the essential functions' of the job with or without reasonable accommodation, and (4) she has suffered an adverse employment decision because of her disability. Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir.1998); Stone v. City of Mt. Vernon, 118 F.3d 92, 96 (2d Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1044, 140 L.Ed.2d 109 (1998). The plaintiff bears the initial burden of showing that she can perform the essential functions of the job with or without reasonable accommodation. D’Amico, 132 F.3d at 151. This burden is not a heavy one. Gilbert, 949 F.2d at 642. “It is enough for the plaintiff to suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits.” Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir.1995). “Reasonable accommodation” may include adjustments to work schedules or other job restructuring. See 45 C.F.R. § 84.12(b). However, “‘reasonable accommodation’ does not mean elimination of any of the job’s essential functions.” Gilbert, 949 F.2d at 642. The parties do not dispute that for at least part of the time in question, Querry was disabled within the meaning of the ADA and that the City is an employer subject to the ADA. Rather, they contest, whether Querry is a “qualified individual” under the Act. According to defendants, Querry was not “otherwise qualified” for the position of police officer because she could not perform one of the essential functions of her job — regularly attending work. While it is not entirely clear from her papers, Querry seems to argue that she did not regularly appear for work because defendants did not provide her with reasonable accommodations, which exacerbated her condition, and made it impossible for her to work on a regular basis. The problem with Querrás position is that she has not suggested a plausible accommodation for her disability. Without question, her complaint does not suggest such an accommodation, which is grounds in itself for dismissing her claim. See Lincoln Cercpac v. Health and Hospitals Corp., 147 F.3d 165, 167 (2d" } ]

[ { "docid": "8224121", "title": "", "text": "0417(SJ), 2002 WL 32061800, at *6 (E.D.N.Y. Mar.14, 2002) (quoting Mazza, 108 F.Supp.2d at 175). The ADA does not require an employer to retain a person who fails to attend work on a regular basis because “attendance is an essential function of ... employment.” Bobrowsky v. New York City Bd. of Educ., No. 97 CV 874(FB), 1999 WL 737919, at *4, 13 (E.D.N.Y. Sept.16, 1999) (finding teacher not otherwise qualified due to excessive absenteeism; “[t]here could be no reasonable accommodation because attendance is an essential function of her employment.”), aff'd mem., 213 F.3d 625 (2d Cir.2000); see Daddazio v. Katherine Gibbs School, Inc., No. 98 CV 6861, 1999 WL 228344, at *5 (S.D.N.Y. Apr.20, 1999) (“ ‘regularly attending work’ is an essential function of virtually every job”); Baker v. City of New York, No. 97 CV 5829, 1999 WL 33115, at *4 (E.D.N.Y. Jan 22, 1999) (“Some degree of regular, predictable attendance is fundamental to most jobs”) (quotation omitted); see also Mazza, 108 F.Supp.2d at 175 (“An individual is not qualified for his position if he is unable to come to work.”); Mescall v. Marra, 49 F.Supp.2d 365, 374 (S.D.N.Y.1999) (finding school counselor who missed forty-one days of school over a two-and-a-half year period to be unqualified under the ADA); Micari v. Trans World Airlines, Inc., 43 F.Supp.2d 275, 281 (E.D.N.Y.1999) (Glasser, J.) (“It is not surprising that attendance has been found to be a prerequisite to performing the essential functions of a job”). There is a contrary line of cases holding that absenteeism is an “impermissible pretext for the employee’s disability” where the employer is aware that the employee’s “absences were related to a disability....” Morris, 153 F.Supp.2d at 502 (collecting cases). However, the instant case is distinguishable from that line of cases. Unlike here, the plaintiff in Morris medically documented each of his sick days. Moreover, the plaintiffs in the cases cited by Morris suffered from disabilities recognized under the ADA. Ramirez, on the other hand, did not provide documentation for eighteen of the sick days he took during the school year before the principal determined that Ramirez’s" }, { "docid": "12783542", "title": "", "text": "and other ailments substantially limited a major life activity. In this case, plaintiff has described severe limitations upon his ability to control elimination of wastes and to work during the relevant period, and the hospital records and undisputed medical evidence substantiate the severity of his condition. A trier of fact could reasonably find that plaintiff was disabled. Plaintiff has failed to create a triable issue that he was substantially limited in the major life activity of caring for oneself. Plaintiffs conclusory assertion in his affidavit, unsupported by any details or by his deposition testimony, that he had “difficulty” in performing such routine tasks as cooking, cleaning, shopping and showering is insufficient to make a prima facie showing that his ability to care for himself was substantially limited. Ryan, 135 F.3d at 871-72. The court also concludes, in the alternative, that plaintiff has presented sufficient evidence to show that he has a disability under the ADA because defendant regarded him as having an impairment which substantially limited major life activities, not just his ability to perform a particular specialized job. See Murphy v. United Parcel Serv., 527 U.S. 516, 119 S.Ct. 2133, 2137-38, 144 L.Ed.2d 484(1999); Heyman, 198 F.3d at 73; Reeves, 140 F.3d at 153-54. Since defendant terminated plaintiff in the belief that plaintiff was seriously disabled, unable to work, and that his prognosis was poor, defendant cannot now claim that there is not even a genuine factual issue concerning whether defendant regarded plaintiff as disabled. b. Qualified Individual Plaintiff has failed to present sufficient evidence to create a triable factual issue that he was able to perform the essential functions of his position, with or without accommodation. Therefore, defendant is entitled to summary judgment on this issue. An individual is not qualified for his position if he is unable to come to work. Bobrowsky v. New York City Bd. of Educ., 1999 WL 737919, at *4 (E.D.N.Y. 1999), aff'd v. Katherine Gibbs Sch., Inc., 1999 WL 228344, at *5 (S.D.N.Y.1999), aff'd mem., 205 F.3d 1322 (2d Cir.2000) (“ ‘[rjegularly attending work’ is an essential function of virtually every job”);" }, { "docid": "16281785", "title": "", "text": "also demonstrates that she is substantially limited in major life activities, including communicating and thinking. Accordingly, the Court finds Plaintiff has shown that Ms. Bost has a mental impairment that substantially limits one or more of her major life activities and, therefore, there is no genuine issue of material fact as to whether Ms. Bost had a disability during the span of her employment with Defendants. As noted, the second element Plaintiff must establish in order to prove Ms. Bost was a “qualified individual with a disability” is a showing that she could perform the essential functions of the employment position that she held or desired, with or without reasonable accommodation. In support of its approach to this issue Plaintiff relies on the ADA’s definition of “qualified individual with a disability,” by stating that such a person is one who, “ “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.’ ” (Mem. in Supp. of Pl.’s Mot. for Summ. J. at 12 (quoting 42 U.S.C. § 12111(8)) (emphasis supplied by Plaintiff).) Plaintiffs contention is that “Dollar General hired Bost for a position that did not require operation of a cash register or movement of heavy objects ...” and “[t]hat position was the employment position Bost ‘held’ within the meaning of the ADA.” (Mem. in Supp. of Pl.’s Mot. for Summ. J. at 13.) In contrast, Defendants’ primary argument is that Ms. Bost was terminated because she could not perform the essential functions of Dollar General’s store clerk position. (Br. in Supp. of Defs.’ Mot. for Summ. J. at 8.) Defendants point out that Dollar General stores have only three officially titled positions: manager, assistant manager, and clerk. (Id. at 2.) They maintain Ms. Bost was hired for the clerk position and therefore was required to perform the essential functions of that position as outlined in Dollar General’s manual of Standard Operating Procedures (“SOP”). (Id. at 3-4.) Evidence of whether a particular function is essential includes, but is not limited to: (i) The employer’s judgment as to which functions are" }, { "docid": "13901757", "title": "", "text": "(Defs. Mem. Supp. Summ. J. at 5.) To establish a prima facie case of employment discrimination under the ADA or the NYHRL, “ ‘a plaintiff must show: (1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered [an] adverse employment action because of his disability.’ ” Cameron v. Cmty. Aid For Retarded Children, Inc., 335 F.3d 60, 63 (2d Cir.2003) (quoting Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir.2001)). Plaintiffs claims under the NYHRL are subject to the same analysis because “there is no difference between the quantum or elements of proof required by the ADA and the NYHRL.” Mohamed v. Marriott, Int’l, 905 F.Supp. 141, 156 (S.D.N.Y.1995). There is no dispute as to the first two elements in the formulation. A. Whether Plaintiff is a “Qualifíed Individual with a Disability” Defendants first argue that plaintiff cannot establish a prima facie case because he is physically unable to perform the essential duties of a police officer and therefore is not a “qualified individual with a disability” under either statute. (Defs. Mem. Supp. Summ. J. at 5.) Plaintiff claims in response that there is a genuine issue of material fact about plaintiffs medical condition and ability to perform any police work, including light-duty assignments. (PI. Mem. Opp. Summ. J. at 10-12.) To be a “qualified individual,” plaintiff bears the burden of proving that he is qualified to perform the essential functions of a police officer in the Town, with or without reasonable accommodation. See, e.g., 42 U.S.C. § 12111(8); Querry v. Messar, 14 F.Supp.2d 437, 443-44 (S.D.N.Y.1998) (Conner, J.). Whether plaintiffs inability to perform certain tasks renders him unable to perform the essential functions of police work in the Town generally requires a fact-specific inquiry. Sharp v. Abate, 887 F.Supp. 695, 699 (S.D.N.Y.1995) (“[t]he interpretive guide to Part 1630 of the [ADA] regulations makes clear that the inquiry into whether a particular function is essential is a" }, { "docid": "16281774", "title": "", "text": "Dollar General’s position on the circumstances surrounding Ms. Bost’s termination is that: [w]hile visiting Store No. 4905, Mr. McCray observed Ms. Bost and questioned whether she could perform all of the essential functions of the clerk position. He then spoke with the Store Manager, Kathryn Von Cannon, to determine whether Ms. Bost was on the Defendant’s payroll or whether she was working at the facility through a program whereby Defendant was not responsible for her wages. Upon determining that she was on the payroll, unable to perform the essential functions of the job, and in light of the labor costs at the store in question, he directed Ms. Von Cannon to terminate Ms. Bost’s employment. (Mem. in Supp. of Pl.’s Mot. for Summ. J. Ex. 18, at No. 5.) As this statement indicates, in the context of this litigation Dollar General has asserted that Ms. Bost was terminated because she “could not perform the other essential functions of the clerk position with or without a reasonable accommodation ...” and therefore she “was not a qualified individual with a disability under the ADA .... ” (Br. in Supp. of Defs’ Mot. for Summ. J. at 17.) Defendants move for summary judgment solely on this basis arguing that, because Plaintiff cannot show that Ms. Bost was a quali fied individual with a disability, Plaintiff cannot establish its prima facie case. On the other hand, Plaintiff moves for summary judgment on the entire issue of liability, arguing: 1) that Plaintiff has established all the elements of its prima facie case, including showing that Ms. Bost was a qualified individual with a disability, 2) that Defendants have not produced evidence that it discharged Ms. Bost for a legitimate, non-discriminatory reason, and 3) even if Defendants have produced evidence of a legitimate, non-discriminatory basis for Ms. Bost’s discharge, the reason proffered by Defendants is pretextual. Alternatively, Plaintiff directly addresses the opposite side of Defendants’ Motion for Summary Judgment argument by contending that the Court should find as a matter of law that Ms. Bost is a qualified individual with a disability and grant summary judgment" }, { "docid": "13901758", "title": "", "text": "case because he is physically unable to perform the essential duties of a police officer and therefore is not a “qualified individual with a disability” under either statute. (Defs. Mem. Supp. Summ. J. at 5.) Plaintiff claims in response that there is a genuine issue of material fact about plaintiffs medical condition and ability to perform any police work, including light-duty assignments. (PI. Mem. Opp. Summ. J. at 10-12.) To be a “qualified individual,” plaintiff bears the burden of proving that he is qualified to perform the essential functions of a police officer in the Town, with or without reasonable accommodation. See, e.g., 42 U.S.C. § 12111(8); Querry v. Messar, 14 F.Supp.2d 437, 443-44 (S.D.N.Y.1998) (Conner, J.). Whether plaintiffs inability to perform certain tasks renders him unable to perform the essential functions of police work in the Town generally requires a fact-specific inquiry. Sharp v. Abate, 887 F.Supp. 695, 699 (S.D.N.Y.1995) (“[t]he interpretive guide to Part 1630 of the [ADA] regulations makes clear that the inquiry into whether a particular function is essential is a fact specific exercise to be made on a case by case basis”). An employee incapable of regular attendance is, however, not qhalified to perform the essential functions of a given position. See, e.g., Mazza v. Bratton, 108 F.Supp.2d 167, 175 (S.D.N.Y.2000) (“An individual is not qualified for his position if he is unable to come to work.”), aff'd, 9 Fed.Appx. 36 (2d Cir.2001), cert. denied, 534 U.S. 887, 122 S.Ct. 199, 151 L.Ed.2d 140 (2001). Whether an employee is qualified is dependent on that employee’s condition at the time of the alleged adverse employment action. See id. at 175 (“That plaintiffs condition improved following his termination cannot overcome the undisputed evidence from the earlier time period that plaintiff was not qualified to perform the essential functions of his position, and was not able to report for work at all.”). Moreover, “[e]vidence of whether a particular function is essential includes, but is not limited to the employer’s judgment as to which functions are essential, the written job description, the amount of time spent performing the function," }, { "docid": "13901761", "title": "", "text": "his capabilities; indeed, the most recent medical reports therein, dated April and May 2001, emphasize in a conclusory manner plaintiffs inability to work as a police officer, but do not link specifically plaintiffs disabilities with enumerated physical requirements of law enforcement work. See supra note 9. Accordingly, resolving all inferences in favor of plaintiff, we conclude that there is a genuine issue of material fact precluding summary judgment with respect to the second element of the ADA and NYHRL analysis. B. Whether Plaintiff’s Proposed Accommodation was Reasonable Defendants next contend that plaintiffs request for a light-duty assignment is not reasonable because plaintiff seeks that assignment on a permanent basis and granting that request would require defendants to create a new position, an obligation not imposed by the ADA or the NYHRL. (Defs. Mem. Supp. Summ. J. at 8-9.) Plaintiff, relying primarily on Howell v. Michelin Tire Corp., 860 F.Supp. 1488 (M.D.Ala.1994), argues in response that there is a genuine issue of material fact about whether the Town had available permanent light-duty police positions that it could assign him to. (PI. Mem. Opp. Summ. J. at 7-8.) Reassignment of a disabled employee to a vacant light-duty position is well established as a reasonable accommodation under the ADA. See, e.g., Kees v. Wallenstein, 973 F.Supp. 1191, 1196 (W.D.Wash.1997), aff'd, 161 F.3d 1196 (9th Cir.1998). An employer is not, however, obligated to create a new light-duty position for a disabled employee or make permanent previously temporary light-duty positions. See, e.g., Dalton v. Subaru-Isuzu Auto., Inc. 141 F.3d 667, 680 (7th Cir.1998) (concluding that an automobile manufacturer was not required to accommodate permanently disabled employees via assignment to a program that consisted of light-duty positions set aside for temporarily disabled employees); Kees, 973 F.Supp. at 1196-97 (relying on jail’s standard operating procedures manual and concluding that corrections officers’ light-duty assignments were not permanent); see also Hardy v. Vill. of Piermont, 923 F.Supp. 604, 610 (S.D.N.Y.1996) (Conner, J.) (concluding that creation of a light-duty police position was not “ ‘reasonable assistance or job modification by the employer’” pursuant to the Rehabilitation Act). Moreover, lax enforcement" }, { "docid": "13901793", "title": "", "text": "2001, plaintiff had been examined by Drs. Robbins and Mitarnura. In April 2001, Dr. Mitarnura again diagnosed plaintiff with spinal instability and wrote that plaintiff \"is not able to perform[] his occupation as a police officer” and that \"he has reached his maximum level of improvement following his lumbar spine surgery.” (Defs. Rule 56.1 Stmt. ¶ 68.) In May 2001, Dr. Robbins examined plaintiff and concluded that \"he is still unable to return to work as a police officer. I feel this would expose him to increased risk given the potential for altercation or other impact or heavy lifting or straining.” (Id. ¶ 69.) . N.Y. Civ. Serv. Law § 71 provides in relevant part: Where an employee has been separated from the service by reason of a disability resulting from occupational injury ... as defined in the workmen's compensation law, he or she shall be entitled to a leave of absence for at least one year, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position. . Plaintiff made these acknowledgments and admissions at his deposition. (Defs. Rule 56.1 Stmt., Ex. EEE at 179-80.) . This element is consistent with the ADA’s definitions section, which provides in relevant part: The term \"qualified individual with a disability” means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job. 42 U.S.C. § 12111(8). . Defendants argue that plaintiff was physically impaired in his ability to sit, walk and run and therefore could not perform the essential functions of a police officer. (Defs. Mem. Supp. Summ. J. at 7.) In support of their contention, they" }, { "docid": "5077260", "title": "", "text": "963. In all cases, an impairment, real or perceived, must be substantially limiting, which means “significant.” Wooten, 58 F.3d at 385. A significant impairment is one that is viewed as foreclosing generally the type of employment involved, not just a narrow range of job tasks. See Hutchinson, 883 F.Supp. at 390-91. In fact, the term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. 29 C.F.R. § 1630.20X3) (1995) (emphasis added). The C.F.R. ADA Appendix provides further elaboration: For example, an individual who cannot be a commercial airline pilot because of a minor vision impairment, but who can be a commercial airline co-pilot or a pilot for a courier service, would not be substantially limited in the major life activity of working. Nor would a professional baseball pitcher who develops a bad elbow and can no longer throw a baseball be considered substantially limited in the major life activity of working. 29 C.F.R. Pt. 1630, App.. § 1630.20) at 403 (1995). In both the pilot and pitcher examples, “the individuals are not substantially limited in the ability to perform any other major life activity and, with regard to the major life activity of working, are only unable to perform either a particular specialized job or a naxrow range of jobs.” Id. C. ADA — Essential Job Functions In addition to the initial showing of “disability,” the ADA plaintiffs prima facie case must also establish the plaintiff as a “qualified individual with a disability.” 42 U.S.C. § 12111(8) (emphasis added). An ADA claimant is “qualified” if, with or without the employer’s reasonable accommodation, he can perform the “essential functions” of the job. The “essential functions” are the “fundamental job duties of the position in question.” Haysman, 893 F.Supp. at 1101. Some ADA claimants argue whether the essential function claimed by the employer truly is" }, { "docid": "20964632", "title": "", "text": "that she was unable to drive or take transportation to travel to work. “Courts have consistently ruled that an employee cannot be considered otherwise qualified when she is unable to report to work at the time required, because she is not able to perform the essential functions of her job.” Lewis v. New York City Police Dep’t, 908 F.Supp.2d 313, 327 (E.D.N.Y.2012), aff'd sub nom. Lewis v. NYC Police Dep’t, 537 Fed.Appx. 11 (2d Cir.2013) (internal quotation marks and citation omitted); see also Rinaldi v. Quality King Distributors, Inc., 29 F.Supp.3d 218, 227 (E.D.N.Y.2014) (dismissing ADA claim where plaintiff could not demonstrate that she could perform an “essential function” of her employment, namely “showing up for work”); Dorgan v. Suffolk Cnty. Cmty. Coll., No. 12-CV-0330, 2014 WL 3858395, at *7 (E.D.N.Y. Aug. 4, 2014) (dismissing ADA claim where plaintiffs failure to report to work in three years demonstrated that she was unable to perform the essential functions of her job under the ADA). Indeed, courts have specifically noted that “[t]he ADA does not require employers to tolerate chronic absenteeism even when attendance problems are caused by an employee’s disability.” Lewis, 908 F.Supp.2d 313, 327 (quoting Mescall v. Marra, 49 F.Supp.2d 365, 374 n. 18 (S.D.N.Y.1999)); Castellano v. City of New York, 946 F.Supp. 249, 253 (S.D.N.Y.1996) (“[A]an individual who is totally disabled—that is, unable to perform the essential job functions even with reasonable accommodation—is not entitled to relief under [the ADA]”). Thus, plaintiff does not plausibly allege facts to meet the third prong that she is “otherwise qualified to perform the essential functions of the job.” Furthermore, as with her Title VII claim, plaintiff fails to allege any facts to plausibly suggest that any employment actions—adverse or otherwise—were based on her alleged disability. Heckman v. Town of Hempstead, 568 Fed.Appx. 41, 45 (2d Cir.2014) (affirming dismissal where plaintiffs allegations did not suggest a plausible inference that any of the defendants intentionally discriminated against him on the basis of his disability). Accordingly, plaintiffs claim for discrimination on the basis of her alleged disability is dismissed for failure to state a plausible" }, { "docid": "13901760", "title": "", "text": "the consequences of not requiring the employee to perform the function, the work experience of past employees in the position, and the current work experience of employees in similar positions.” Sharp, 887 F.Supp. at 698. We conclude that a genuine issue of material fact exists as to whether plaintiff was a qualified employee at the time of his termination. The record in this case is far from clear about the essential functions of the position of a police officer in the Town. The CBA does not contain a job description (PI. Rule 56.1 Stmt., Ex. 18) and if a formal written job description exists, neither of the parties has seen fit to cite or provide it for the Court’s review. Moreover, defendants have not cited testimonial evidence to support the contention that certain enumerated physical abilities are absolutely essential for performance of the position of Town of Wallkill police officer. Finally, the record is devoid of medical evidence contemporaneous with plaintiffs post-October 2001 requests for a return to light duty that might shed light on his capabilities; indeed, the most recent medical reports therein, dated April and May 2001, emphasize in a conclusory manner plaintiffs inability to work as a police officer, but do not link specifically plaintiffs disabilities with enumerated physical requirements of law enforcement work. See supra note 9. Accordingly, resolving all inferences in favor of plaintiff, we conclude that there is a genuine issue of material fact precluding summary judgment with respect to the second element of the ADA and NYHRL analysis. B. Whether Plaintiff’s Proposed Accommodation was Reasonable Defendants next contend that plaintiffs request for a light-duty assignment is not reasonable because plaintiff seeks that assignment on a permanent basis and granting that request would require defendants to create a new position, an obligation not imposed by the ADA or the NYHRL. (Defs. Mem. Supp. Summ. J. at 8-9.) Plaintiff, relying primarily on Howell v. Michelin Tire Corp., 860 F.Supp. 1488 (M.D.Ala.1994), argues in response that there is a genuine issue of material fact about whether the Town had available permanent light-duty police positions that it" }, { "docid": "14153124", "title": "", "text": "to mean “an individual with a disability who, with or without rea sonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8); see 29 C.F.R. § 1630.2(m); see also Stone v. City of Mount Vernon, 118 F.3d 92, 96 (2d Cir. 1997) (setting forth the definition of “qualified” under federal disability statutes), cert. denied, — U.S.-, 118 S.Ct. 1044, 140 L.Ed.2d 109 (1998). Plaintiff bears both the burden of production and persuasion on the issue of whether he is otherwise qualified to perform his particular job, despite his disability. Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 137 (2d Cir.1995); Serrano v. The Shield Inst. of David, Inc., No.94 Civ. 6745(MBM), 1997 WL 167042, at *5 (S.D.N.Y. April 9, 1997). “A plaintiff cannot be considered ‘otherwise qualified’ unless she [or he] is able, with or without assistance, to perform the essential functions of the job in question”. Borkowski, 63 F.3d at 137-38; see also Wiebke v. Hanjin Shipping Co., No. 97 Civ. 7287(JSM), 1999 WL 292554 (S.D.N.Y May 7, 1999) (plaintiff who failed to show that he was performing his duties satisfactorily failed to establish a prima facie case of age and national origin discrimination); Richardson v. Westchester County, No. 96 Civ. 9674(DLC), 1998 WL 373422, at *4 (S.D.N.Y July 6, 1998) (granting summary judgment against plaintiff because he failed to present sufficient evidence of his ability to perform essential functions of the job with or without reasonable accommodation). Courts have defined “essential functions” to mean the affirmative duties or inherent parts of a job. “To be qualified, an individual must satisfy the requisite skill, experience, education and other job-related requirements of the employment position.... ” Misek-Falkoff v. I.B.M. Corp., 854 F.Supp. 215, 226 (S.D.N.Y. 1994), aff'd, 60 F.3d 811 (2d Cir.1995). It is well established that the ADA does not protect plaintiffs who are unable to meet these requirements. See Altman v. Neiv York City Health and Hosp. Corp., 100 F.3d 1054, 1061 (2d Cir.1996) (affirming summary judgment for employer where “Altman’s disability would prevent, him from" }, { "docid": "8224120", "title": "", "text": "within the meaning of the ADA. An individual is “otherwise qualified for a job if she is able to perform the essential functions of that job, either with or without a reasonable accommodation.” Borkowski v. Valley Central Sch. Dist., 63 F.3d 131, 135 (2d Cir.1995). Ramirez has not demonstrated that he can perform an “essential function” of his employment position — showing up for work. Though all parties agree that Ramirez could perform his duties within the classroom as a teacher, Ramirez was absent from the classroom for nearly a third of the school year. To be a qualified individual, “[i]n addition to possessing the skills necessary to perform the job in question, an employee must be willing and able to demonstrate those skills by coming to work on a regular basis.” Mescall v. Marra, 49 F.Supp.2d 365, 374 (S.D.N.Y.1999) (quoting Tyndall v. Natl Educ. Ctrs. Inc., 31 F.3d 209, 213 (4th Cir.1994)). An “individual is not qualified for his position if he is unable to come to work.” Robarge v. Potter, No. 01 CV 0417(SJ), 2002 WL 32061800, at *6 (E.D.N.Y. Mar.14, 2002) (quoting Mazza, 108 F.Supp.2d at 175). The ADA does not require an employer to retain a person who fails to attend work on a regular basis because “attendance is an essential function of ... employment.” Bobrowsky v. New York City Bd. of Educ., No. 97 CV 874(FB), 1999 WL 737919, at *4, 13 (E.D.N.Y. Sept.16, 1999) (finding teacher not otherwise qualified due to excessive absenteeism; “[t]here could be no reasonable accommodation because attendance is an essential function of her employment.”), aff'd mem., 213 F.3d 625 (2d Cir.2000); see Daddazio v. Katherine Gibbs School, Inc., No. 98 CV 6861, 1999 WL 228344, at *5 (S.D.N.Y. Apr.20, 1999) (“ ‘regularly attending work’ is an essential function of virtually every job”); Baker v. City of New York, No. 97 CV 5829, 1999 WL 33115, at *4 (E.D.N.Y. Jan 22, 1999) (“Some degree of regular, predictable attendance is fundamental to most jobs”) (quotation omitted); see also Mazza, 108 F.Supp.2d at 175 (“An individual is not qualified for his position if" }, { "docid": "13901796", "title": "", "text": "do not necessarily preclude him from establishing a prima facie case under the ADA. (Pl. Mem. Opp. Summ. J. at 13.) A plaintiff who has filed for disability retirement must introduce sufficient evidence to demonstrate that the claims of total disability made in his retirement applications are not altogether inconsistent with his claims that reasonable accommodations would allow him to perform the essential functions of the police officer position. See Felix v. N.Y. City Transit Auth., 154 F.Supp.2d 640, 650-51 (S.D.N.Y.2001) (discussing Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 797, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999)), aff’d, 324 F.3d 102 (2d Cir.2003). Resolving all inferences in favor of plaintiff in deciding defendants’ summary judgment motion, we conclude that the lack of clarity in the record with respect to the essential functions of the Town’s police officer position creates a question of fact about whether plaintiffs claims that he could work with reasonable accommodations are inconsistent with the statements of complete disability contained in his retirement applications. . Ward did not, however, foreclose the possibility of a pregnant female officer being assigned light-duty tasks. (PL Rule 56.1 Stmt., Ex. 9 at 22.) . Plaintiff, pointing to the lack of a written light-duty policy, the light-duty assignments of Officers Lohr and Perone, and the indefinite nature of the initial order from Henneman mandating his return to light-duty work in October 2000, claims that there is a genuine issue of material fact with respect to the existence of permanent light-duty positions in the Town's police department. (Pl. Mem. Opp. Summ. J. at 8.) We disagree with plaintiff's strained reading of the record. As he himself admitted at his deposition, Lohr’s light-duty assignment was only temporary, Perone was terminated and no Town police officer has ever received a permanent light-duty position. See supra note 11 and accompanying text. . Accordingly, we need not reach the merits of defendants' proffered legitimate non-discriminatory reasons for terminating plaintiffs employment and not granting him a permanent light-duty position. (Defs. Mem. Supp. Summ. J. at 10-11.) . Once a plaintiff establishes a prima facie case of" }, { "docid": "22262096", "title": "", "text": "plaintiff must prove that (1) he has a disability; (2) he is a qualified individual; and (3) he was subjected to unlawful discrimination because of his disability. Id. A “qualified individual with a disability” is an “individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). The plaintiff retains at all times the burden of persuading the jury that reasonable accommodations were available. Moses v. American Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996). The employer, on the other hand, has the burden of persuasion on whether an accommodation would impose an undue hardship. Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1183 (6th Cir.1996). Holbrook contends that the City of Alpharetta Police Department discriminated against him on the basis of his disability by continually refusing to assign him the full duties of a police detective and accommodate him as required by the statute. Holbrook further avers that these actions constituted constructive discharge and forced him effectively to terminate his employment with the police department. The City of Alpharetta responds that Holbrook was not a “qualified individual” within the meaning of the ADA because he was unable to perform essential functions of his job with or without reasonable accommodations. The ADA provides that in determining what functions of a given job are deemed to be essential, “consideration shall be given to the employer’s judgment ... and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.” 42 U.S.C. § 12111(8). Regulations promulgated under the ADA further identify three factors that can be considered pursuant to an inquiry regarding whether a particular task is an essential part of a job: (1) the reason the position exists is to perform the function; (2) there are a limited number of employees available among whom the performance of the job function can be distributed; and (3) the function is highly specialized so that the" }, { "docid": "13901759", "title": "", "text": "fact specific exercise to be made on a case by case basis”). An employee incapable of regular attendance is, however, not qhalified to perform the essential functions of a given position. See, e.g., Mazza v. Bratton, 108 F.Supp.2d 167, 175 (S.D.N.Y.2000) (“An individual is not qualified for his position if he is unable to come to work.”), aff'd, 9 Fed.Appx. 36 (2d Cir.2001), cert. denied, 534 U.S. 887, 122 S.Ct. 199, 151 L.Ed.2d 140 (2001). Whether an employee is qualified is dependent on that employee’s condition at the time of the alleged adverse employment action. See id. at 175 (“That plaintiffs condition improved following his termination cannot overcome the undisputed evidence from the earlier time period that plaintiff was not qualified to perform the essential functions of his position, and was not able to report for work at all.”). Moreover, “[e]vidence of whether a particular function is essential includes, but is not limited to the employer’s judgment as to which functions are essential, the written job description, the amount of time spent performing the function, the consequences of not requiring the employee to perform the function, the work experience of past employees in the position, and the current work experience of employees in similar positions.” Sharp, 887 F.Supp. at 698. We conclude that a genuine issue of material fact exists as to whether plaintiff was a qualified employee at the time of his termination. The record in this case is far from clear about the essential functions of the position of a police officer in the Town. The CBA does not contain a job description (PI. Rule 56.1 Stmt., Ex. 18) and if a formal written job description exists, neither of the parties has seen fit to cite or provide it for the Court’s review. Moreover, defendants have not cited testimonial evidence to support the contention that certain enumerated physical abilities are absolutely essential for performance of the position of Town of Wallkill police officer. Finally, the record is devoid of medical evidence contemporaneous with plaintiffs post-October 2001 requests for a return to light duty that might shed light on" }, { "docid": "5077261", "title": "", "text": "who develops a bad elbow and can no longer throw a baseball be considered substantially limited in the major life activity of working. 29 C.F.R. Pt. 1630, App.. § 1630.20) at 403 (1995). In both the pilot and pitcher examples, “the individuals are not substantially limited in the ability to perform any other major life activity and, with regard to the major life activity of working, are only unable to perform either a particular specialized job or a naxrow range of jobs.” Id. C. ADA — Essential Job Functions In addition to the initial showing of “disability,” the ADA plaintiffs prima facie case must also establish the plaintiff as a “qualified individual with a disability.” 42 U.S.C. § 12111(8) (emphasis added). An ADA claimant is “qualified” if, with or without the employer’s reasonable accommodation, he can perform the “essential functions” of the job. The “essential functions” are the “fundamental job duties of the position in question.” Haysman, 893 F.Supp. at 1101. Some ADA claimants argue whether the essential function claimed by the employer truly is “essential,” as opposed to dispensable, or even pretextual (ie., employed more to discriminate than to advance a legitimate job requirement, see 42 U.S.C. § 12112(b)(6)). In response to a plaintiffs showing in that regard, the employer can point to [ejvidence of whether a particular function is essential[, which] includes, but is not limited to: (1) the employer’s judgment as to what is essential, (2) written job descriptions prepared before advertising or interviewing applicants for the job, (3) the amount of time spent on the job performing the function, (4) the consequences of not requiring the individual to perform the function, (5) the terms of a collective bargaining agreement, (6) the work experience of past incumbents in the job, and (7) the current work experience of incumbents in similar jobs. 29 C.F.R. § 1630.2(n)(3)(i-vii). Haysman, 893 F.Supp. at 1101. In that regard, “consideration shall be given to the employer’s judgment as to what functions of a job are essential....” 42 U.S.C. 12111(8); 29 C.F.R. § 1630.2(n)(3)(i) (1995); 29 C.F.R. Pt. 1630 App. § 1630.2(n) at 405-06" }, { "docid": "6030857", "title": "", "text": "can be expected to disappear when the “psychosocial stressor” is removed. It is therefore, hardly an “impairment” which “substantially limits one or more ... major life activities.” 29 U.S.C. § 706(8)(B). Adams, 723 F.Supp. at 1531. Courts have uniformly rejected the notion that inability to work at a particular position renders a person disabled under the ADA. See Weiler, 1995 WL 452977 at *5, 1995 U.S. Dist. LEXIS at *13-14 (and cases cited therein). The EEOC regulations provide that with respect to the major life activity of working, the term “substantially limits” means “significantly restricted in the ability to perform either a class or a broad range of jobs in various classes.... The inability to perform a single particular job does not constitute a substantial limitation in the major life activity of working.” 29 C.F.R. § 1680.2(j)(3). Plaintiff’s inability to get along with Clara Johnson and Nicki Lazzaro does not substantially limit her ability to work in general — it may just limit her ability to work with these particular individuals. Therefore, based on the foregoing testimony of the plaintiff that her work difficulties were specifically due to a conflict with her supervisor, plaintiff, as a matter of law, is not “disabled” according to the ADA. B. Qualified Individual Even if plaintiff were able to show that she were disabled under the ADA, plaintiff still could not prevail on this claim because she is unable to establish that she is qualified for the position. The ADA defines the term “qualified individual with a disability” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). The first step in determining whether an employee is “qualified” requires the court to determine whether this person can perform the essential functions of the job. Inquiry into whether a particular function is “essential” focuses on whether employees in the position are actually required to perform that function. See 29 C.F.RApp. § 1630.2(n) (1991). The key determination turns on “whether removing the function would fundamentally" }, { "docid": "13901795", "title": "", "text": "cite several cases, including Champ v. Balt. County, 91 F.3d 129 (4th Cir.1996) (unpublished table opinion), and Maldonado v. Mun. of Ponce, 206 F.Supp.2d 198, 203 (D.P.R.2002) that describe the essential functions of police officers in other municipalities. (Defs. Mem. Supp. Summ. J. at 7-8.) These cases are, however, instructive at best in what remains a fact and circumstances-specific inquiry; they are not \"precedents” prescribing the essential qualifications for employment as a police officer. See Sharp, 887 F.Supp. at 698-99 (describing defendant’s argument that correction officers must be able to engage in inmate contact as one of \"substantial initial appeal” and holding that an issue of fact existed as to whether inmate supervision was an \"essential function” because even \"able-bodied correction officers are placed in clerical and administrative positions within the Department.”). . Defendants also cite plaintiffs three separate applications for disability retirement in support of their argument that he is not a qualified employee under the ADA. (Defs. Mem. Supp. Summ. J. at 6.) As plaintiff argues correctly, however, his applications for disability retirement do not necessarily preclude him from establishing a prima facie case under the ADA. (Pl. Mem. Opp. Summ. J. at 13.) A plaintiff who has filed for disability retirement must introduce sufficient evidence to demonstrate that the claims of total disability made in his retirement applications are not altogether inconsistent with his claims that reasonable accommodations would allow him to perform the essential functions of the police officer position. See Felix v. N.Y. City Transit Auth., 154 F.Supp.2d 640, 650-51 (S.D.N.Y.2001) (discussing Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 797, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999)), aff’d, 324 F.3d 102 (2d Cir.2003). Resolving all inferences in favor of plaintiff in deciding defendants’ summary judgment motion, we conclude that the lack of clarity in the record with respect to the essential functions of the Town’s police officer position creates a question of fact about whether plaintiffs claims that he could work with reasonable accommodations are inconsistent with the statements of complete disability contained in his retirement applications. . Ward did not, however, foreclose" }, { "docid": "13901794", "title": "", "text": "the performance of the duties of his or her position. . Plaintiff made these acknowledgments and admissions at his deposition. (Defs. Rule 56.1 Stmt., Ex. EEE at 179-80.) . This element is consistent with the ADA’s definitions section, which provides in relevant part: The term \"qualified individual with a disability” means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job. 42 U.S.C. § 12111(8). . Defendants argue that plaintiff was physically impaired in his ability to sit, walk and run and therefore could not perform the essential functions of a police officer. (Defs. Mem. Supp. Summ. J. at 7.) In support of their contention, they cite several cases, including Champ v. Balt. County, 91 F.3d 129 (4th Cir.1996) (unpublished table opinion), and Maldonado v. Mun. of Ponce, 206 F.Supp.2d 198, 203 (D.P.R.2002) that describe the essential functions of police officers in other municipalities. (Defs. Mem. Supp. Summ. J. at 7-8.) These cases are, however, instructive at best in what remains a fact and circumstances-specific inquiry; they are not \"precedents” prescribing the essential qualifications for employment as a police officer. See Sharp, 887 F.Supp. at 698-99 (describing defendant’s argument that correction officers must be able to engage in inmate contact as one of \"substantial initial appeal” and holding that an issue of fact existed as to whether inmate supervision was an \"essential function” because even \"able-bodied correction officers are placed in clerical and administrative positions within the Department.”). . Defendants also cite plaintiffs three separate applications for disability retirement in support of their argument that he is not a qualified employee under the ADA. (Defs. Mem. Supp. Summ. J. at 6.) As plaintiff argues correctly, however, his applications for disability retirement" } ]

[ { "docid": "3187851", "title": "", "text": "evidence, there is only one verdict which reasonable jurors could find. Fleming v. McEnany, 491 F.2d 1353 (2nd Cir. 1974). The question of whether the evidence is sufficient to create an issue of fact for the determination of the jury is solely a question of law to be determined by the trial court. United States ex. rel. Weyerhouser Co. v. Bucon Construction Company, 430 F.2d 420 (5th Cir. 1970); Roche v. New Hampshire Nat’l Bank, 192 F.2d 203 (1st Cir. 1951). The standard to be applied by the trial court is whether there is evidence upon which the jury could properly find a verdict for the party against whom the motion is directed. Ralston Purina Company v. Edmunds, 241 F.2d 164 (4th Cir. 1957), cert. denied, 353 U.S. 974, 77 S.Ct. 1059, 1 L.Ed.2d 1136 (1957). In ruling upon such a motion the Court must view the evidence and any inferences which may be reasonably drawn from it in the light most favorable to the party opposing the motion for a directed verdict. Riske v. Truck Insurance Exchange, 490 F.2d 1079 (8th Cir. 1974); Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968 (1st Cir. 1969); D’Andrea v. Sears, Roebuck and Co., 109 R.I. 479, 287 A.2d 629 (1972). If the evidence is of such quality and weight that reasonable persons might reach different conclusions in the exercise of impartial judgment, a motion for a directed verdict must be denied. In support of its motion for judgment in its favor notwithstanding said verdicts, the defendant is reasserting the same arguments made by it in support of its motion for directed verdicts at the conclusion of the evidence. As was indicated at that time, it was this Court’s considered opinion that there was sufficient evidence on the issues of defendant’s negligence, and its breach of warranty and the cause of Sandra Oresman’s injuries to require submission of this case to the jury. Similarly, there was sufficient evidence for the submission to the jury for its determination the issue of whether defendant’s pills were in a defective condi tion, unreasonably dangerous to" } ]

[ { "docid": "1986720", "title": "", "text": "directed verdict.” In a long string of cases, we have consistently clung to this view. See, e.g., Freeman v. Package Machinery Co., 865 F.2d 1331, 1343 (1st Cir.1988); Della Grotta v. State of Rhode Island, 781 F.2d 343, 349-50 (1st Cir.1986); R & R Assoc., Inc. v. Visual Scene, Inc., 726 F.2d 36, 38 (1st Cir.1984); Martinez-Moll v. Levitt & Sons, 583 F.2d 565, 569-70 (1st Cir.1978); Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968, 971-72 (1st Cir.1969); Home Ins. Co. of New York v. Davila, 212 F.2d 731, 733 (1st Cir.1954); cf. Systemized of New England, Inc. v. SCM, Inc., 732 F.2d 1030, 1035-36 (1st Cir.1984) (party may not base motion for judgment n.o.v. on a ground not contained in antecedent directed verdict motion). To be sure, defendants moved for a directed verdict at the end of plaintiffs’ case in chief, but that motion was waived by failure to renew it when all the evidence was closed. See R & R Assoc., 726 F.2d at 38; Gillentine v. McKeand, 426 F.2d 717, 722-23 (1st Cir.1970). Appellants’ reliance on Urti v. Transport Commercial Corp., 479 F.2d 766 (5th Cir.1973) and Little v. Bankers Life & Cos. Co., 426 F.2d 509 (5th Cir.1970), for a different rule is completely misplaced. In those cases—unlike here—a timely motion for new trial had been made, Fed.R.Civ.P. 59(a), calling into question the weight of the evidence. Urti, 479 F.2d at 769; Little, 426 F.2d at 511. Thus, notwithstanding that the losing party had neglected to move for an instructed verdict at the close of all the evidence, the Fifth Circuit conducted a limited review of the sufficiency claim to determine the propriety of the district court’s denial of the motion for new trial. Urti, 479 F.2d at 769; Little, 426 F.2d at 511. The same praxis obtains in this circuit. See, e.g., Freeman, 865 F.2d at 1343; Systemized, 732 F.2d at 1036-37; R & R Assoc., 726 F.2d at 38 & n. 2. But, defendants—who never moved under Rule 50(b) for judgment n.o.v. or under Rule 59(a) for retrial of the section 1983 claims—take" }, { "docid": "22188791", "title": "", "text": "he wished them to be otherwise. The battle plan of the admiral is a valid datum in assessing the intentions of the captain of a single ship in the flotilla. We are left with the conviction that, in this case, both facets of the pretext inquiry were jury questions. The liability aspect of the appeal can, therefore, be encapsulated in but a single sentence. We think neither that justice miscarried nor that the district judge misused his discretion in declining to grant appellant a new trial. F. The Motion for Judgment Notwithstanding the Verdict. The conclusion that the evidence justified rejection of an unconditional new trial, see supra Part 1(E), renders moot PMC's wishful assignment of error concerning the denial of its posttrial motion for judgment notwithstanding the verdict, Fed.R.Civ.P. 50(b). We note first that appellant neglected to move for a directed verdict either at the close of Freeman's case or at the close of all the evidence. This omission is not a fribbling one: Rule 50(b) makes a timely directed verdict motion a prerequisite for consideration of a motion for judgment n.ov. We have construed the requirement stringently, although permitting a rare exception where there has been substantial (albeit not literal) compliance. See Della Grotta v. State of Rhode Island, 781 F.2d 343, 349-50 (1st Cir.1986); Martinez-Moll v. Levitt & Sons, 583 F.2d 585, 569-70 (1st Cir.1978); Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968, 971-72 (1st Cir.1969). PMC claims that it fits within these constricted confines because it tendered the \"functional equivalent\" of a directed verdict motion. We decline the invitation to push deeply into this bramble. The substantive predicate necessary to sustain a motion for judgment n.o.v. is at least as demanding as that needed to justify a new trial. See, e.g., Wagenmann v. Adams, 829 F.2d 196, 200-01 (1st Cir.1987) (discussing alternative standards). Because appellant has not met the new trial test, see supra Part 1(E), it is evident that, even if its j.n.o.v. motion was not procedurally defaulted-a point on which we offer no opinion-its claim of Rule 50(b) error would be unavailing. II." }, { "docid": "23108884", "title": "", "text": "issues of fact but only to determine whether there is a genuine issue to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2509-11, 91 L.Ed.2d 202 (1986); Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). The fact that both sides move for summary judgment does not guarantee that there is no material issue of fact to be tried. See Schwabenbauer v. Board of Education, 667 F.2d 305, 313-14 (2d Cir.1981). In determining whether there is a genuine issue of fact, the court is required to assess each motion on its own merits and to view the evidence in the light most favorable to the party opposing the motion, drawing all reasonable inferences in favor of that party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). If the presentation by the nonmoving party in support of its version of the facts is such that the court could not properly direct a verdict against it in a jury trial, or enter a judgment in favor of the moving party notwithstanding a verdict favorable to the nonmoving party, the motion for summary judgment may not properly be granted. See Anderson v. Liberty Lobby, Inc., 106 S.Ct. at 2511 (summary judgment standard “mirrors the standard for a directed verdict under [Fed.R.Civ.P. 50(a)]”); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2524, at 541-42 (1971) (standard for assessing sufficiency of evidence to create an issue of fact for jury “is the same whether it arises in the procedural context of a motion for directed verdict or of a motion for judgment notwithstanding the verdict”). In the present case, we conclude that Eastman’s factual presentation in the district court was sufficient to warrant denial of the government’s motion for summary-judgment. Taken in the light most favorable to Eastman, that evidence showed that on April 12, Eastman hand-delivered its request for an extension to IRS representative Migliore; Migliore’s response was not that" }, { "docid": "15359664", "title": "", "text": "next morning the arrested individuals were taken to the county court to enter their pleas. They were then released. Rymer subsequently filed a complaint in the district court under 42 U.S.C. § 1983. The complaint named numerous defendants. The court dismissed the complaint as to some of the defendants and directed a verdict as to the other defendants except Officer Stillwell and the City of Shepherdsville (City). The jury returned a verdict against Stillwell for $32,000 as compensatory damages and $50,000 as punitive damages and against the City for $25,000 as compensatory damages. A judgment was entered upon that verdict on May 26, 1983. The defendants’ motions for both a new trial and' judgment notwithstanding the verdict were denied. Both defendants appeal and argue that the amount of the award is excessive. Further, the City argues that the district court erred by not dismissing the City prior to submitting the case to the jury and, alternatively, argues that its motion for judgment notwithstanding the verdict should have been granted. The City’s contention must be treated as a request for a new trial because the City did not move for a directed verdict and, therefore, judgment notwithstanding the verdict in favor of the City would have been inappropriate. A party against whom a verdict is rendered must comply with Federal Rule of Civil Procedure 50 to obtain appellate review of a claim that he is entitled to judgment as a matter of law. If a party moves for judgment notwithstanding the verdict after having failed to move for a directed verdict at the close of the evidence, an appellate court cannot order judgment for him. Fed.R.Civ.P. 50(b); see Trotter v. Todd, 719 F.2d 346, 350 (8th Cir.1983). If the evidence was insufficient as a matter of law, however, the court can order a new trial. C. Wright & A. Miller, Federal Practice and Procedure '§§ 2537, 2540. Because the City is arguing that the evidence was insufficient as a matter of law, we will treat the City’s argument as a request for a new trial. The evidence viewed most favorably to" }, { "docid": "22201689", "title": "", "text": "the motion for a new trial. Issues one and two, both in the directed verdict and judgment notwithstanding the verdict contexts, are dispositive of this appeal, mooting issues three through five, which therefore need not be addressed. II. DISCUSSION A. STANDARD OF REVIEW The motions for a directed verdict and for a judgment notwithstanding the verdict are embodied in the same federal rule, Rule 50 of the Federal Rules of Civil Procedure. This is more than mere coincidence: the directed verdict and judgment notwithstanding the verdict determinations require the same analysis, merely undertaken at different points in the proceedings. These motions are judged by the same legal standard. Valdes v. Karoll’s, Inc., 277 F.2d 637, 638 (7th Cir.1960); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2524, at 542-42 (1971). In addition, this single standard applies both to the trial court’s determination and the appellate court’s review of the motions. 9 C. Wright & A. Miller, id. The connection extends to a requirement that the motion for judgment notwithstanding the verdict be preceded by a motion for a directed verdict, which must be sufficiently specific. Fed.R. Civ.P. 50(a); Parts and Elec. Motors, Inc. v. Sterling Elec., 826 F.2d 712, 716 (7th Cir.1987); McKinnon v. City of Berwyn, 750 F.2d 1383 (7th Cir.1984). Motions for directed verdict and judgment notwithstanding the verdict are analyzed according to the same formulation: We must determine whether the evidence justifies submission of the case to the jury. Lambie v. Tibbits, 7 Cir., 1959, 267 F.2d 902, 903. Such a motion should be denied “where the evidence, along with all inferences to be reasonably drawn therefrom, when viewed in the light most favorable to the party opposing such motion, is such that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions.” Smith v. J.C. Penney Company, 7 Cir., 1958, 261 F.2d 218, 219. Valdes, 277 F.2d at 638. Accord Benson v. Allphin, 786 F.2d 268, 279 (7th Cir.) (“The standard for granting a directed verdict is very generous to the nonmovant. The trial court must view the" }, { "docid": "22850022", "title": "", "text": "F.2d 1256, 1266 (D.C.Cir.1978). Summary judgment therefore was inappropriate. Viewed as a whole a ease went to the jury which could have been decided either way. There was therefore no basis, on the merits, for Smith’s motion for judgment notwithstanding the verdict. But even if there had been, it was waived and may not be pursued on appeal by the appellant-who failed to move for a directed verdict after the close of all the evidence. See Martinez Moll v. Levitt & Sons of Puerto Rico, Inc., 583 F.2d 565, 568-70 (1st Cir. 1978). 5A Moore’s Federal Practice ¶ 50.08 at 50-85 to -91 (1980). The exceptions for cases where (a) there has been substantial compliance with the rule, as in Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968, 971-72 (1st Cir. 1969), (b) where manifest injustice will otherwise occur since the verdict is wholly without legal support, Sojak v. Hudson Waterways Corp., 590 F.2d 53, 54-55 (2d Cir. 1978), (c) where the trial judge in effect excused the failure to renew the motion, Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d at 971-72, and (d) where the additional evidence was brief and inconsequential, Beaumont v. Morgan, 427 F.2d 667, 670 (1st Cir. 1970), are not applicable here. See 5A Moore’s Federal Practice ¶ 50.08 at 50-88 to -91 (1980). III. Were the District Court’s Findings as to Smith’s Title VII Claims of Discrimination on Grounds of Sex or Religion Clearly Erroneous? Title VII of the Civil Rights Act protects employees from various kinds of discrimination, particularly for our present purposes discrimination on grounds of sex or of religion. To prevail on a Title VII claim the employee must prove that he or she was a victim of unlawful discrimination. As we have previously discussed, in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court set forth the general order and allocation of proof in a discrimination action brought by a private individual. To reiterate: The complainant in a Title VII trial must carry the initial burden under the statute of" }, { "docid": "1531475", "title": "", "text": "the action of the district court in instructing a verdict and entering judgment in favor of Weyerhaeuser we will state some general review standards which are applicable not only to the claim of Circle F that the district court erred with respect to Weyerhaeuser but also to the claim that the district court erred in denying Circle F’s own motion for judgment notwithstanding the verdict. Both claims involved questions of the sufficiency of the evidence to take an issue to a jury, and in evaluating those claims it makes no difference whether we apply federal law or whether we apply the law of Arkansas because the federal and state standards are substantially the same. Marshall v. Humble Oil & Refining Co., 459 F.2d 355, 358-59 (8th Cir. 1972). The same standard is applied whether the question of evidential sufficiency arises before verdict in connection with a motion for a directed verdict or whether it arises after verdict in connection with a motion for judgment notwithstanding the verdict, and this court on appeal is required to apply the same standards that the district court was required to apply initially. See 9 Wright & Miller, Federal Practice & Procedure, Civil, § 2524, and cases cited including Schneider v. Chrysler Motors Corp., 401 F.2d 549, 554-55 (8th Cir. 1968). In the recent case of Davis v. Burlington Northern, Inc., 541 F.2d 182, 186 (8th Cir.), cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 613 (1976), this court said: . . The actual question presented is whether the district court properly denied the defendant’s motion for a judgment notwithstanding the verdict, pursuant to Rule 50(b), Fed.R.Civ.P. This motion cannot be granted, of course, unless as a matter of law the opposing party failed to make a case and a verdict in the movant’s favor should have been directed. (Citations omitted.) We must now view the evidence in the light most favorable to sustaining the jury’s findings and must give the prevailing party the benefit of every reasonable inference which may be drawn from the evidence. (Citations omitted.) Judgment notwithstanding the verdict must" }, { "docid": "21862769", "title": "", "text": "the close of the whole case. In contrast to the lack of clarity in the defendant’s post-verdict motion, the omission of a motion for a directed verdict at the close of the whole case was no longer curable. Still it does not necessarily follow that it is now incumbent upon us to insist on compliance with the letter of Rule 50(b) when plaintiff’s counsel acquiesced in a departure from it. There is a flourishing body of case law on the subject of when a motion for judgment n.o.v. may be entertained despite failure to move for a directed verdict at the close of the case. Some of the more important decisions, which are not altogether consistent, are Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968, 971-72 (1 Cir.1969); Moran v. Raymond Corp., 484 F.2d 1008, 1010-14. (7 Cir.1973); Pittsburgh-Des Moines Steel Co. v. Brookhaven Manor Water Co., 532 F.2d 572 (7 Cir.1976); De Marines v. KLM Royal Dutch Airlines, 580 F.2d 1193 (3 Cir.1978); and Martinez Moll v. Levitt & Sons of Puerto Rico, 583 F.2d 565, 568-70 (1 Cir. 1978). Other cases are collected in 9 Wright & Miller, Federal Practice and Procedure: Civil § 2537, at 597-98 n. 32 (see particularly Supp.1982). The Moore treatise begins by saying, [i]t must be remembered that when a defendant, after moving for a directed verdict at the conclusion of the plaintiff's case, fails to renew his motion at the close of all the evidence, he is deemed to have waived his right to move for judgment notwithstanding the verdict. 5A Moore, Federal Practice § 50.08, at 50-89 and 50-90 (2d ed. 1984), but then adds, [hjowever, some fairly recent cases have held that a motion for judgment notwithstanding may be granted despite the party’s failure to renew his motion for a directed verdict where: (1) The court indicated that the renewal of the motion would not be necessary to preserve the party’s rights; and (2) The evidence following the party’s unrenewed motion for a directed verdict was brief and inconsequential. Id. at 50-90. This case meets the first branch of" }, { "docid": "7210361", "title": "", "text": "fails to qualify as a motion for a judgment n.o.v. While some courts have strictly enforced Rule 50(b), “others have adopted a more flexible approach toward a party’s noncompliance with its terms.” Bohrer, 715 F.2d at 216 (citations omitted). While “[i]t is certainly the better and safer practice to renew the motion for directed verdict at the the close of all the evidence,” [t]he application of Rule 50(b) in any case “should be examined in the light of the accomplishment of [its] particular purpose as well as in the general context of securing a fair trial for all concerned in the quest for truth.” Bonner v. Coughlin, 657 F.2d 931, 939 (7th Cir.1981) (citations omitted). Commentators have also noted the judicial trend toward a flexible approach to Rule 50(b): [S]ome fairly recent cases have held that a motion for judgment notwithstanding may be granted despite the party’s failure to renew his motion for a directed verdict where: (1) The court indicated that the renewal of the motion would not be necessary to preserve the party’s rights; and (2) The evidence following the party's unrenewed motion for a directed verdict was brief and inconsequential. 5A Moore’s Federal Practice § 50.08, at 50-90 (2d ed. 1984). See also 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2537, at 597-98 (1971). Under the unique facts of this case, we are convinced that TRW’s technical noncompliance with Rule 50(b) in failing to renew its directed verdict motion at the end of Napolitan’s testimony did not bar the district court from considering TRW’s post-verdict motion to “renew our motion for a directed verdict” as a motion for a judgment n.o.v. The district court took TRW’s motion for a directed verdict, made at the close of Boynton’s case, under advisement and indicated its firm intent to “get the case to the jury.” The evidence TRW introduced in its case-in-chief was brief and largely cumulative of the testimony previously elicited from Boynton’s witnesses. Under the circumstances, we find that no logical purpose would be served by holding that the district court was precluded" }, { "docid": "4640922", "title": "", "text": "F.Supp. 66, 69 (E.D.Pa.1963). Nor is it required that each conspirator participate in or have knowledge of all the operations of the conspiracy. Berenbeim v. United States, 164 F.2d 679, 684 (10th Cir.1947), cert. denied sub nom. Schechter v. United States, 333 U.S. 827, 68 S.Ct. 454, 92 L.Ed. 1113 (1948). Defendant enticed the Saints to become knowing participants in its unlawful conspiracy, and defendant’s past and future acts in furtherance of its unlawful objectives were the acts of all. United States v. Ward Baking Co., 224 F.Supp. at 70. The requisite plurality inhered in all actions undertaken by BCBSK furthering its unlawful scheme, and Johnston’s October 4 letter was not the “unilateral act” of defendant. The jury’s finding of market restraint must be upheld. Is Wesley Entitled to Recover Damages Under § 1? Defendant argues Wesley is not entitled to recover damages under § 1 for two reasons: first, Wesley has no standing to pursue its § 1 claim; second, there is no adequate evidentiary support for the damages awarded Wesley by the jury. Throughout this litigation, defendant has never challenged Wesley’s standing under § 1, and it may not do so now. Indeed, defendant’s position at the summary judgment stage was that Dr. Reazin, New Century, and HCP lacked standing because Wesley was the only plaintiff with appropriate standing under § 1. Reazin I, 635 F.Supp. at 1317. Failing to raise this issue, either at summary judgment or on its motion for directed verdict, defendant is now barred from pursuing. this contention on a motion for JNOV or new trial. 9 Wright & Miller, Federal Practice and Procedure: Civil § 2537, p. 598 (a Rule 50 motion for judgment notwithstanding the verdict is only a renewal of the motion for directed verdict made at the close of the evidence, and cannot assert a ground not included in the motion for directed verdict); 10 Wright & Miller, Federal Practice and Procedure: Civil § 2805, p. 40 (a party may not seek a new trial under Rule 59 on the basis of a theory not urged at the first trial);" }, { "docid": "18438319", "title": "", "text": "the “pro se” motion for a new trial, which alleges the discovery of new and material evidence; and, 5) a motion by plaintiffs to deny plaintiffs’ counsel a claimed attorneys’ lien. I. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT Plaintiffs move for the entry of judgment in favor of the plaintiffs under eight years of age, notwithstanding the jury’s verdict against all of the plaintiffs. Plaintiffs, citing Roberts v. Fisher, 169 Colo. 288, 455 P.2d 871 (1969), contend that individuals under the age of eight cannot be found negligent, and therefore the jury’s verdict, that those plaintiffs under eight years of age were fifty percent negligent, cannot stand. Plaintiffs did not move for a directed verdict on this issue at the close of the evidence. The plain meaning of Rule 50(b) of the Federal Rules of Civil Procedure is that a motion for judgment notwithstanding the verdict will not lie unless it was preceded by a motion for a directed verdict made at the close of all the evidence; see Wright & Miller, Federal Practice and Procedure: Civil § 2537 at 596 (1971). Because the plaintiffs’ attorneys did not move for a directed verdict on this issue, I deny the motion for entry of judgment notwithstanding the verdict. II. PLAINTIFFS’ MOTION FOR A NEW TRIAL This motion for a new trial, filed by plaintiffs’ attorneys, asserts that I made 22 errors. The motion contains one citation of authority. In contravention of Rule 408(A) of the Local Rules of Practice for this district, the motion fails to cite the section in the Federal Rules of Civil Procedure under which the movant requests relief. Despite these not insignificant shortcomings, I will address the 22 contentions: I have divided them into the following categories: A) evidentiary rulings; B) jury selection; C) jury instructions; and, D) directed verdicts and motions to amend. A. Evidentiary Rulings Plaintiffs contend that it was error not to allow Denver’s mayor, Federico Pena, to testify about the Park incident and about a letter he wrote to Wilma Martinez recommending that this lawsuit be filed. Mayor Pena was a state legislator" }, { "docid": "1074506", "title": "", "text": "below, there was no evidence that Officer Coons was acting pursuant to any “policy or custom” of the State of Rhode Island when he violated Della Grotta’s rights. The State contends, therefore, that the district court erred in failing to grant its motions for judgment notwithstanding the verdict or, in the alternative, for a new trial. The State, however, forfeited its right to judgment n.o.v. by failing to move for a directed verdict at the close of all the evidence. Under Fed.R.Civ.P. 50(b), the making of a motion for directed verdict at the close of all the evidence is a prerequisite to a motion for judgment n.o.v. R &R Associates, Inc. v. Visual Scene, Inc., 726 F.2d 36, 38 (1st Cir.1984); Martinez Moll v. Levitt & Sons of Puerto Rico, 583 F.2d 565, 568 (1st Cir.1978); LaForest v. Autoridad de las Fuentes Fluviales, 536 F.2d 443, 445 (1st Cir.1976); 9 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 2537 (1971). The State maintains that its “technical noncompliance” with Rule 50(b) should not have barred its motion for judgment n.o.v. The State’s noncompliance with Rule 50(b) was far more than technical, however; at no time did the State inform the district court (much less make a formal motion) that it desired a review of all the evidence for sufficiency as a matter of law. The State would also like to fit its case within the very narrow exception adopted by this court in Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968, 971-72 (1st Cir.1969). See also Beaumont v. Morgan, 427 F.2d 667, 669 (1st Cir.), cert. denied, 400 U.S. 882, 91 S.Ct. 120, 27 L.Ed.2d 121 (1970). In Bayamon, defendants moved for a directed verdict at the close of the plaintiffs case. The district court expressly reserved ruling on the motion, and indicated that it would not rule on the motion until after the case went to the jury. Thereafter, defendant presented evidence that occupied only two pages of the trial transcript, took no more than a few minutes, and did not even bear on the central" }, { "docid": "1074507", "title": "", "text": "have barred its motion for judgment n.o.v. The State’s noncompliance with Rule 50(b) was far more than technical, however; at no time did the State inform the district court (much less make a formal motion) that it desired a review of all the evidence for sufficiency as a matter of law. The State would also like to fit its case within the very narrow exception adopted by this court in Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968, 971-72 (1st Cir.1969). See also Beaumont v. Morgan, 427 F.2d 667, 669 (1st Cir.), cert. denied, 400 U.S. 882, 91 S.Ct. 120, 27 L.Ed.2d 121 (1970). In Bayamon, defendants moved for a directed verdict at the close of the plaintiffs case. The district court expressly reserved ruling on the motion, and indicated that it would not rule on the motion until after the case went to the jury. Thereafter, defendant presented evidence that occupied only two pages of the trial transcript, took no more than a few minutes, and did not even bear on the central issue in the case. The panel held that, under the very unusual facts of the case, where the defendant had moved for a directed verdict (albeit prematurely), and the district court made clear its disposition to let the case go to the jury, and where the only evidence presented by the defendant was brief and could not possibly have changed the court’s decision on the motion for a directed verdict, the failure to renew the motion was not necessarily fatal to the subsequent motion for judgment n.o.v. The proceedings below in the instant case were marked by none of the peculiarities that warranted Bayamon’s deviation from the general rule that a motion for judgment n.o.v. must be preceded by a motion for directed verdict at the close of all the evidence. The district court here gave defendant no indication that its motion for directed verdict at the close of plaintiff’s case would suffice to preserve the issue for review. See Martinez Moll v. Levitt & Sons of Puerto Rico, 583 F.2d 565, 569-70 (1st Cir.1978)." }, { "docid": "22312827", "title": "", "text": "by the court. United States ex rel. Weyerhauser Co. v. Bucon Constr. Co., 430 F.2d 420 (5th Cir. 1970); Roche v. New Hampshire Nat’l. Bank, 192 F.2d 203 (1st Cir. 1951). The same standard is to be applied by both the trial court and the reviewing appellate court; whether there is evidence upon which the jury could properly find a verdict for the party against whom the motion is directed. Ralston Purina Co. v. Edmunds, 241 F.2d 164 (4th Cir.), cert. denied, 353 U.S. 974, 77 S.Ct. 1059, 1 L.Ed.2d 1136 (1957). The court must view the evidence and any inferences which may reasonably be drawn from it in the light most favorable to the party opposing the motion for directed verdict. Riske v. Truck Ins. Exch., 490 F.2d 1079 (8th Cir. 1974); Welch v. Outboard Marine Corp., 481 F.2d 252 (5th Cir. 1973); Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968 (1st Cir. 1969). If the evidence is of such quality and weight that reasonable men might reach different conclusions in the exercise of impartial judgment, a motion for directed verdict should be denied. Trawick v. Manhattan Life Ins. Co. of New York, N.Y., 447 F.2d 1293 (5th Cir. 1971), appeal after remand, 484 F.2d 535 (5th Cir. 1973). Our task now is to apply the above mentioned legal principles to the facts of this case in order to determine if the evidence was sufficient to present a jury question. The record indicates that D & H had only two shareholders, Davis and Harrington. Davis was president and treasurer as well as 85% shareholder. While some question existed as to whether Davis personally signed any company checks in Providence during the first two quarters of 1963, it is clear that his sister was authorized to, and did sign company checks in his behalf. Further, Davis flew to Providence on weekends and conferred with Harrington about business matters, including finances. Davis signed the Employer’s Quarterly Federal Tax Returns, Form 941, as president of D & H and also had a D & H bank account in Pittsburgh on which" }, { "docid": "7686880", "title": "", "text": "of $117,778.19 for franchise fees, royalties, equipment and goods sold on open account, and equipment financed. Subsequent to the jury verdict and within the time allowed by the Federal Rules of Civil Procedure defendants filed motions for Judgment Notwithstanding the Verdict, or in the alternative, a new trial, or remittitur. I. JUDGMENT NOTWITHSTANDING THE VERDICT (JNOV) Applicable Standard The standard for granting JNOV is precisely the same as the standard for directing a verdict. Tackett v. Kidder, 616 F.2d 1050 (8th Cir. 1980), 9 Wright & Miller, Federal Practice and Procedure: Civil section 2737. The motion for JNOV can be granted only if the motion for directed verdict should have been granted. Wright & Miller, supra. As good a statement of the test as any is from a decision of the Second Circuit: Simply stated, it is whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached. Simblest v. Maynard, 427 F.2d 1 (2d Cir. 1970). See also Davison v. Pacific Inland Nav. Co., 569 F.2d 507 (9th Cir. 1978). The standard is the same whether it arises in the procedural context of a motion for directed verdict or a motion for JNOV and is the same in the trial court as on appeal. Wright & Miller, supra at section 2524. While the Court is not free to weigh the evidence or to pass on the credibility of witnesses or to substitute its judgment of the facts for that of the jury, it must view the evidence most favorable to the party against whom the motion is made and give that party the benefit of all reasonable inferences from the evidence. Id. These motions should be cautiously and sparingly granted as the fundamental principle is that there must be a minimum of interference with the jury. Id. In accordance with these principles and the standard set out above this Court will now examine the three areas of the law on which the jury" }, { "docid": "14102295", "title": "", "text": "J.C. Holman and Ann Holman jointly. II The Applicable Legal Principles The standard for granting a judgment notwithstanding the verdict under F.R.Civ.P. 50(b) is the same as the standard for granting a motion for a directed verdict. Hawkins v. Sims, 137 F.2d 66, 67 (4th Cir.1943). In ruling on a motion for a directed verdict, the trial court must consider the record as a whole, viewing the evidence in the light most favorable to the party against whom the motion is made and giving that party the benefit of all reasonable inferences which arise from the evidence. If there is substantial evidence upon which a jury could reasonably find a verdict for the nonmoving party, the motion should be denied. Mays v. Pioneer Lumber Corp., 502 F.2d 106, 107 (4th Cir.1974); Ralston Purina Company v. Edmunds, 241 F.2d 164, 167 (4th Cir.), cert. denied, 353 U.S. 974, 77 S.Ct. 1059, 1 L.Ed.2d 1136 (1957). The movant is not entitled to prevail if, based on the applicable law, the evidence presented at trial raises questions upon which reasonable minds may differ. See Hamer v. John McShain, Inc., 394 F.2d 480 (4th Cir.1968). However, speculative or conjectural inferences are not sufficient to support a jury verdict. Business Development Corporation of North Carolina v. United States, 428 F.2d 451, 453 (4th Cir.), cert. denied, 400 U.S. 957, 91 S.Ct. 355, 27 L.Ed.2d 266 (1970). On a motion for a new trial under F.R.Civ.P. 59(b), a verdict may be set aside and a new trial granted when it would be in the interest of justice. Aetna Casualty & Surety Company v. Yeatts, 122 F.2d 350, 352 (4th Cir.1941). A motion for a new trial is addressed to the sound discretion of the trial court. See Richmond v. Atlantic Company, 273 F.2d 902 (4th Cir.1960). The burden of showing error rests on the party seeking a rehearing on the merits. 11 C. Wright and A. Miller, Federal Practice and Procedure, Civil § 2803, at 32 (1973). Ill The Motion of Defendant Mark for Judgment Notwithstanding the Verdict In seeking the entry of a judgment in" }, { "docid": "22850021", "title": "", "text": "v. Raytheon Co., 616 F.2d 1204, 1208 (D.C.Cir.1980); Federal Deposit Insurance Corp. v. First National Finance Co., 587 F.2d 1009, 1010-11 (9th Cir. 1978); Radobenko v. Automated Equipment Corp., 520 F.2d 540, 543 (9th Cir. 1975); Wright & Miller, Federal Practice and Procedure: Civil § 2716 at 430-32 (1973). Applying those principles to the present appeal, we are unable to conclude that the court erred in its ruling. A genuine issue as to a material fact did exist. The reasons underlying the University’s decision not to reappoint or to promote Smith were in dispute. While Smith directed the court’s attention to references to her age, the references were not unambiguously indicative of age discrimination. The University offered alternative explanations for the references which the jury might find to be reasonable and which, the jury might conclude, negated the age discrimination claim. Moreover, in cases such as this one, in which an issue of unsatisfactory performance is involved, the credibility and testimony of witnesses are indeed determinative of the discrimination claim. See Weahkee v. Perry, 587 F.2d 1256, 1266 (D.C.Cir.1978). Summary judgment therefore was inappropriate. Viewed as a whole a ease went to the jury which could have been decided either way. There was therefore no basis, on the merits, for Smith’s motion for judgment notwithstanding the verdict. But even if there had been, it was waived and may not be pursued on appeal by the appellant-who failed to move for a directed verdict after the close of all the evidence. See Martinez Moll v. Levitt & Sons of Puerto Rico, Inc., 583 F.2d 565, 568-70 (1st Cir. 1978). 5A Moore’s Federal Practice ¶ 50.08 at 50-85 to -91 (1980). The exceptions for cases where (a) there has been substantial compliance with the rule, as in Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968, 971-72 (1st Cir. 1969), (b) where manifest injustice will otherwise occur since the verdict is wholly without legal support, Sojak v. Hudson Waterways Corp., 590 F.2d 53, 54-55 (2d Cir. 1978), (c) where the trial judge in effect excused the failure to renew the motion, Bayamon" }, { "docid": "15495004", "title": "", "text": "relaxing the Rule is to accept something less than full compliance where substantial compliance has been shown. In Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968 (1st Cir. 1969), defendants moved for a directed verdict on grounds of insufficiency at the end of plaintiffs’ case, but did not renew the motion at the close of all the evidence. The district court expressly reserved ruling on the motion, however, declaring a firm intention to let the case go to the jury before it would apply a legal standard to the evidence. After the defendants briefly presented their rebuttal, the district court did submit the case to the jury, saying, “In view of the evidence submitted by the party plaintiff I decided to submit the case on the plaintiff’s evidence.” Once the verdict was rendered, the court invited defendants to make their motion for j. n. o. v., and ruled on it on the merits. In those circumstances, where a proper, albeit premature, motion had been made, and where the court by reserving ruling and by other actions had demonstrated its disposition to let the case go to the jury, we found that the district court had led counsel reasonably to believe that all had been done that was necessary to preserve the issue for review. We further noted the brief and inconsequential nature of the evidence introduced following defendants’ first motion for directed verdict. Compare Gillentine v. McKeand, supra at 722-23. We emphasized, however, that we were not signalling that the compliance with Rule 50(b) was unnecessary: “[Procedural wrangles would multiply if the requirement could be deemed nonessential upon a mere showing of a court’s con tinuing disinclination to grant such a motion.” Bayamon Thom McAn, supra at 971. The present case is obviously distinguishable from Bayamon Thom McAn. First, Levitt never moved on insufficiency grounds, or raised the issue at all, until after the jury’s verdict, when it was too late. There is thus no basis, as there was in Bayamon Thom McAn, for treating the present ease as one where there was substantial compliance with the Rule. Second," }, { "docid": "4943890", "title": "", "text": "award “is not penal in its nature but constitutes compensation for the retention of a workman’s pay which might result in damages too obscure and difficult of proof for estimate other than by liquidated damages.” Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 707, 65 S.Ct. 895, 902, 89 L.Ed. 1296 (1945). For these reasons, the Court awarded an additional $30,000 liquidated damages in the instant case, but denied the application for liquidated damages with regard to the jury award of damages for pain and suffering. III. MOTIONS FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND FOR A NEW TRIAL. A. Judgment n. o. v. Defendant moved for judgment notwithstanding the verdict, and .in the alternative for a new trial, pursuant to Rule 50(b) of the Federal Rules of Civil Procedure. Defendant was entitled to move for judgment n. o. v., having moved for a directed verdict both after the plaintiff’s case and at the close of all the evidence. The standard of proof on such a motion is like that for a motion for a directed verdict. Indeed, it has been uniformly held that a motion for judgment n. o. v. “may not be granted unless as a matter of law it is found that [plaintiff] failed to present a case for the jury, and a verdict in [defendant’s] favor should have been directed at the end of the trial.” Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205, 1210 (3rd Cir.) (Adams, J.), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed. 2d 55 (1970). The appropriate test is whether, when the evidence is viewed most favorably to the non-moving party and all reasonable inferences are drawn in its favor, the court determines that there is not sufficient evidence upon which the jury could properly have found for the non-moving party. 9 Wright & Miller, Federal Practice and Procedure § 2524 (1971). As the Third Circuit held in Lewin v. Metropolitan Life Insurance Co., 394 F. 2d 608, 613 (1968), citing Morris Bros. Lumber Co. v. Eakin, 262 F.2d 259 (3rd Cir. 1959) (Maris, J.): In determining whether" }, { "docid": "17687887", "title": "", "text": "Nonetheless, after balancing the competing considerations, we are persuaded that the facts of this case fall within the range of situations contemplated by Gillespie. Consequently, we conclude that the judgment of the District Court was, as a matter of practical rather than technical construction, a final judgment within the meaning of § 1291 and that, accordingly, we may properly entertain jurisdiction of the appeal. II. Liability Issue. It is well settled that federal law governs lawsuits between an injured longshoreman and a shipowner. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409-410, 74 S.Ct. 202, 98 L.Ed. 143 (1953). For all practical purposes, a motion for directed verdict and a subsequent motion for judgment notwithstanding the verdict are measured by the same standard. Hallmark Industry v. Reynolds Metals Co., 489 F.2d 8, 13 (9th Cir. 1973), cert. denied, 417 U.S. 932, 94 S.Ct. 2643, 41 L.Ed.2d 235 (1974); Juhnke v. EIG Corp., 444 F.2d 1323, 1325 (9th Cir. 1971); 9 Wright and Miller, Federal Practice and Procedure: Civil § 2537, at 599 (1971). Under that standard, the evidence and all reasonable inferences must be viewed in a light most favorable to the party against whom the motion is made. Cullinan v. Burlington Northern, Inc., 522 F.2d 1034, 1036 (9th Cir. 1975). Under the 1972 Amendments, the shipowner is no longer vicariously liable for the negligence of the stevedore company. Gay v. Ocean Transport & Trading Ltd., 546 F.2d 1233, 1239 n.10 (5th Cir. 1977); Teofilovich v. d’Amico Mediterranean/Pacific Line, 415 F.Supp. 732, 734-735 (C.D.Cal.1976). Therefore, in this case, any negligent acts of the shipowner must initially be noted and considered. From the record, the only affirmative act done by the shipowner and its agents was to request that the two types of wheat be stored using a flat type separation rather than a sloping type separation. The plaintiff argues that, pursuant to the above request, the jury was entitled to infer that the shipowner did or should have known that: (1) the panning method utilized by the stevedore company was the only practical method of accomplishing the flat type" } ]

[ { "docid": "1577563", "title": "", "text": "price of cocaine. Both agents accompanied Gil to Riola’s house. Posing as Johnson’s money man, DEA Agent O’Con-nor arrived at Riola’s house shortly thereafter, and the agents arrested Contreras, Rióla, and Gil. As a general rule, the district court has discretion to grant or deny a Rule 14 motion for severance of defendants, and the district court’s judgment will not be overturned in the absence of an abuse of that discretion. United States v. Butera, mi F.2d 1376, 1385 (11th Cir.1982); United States v. Nickerson, 669 F.2d 1016, 1022 (5th Cir.1982); United States v. Berkowitz, 662 F.2d 1127, 1132 (5th Cir.1981); United States v. Crawford, 581 F.2d 489, 491 (5th Cir.1978); United States v. Swanson, 572 F.2d 523, 528 (5th Cir.), cert. denied, 439 U.S. 849, 99 S.Ct. 152, 58 L.Ed.2d 152 (1978). A district court’s refusal to grant a severance will not be reversed upon a mere showing of some antagonism and prejudice. An “appellant must demonstrate that he received an unfair trial and suffered compelling prejudice against which the trial court was unable to afford protection.” United States v. Berkowitz, 662 F.2d at 1132. “[T]o compel severance the defenses must be more than merely antagonistic— they must be antagonistic to the point of being mutually exclusive ... or irreconcilable.” United States v. Berkowitz, id. at 1133 (collecting cases). Synthesizing prior decisions, Berkowitz formulated the following standard: [T]he defense of a defendant reaches a level of antagonism (with respect to the defense of a co-defendant) that compels severance of that defendant, if the jury, in order to believe the core of testimony offered on behalf of that defendant, must necessarily disbelieve the testimony offered on behalf of his co-defendant.... Ultimately, the test is whether the defendant received a fair trial. United States v. Berkowitz, 662 F.2d at 1134. Regarding the Riola/Contreras severance claim, Rióla and Contreras suggest that their coercion defense was irreconcilable with Gil’s entrapment defense. In applying the Berkowitz test, however, we find that Gil’s testimony did not undermine the core of the coercion defense. Rióla and Contreras seem to suggest that Gil’s entrapment claim conflicts with" } ]

[ { "docid": "18006622", "title": "", "text": "necessary individualized determination. See, e.g., United States v. Varella, 692 F.2d 1352, 1360 (11th Cir.1982); United States v. Phillips, 664 F.2d 971, 1016-17 (5th Cir.1981) (Unit B), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982). Absent such a showing, the policy favoring a single trial of persons jointly indicted should prevail. See Bovain, 708 F.2d at 608; Varella, 692 F.2d at 1360. Here, the defendants have fallen far short of establishing any compelling prejudice. They base their suggestion of spillover solely on the fact that the evidence did not substantiate the participation of each defendant in every phase of the conspiracy. However, “[djemonstrating that the evidence is stronger against a co-defendant than oneself does not satisfy the burden of showing compelling prejudice.” United States v. Marable, 574 F.2d 224, 231 (5th Cir.1978) (emphasis in original); United States v. Partin, 552 F.2d 621, 641 (5th Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977); see also United States v. Berkowitz, 662 F.2d 1127, 1135 n. 8 (5th Cir.1981) (Unit B). At the trial, the testimony of Hargan and Wright evidenced the extensive participation of each defendant in the scheme. Given that proof, the mere fact that every person was not present at each stage of the conspiracy did not create a disparity in the evidence great enough to confuse the jury. See, e.g., Berkowitz, 662 F.2d at 1135 n. 8; United States v. Morrow, 537 F.2d 120, 137 (5th Cir.1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977). Furthermore, the trial judge’s cautionary instructions admonishing the jury to consider each defendant’s guilt separately obviated the likelihood of a spill-over effect. See Lippner, 676 F.2d at 456; United States v. Marszalkowski, 669 F.2d 655, 661 (11th Cir.), cert. denied,-U.S.-, 103 S.Ct. 208, 74 L.Ed.2d 167 (1982); Phillips, 664 F.2d at 1017. Under the circumstances, the appellants have not shown the “specific and compelling prejudice” necessary to justify a finding that the district court abused its discretion. See, e.g., United States v. Butera, 677 F.2d 1376, 1385 (11th Cir.1982), cert. denied,-U.S.-," }, { "docid": "23176049", "title": "", "text": "646 F.2d 181, 186 (5th Cir.1981). Therefore, our review is limited to determining if there was an abuse of discretion. United States v. Plotke, 725 F.2d 1303, 1309 (11th Cir.1984). In order to demonstrate an abuse of discretion, “the defendant must establish that the joint trial subjected him not just to some prejudice, but to compelling prejudice against which the district court could not afford protection.” United States v. Harper, 680 F.2d 731, 733 (11th Cir.), cert. denied, 459 U.S. 916, 103 S.Ct. 229, 74 L.Ed.2d 182 (1982). In determining prejudice we must consider whether the jury could “individualize each defendant in his relation to the mass,” Kotteakos v. United States, 328 U.S. 750, 773, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946), i.e., whether the jury could “keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task is difficult, severance should not be granted.” United States v. Lane, 584 F.2d 60, 64 (5th Cir.1978), quoting Tillman v. United States, 406 F.2d 930, 935 (5th Cir.), vacated in part, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969). A defendant does not suffer compelling prejudice simply because much of the evidence at trial is applicable only to his codefendants. United States v. Berkowitz, 662 F.2d at 1135 n. 8. Nothing in this record demonstrates compelling prejudice and the denials of the motions for severance were not an abuse of discretion. The convictions and sentences imposed on appellants Zielie, Gustafson, Wilkerson and Mausser are AFFIRMED. The convictions of appellant Govern are AFFIRMED except for Count Twelve which is dismissed and the sentence on this Count is VACATED. . Thirteen people were charged on some or all of the counts in the original indictment. Appellants Govern, Gustafson, Mausser, Wilkerson and Zielie were found guilty by the jury on November 10, 1982. Codefendant Liberatore entered a plea of guilty during the first week of trial. The other defendants in the case either pled guilty prior to trial or remained fugitives. . The enterprise distributed vast amounts of" }, { "docid": "6082140", "title": "", "text": "all of the substantive counts contained in the indictment including counts thirty-five through forty relating to objects (a) and (b), and counts forty-one through forty-three, relating to objects (c) through (g). In order to find Harmas guilty of these substantive counts, the jury must have determined that the United States was the target of the fraudulent reinsurance claims, which indicates that the jury chose to believe that the United States was also the object of the conspiracy. See United States v. Dennis, 786 F.2d 1029, 1038-40 (11th Cir.1986), cert. denied, 481 U.S. 1037, 107 S.Ct. 1973, 1974, 95 L.Ed.2d 814 (1987) (conviction on substantive accounts verified conviction of conspiracy count). Therefore, we affirm the conviction on Count One because we hold that there was ample evidence presented at trial to sustain the jury’s finding that Harmas was guilty beyond a reasonable doubt of a conspiracy in accordance with § 371. B. Severance Harmas contends that the district court abused its discretion when it denied his motion for severance. He argues that he was denied a fair trial because his rights were prejudiced by a joint trial along with the other defendants in the case. Federal Rule of Criminal Procedure 14 states: “If it appears that a defendant ... is prejudiced by a joinder of offenses or of defendants in an indictment ... or by such joinder for trial together, the court may ... grant a severance of defendants or provide whatever other relief justice requires.” To compel severance the defenses must be more than merely antagonistic, they must be irreconcilable. United States v. Bovain, 708 F.2d 606, 610 (11th Cir.), cert. denied, 464 U.S. 898, 104 S.Ct. 251, 78 L.Ed.2d 238 (1983). To merit reversal, “more than some prejudice must be shown; the appellant must demonstrate that he received an unfair trial and suffered compelling prejudice.” United States v. Berkowitz, 662 F.2d 1127, 1132 (5th Cir. Unit B 1981). Because the record does not support Harmas’ contentions, we hold that the district court’s failure to sever Harmas’ trial from that of his codefendants did not result in an abuse of" }, { "docid": "18006623", "title": "", "text": "(Unit B). At the trial, the testimony of Hargan and Wright evidenced the extensive participation of each defendant in the scheme. Given that proof, the mere fact that every person was not present at each stage of the conspiracy did not create a disparity in the evidence great enough to confuse the jury. See, e.g., Berkowitz, 662 F.2d at 1135 n. 8; United States v. Morrow, 537 F.2d 120, 137 (5th Cir.1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977). Furthermore, the trial judge’s cautionary instructions admonishing the jury to consider each defendant’s guilt separately obviated the likelihood of a spill-over effect. See Lippner, 676 F.2d at 456; United States v. Marszalkowski, 669 F.2d 655, 661 (11th Cir.), cert. denied,-U.S.-, 103 S.Ct. 208, 74 L.Ed.2d 167 (1982); Phillips, 664 F.2d at 1017. Under the circumstances, the appellants have not shown the “specific and compelling prejudice” necessary to justify a finding that the district court abused its discretion. See, e.g., United States v. Butera, 677 F.2d 1376, 1385 (11th Cir.1982), cert. denied,-U.S.-, 103 S.Ct. 735, 74 L.Ed.2d 958 (1983). B. Mark Johnson, Wilkins and Quamida also insist that they were entitled to a severance to enable their co-defendant, Marvin Johnson, to testify on their behalf. During the course of the trial, each of these defendants presented the district court with an affidavit, prepared either by Johnson or his attorney, outlining the exculpatory evidence he would relate in a separate trial. But once the court denied any severances, Johnson refused to testify, claiming his fifth amendment privilege. On appeal, the defendants contend that their inability to obtain that testimony deprived them of a fair trial. To authorize a severance on these grounds, a defendant must initially prove “a bona fide need for the testimony, the substance of the desired testimony, the exculpatory effect of the desired testimony, and that the co-defendant would indeed have testified at a separate trial.” Marable, 574 F.2d at 231; see also Bovain, 708 F.2d at 610; United States v. Rice, 550 F.2d 1364, 1369 (5th Cir.1977), cert. denied, 434 U.S. 954, 98 S.Ct." }, { "docid": "18747145", "title": "", "text": "was unable to afford protection. United States v. Riola, 694 F.2d 670, 672 (11th Cir.), cert. denied, 464 U.S. 834, 104 S.Ct. 118, 78 L.Ed.2d 117 (1983). Only if the jury could not separate the evidence relevant to each appellant and render a fair and impartial verdict as to each should severance be granted. United States v. Meester, 762 F.2d 867, 883 (11th Cir.1985). The test is a stringent one. United States v. Bovain, 708 F.2d at 608. When a defendant alleges prejudice resulting from a “spill-over” effect, as Waites has done here, the defendant must demonstrate the jury’s inability to make an individualized determination as to each defendant. Demonstrating that acquittal would have been more likely had the defendant been tried separate or that the evidence was stronger against a codefendant does not satisfy the burden. Some degree of bias is inherent in a joint trial. Meester, 762 F.2d at 883-84. The allegedly prejudicial evidence was presented during cross-examination of Holmes, after Waites had rested his case. The conversation made no reference to Waites, and Holmes testified that he had never met Waites prior to the trial. The court gave cautionary instructions to the jury to consider and weigh the evidence against each appellant individually. Such an instruction limits the likelihood of a “spill-over” effect. Meester, 762 F.2d at 884. Under these circumstances, Waites has not made a sufficient showing of compelling prejudice. Waites also asserts that the trial court should have given appropriate instructions at the time it admitted into evidence the tape-recorded conversation. When a redacted version of the tape was played during Bosarge’s testimony, the court instructed the jury not to consider the statements made therein as true, except as to Holmes. When the government again sought to introduce a more complete version of the tape during Holmes’s cross-examination, Waites requested a relevance instruction, but the judge stated that the appellants were not entitled to a relevancy instruction in a joint trial if the evidence was relevant to any of the appellants. The judge thus gave no instructions. The record does not reveal that Waites requested" }, { "docid": "6082141", "title": "", "text": "fair trial because his rights were prejudiced by a joint trial along with the other defendants in the case. Federal Rule of Criminal Procedure 14 states: “If it appears that a defendant ... is prejudiced by a joinder of offenses or of defendants in an indictment ... or by such joinder for trial together, the court may ... grant a severance of defendants or provide whatever other relief justice requires.” To compel severance the defenses must be more than merely antagonistic, they must be irreconcilable. United States v. Bovain, 708 F.2d 606, 610 (11th Cir.), cert. denied, 464 U.S. 898, 104 S.Ct. 251, 78 L.Ed.2d 238 (1983). To merit reversal, “more than some prejudice must be shown; the appellant must demonstrate that he received an unfair trial and suffered compelling prejudice.” United States v. Berkowitz, 662 F.2d 1127, 1132 (5th Cir. Unit B 1981). Because the record does not support Harmas’ contentions, we hold that the district court’s failure to sever Harmas’ trial from that of his codefendants did not result in an abuse of discretion. C. Admission of Exhibits Harmas argues that he was denied a fair trial because the district court improperly admitted several exhibits and summaries. Federal Rule of Evidence 1006 provides that “[t]he contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.” The admission of summaries “offers the only practicable means of making their contents available to the jury.” See Notes of Advisory Committee to Rule 1006. In this case, the summaries were helpful to the jury’s understanding and were properly admitted. The decision to admit or exclude evidence is within the discretion of the trial court and will not be overturned unless it is determined that there has been an abuse of discretion. United States v. Duff, 707 F.2d 1315, 1319 (11th Cir.1983). The evidence was introduced after counsel had laid the proper predicate and the information summarized was before the jury in the form of documentary evidence; therefore, we hold the district court did not abuse its" }, { "docid": "23472167", "title": "", "text": "their co-defendants and that they were prejudiced by the \"spill-over\" effect of the evidence against their co-defendants. They also argue that the jury was unable to separate the evidence as it related to each count of the indictment. We review the district court's denial of a motion for severance under Rule 14 for an abuse of discretion. United States v. Meester, 762 F.2d 867, 874 (11th Cir.1985), cert. denied, 474 U.S. 1024, 106 S.Ct. 579, 88 L.Ed.2d 562 (1985). In order for the appellants to succeed with this claim, they must demonstrate that they suffered \"compelling prejudice\" from the trial court's refusal to sever. We have defined \"compelling prejudice\" in this context as \"the jury's inability to separately appraise [sic] the evidence as to each defendant and render a fair and impartial verdict.\" Id. at 883. In this case, the district court clearly and specifically instructed the jury at the outset of the trial that each defendant and each offense were to be given separate consideration. The district court repeated this instruction at the end of the trial when it charged the jury prior to deliberations. Additionally, throughout the course of the trial, the court instructed the jury as to which count of the indictment a witness's testimony was relevant, to what charge that count pertained, and which defendants were charged in that count. The jury's verdict, which acquitted appellants on some charges while convicting them on others, clearly demonstrates the jury's ability to consider each defendant and each charge separately. Accordingly, we affirm the district court's denial of the appellants' Rule 14 motion. D. MOTION TO SUPPRESS EVIDENCE OBTAINED IN WAR-RANTLESS SEARCH Appellant Leigh Ritch also claims that the district court erred in denying his motion to suppress incriminating evidence obtained by the government in a warrant-less search of the vehicle he was driving. He argues that the search was made without probable cause, in violation of his Fourth Amendment rights. We review the district court's denial of a motion to suppress evidence as a mixed question of law and fact. United States v. Alexander, 835 F.2d 1406 (11th" }, { "docid": "23176047", "title": "", "text": "Indictment. Appellants Mausser and Wilkerson also claim that they should have been tried separately from all other codefendants in light of the small amount of evidence introduced against them versus the vast amounts introduced against all other codefendants. Since the appellants have not shown that they suffered any compelling prejudice as a result of the joint trial we affirm the district court’s denial of the motions to sever. It is well settled that joinder under Rule 8(b) is proper where an indictment charges multiple defendants with participation in a single conspiracy and also charges some but not all of the defendants with substantive counts arising out of the conspiracy. United States v. Weinrich, 586 F.2d 481, 495 (5th Cir.1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 (1979). The Fifth Circuit has stated as policy that “Rule 8 is to be broadly construed in favor of initial joinder.” United States v. Park, 531 F.2d 754, 761 (5th Cir.1976). Yet, even if initial joinder is proper, severance may be granted in the discretion of the trial court under Rule 14 if the district court determines prejudice will result from the joinder. United States v. Walker, 720 F.2d at 1533; United States v. Berkowitz, 662 F.2d 1127 (5th Cir.1981) (Unit B). In deciding a Rule 14 motion for severance the trial court must balance the right of a defendant to a fair trial against the public’s interest in efficient and economic administration of justice. United States v. Walker, 720 F.2d 1527 (11th Cir.1983); United States v. Morrow, 537 F.2d 120, 136 (5th Cir.1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977). Severance will be granted only if a defendant can demonstrate that a joint trial will result in specific and compelling prejudice to the conduct of his defense. United States v. Marszalkowski, 669 F.2d 655, 660 (11th Cir.), cert. denied sub nom., Brock v. United States, 459 U.S. 906, 103 S.Ct. 208-09, 74 L.Ed.2d 167 (1982). Appellate courts are reluctant to second guess a trial court’s refusal to grant a severance. United States v. Horton," }, { "docid": "18006621", "title": "", "text": "of the defendants’ particular claims. A. In evaluating whether the evidence against one defendant had a harmful spill-over effect on the jury’s deliberations of the other defendant’s guilt, the court must consider [wjhether under all circumstances of the particular case ... it is within the capacity of the jurors to follow the court’s admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon that defendant’s own acts, statements and conduct. In sum, can the jury the stowaway charge. Similarly, after he was indicted, Wright reached a plea agreement with the government. keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task be difficult, severance should not be granted. Peterson v. United States, 344 F.2d 419, 422 (5th Cir.1965); see also United States v. Lippner, 676 F.2d 456, 464-65 (11th Cir.1982). In this inquiry, a defendant must demonstrate “compelling prejudice” caused by the alleged evidentiary spill-over, which effectively precluded the jury’s ability to make the necessary individualized determination. See, e.g., United States v. Varella, 692 F.2d 1352, 1360 (11th Cir.1982); United States v. Phillips, 664 F.2d 971, 1016-17 (5th Cir.1981) (Unit B), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982). Absent such a showing, the policy favoring a single trial of persons jointly indicted should prevail. See Bovain, 708 F.2d at 608; Varella, 692 F.2d at 1360. Here, the defendants have fallen far short of establishing any compelling prejudice. They base their suggestion of spillover solely on the fact that the evidence did not substantiate the participation of each defendant in every phase of the conspiracy. However, “[djemonstrating that the evidence is stronger against a co-defendant than oneself does not satisfy the burden of showing compelling prejudice.” United States v. Marable, 574 F.2d 224, 231 (5th Cir.1978) (emphasis in original); United States v. Partin, 552 F.2d 621, 641 (5th Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977); see also United States v. Berkowitz, 662 F.2d 1127, 1135 n. 8 (5th Cir.1981)" }, { "docid": "18006620", "title": "", "text": "that corroborated many of the details of their story. The jury found each defendant guilty on all three counts. On appeal, the defendants assign numerous errors in the district court trial. II. The defendants first contend that the district court erred in refusing to grant their various motions for a severance. Each of the defendants, either expressly or by adoption of their co-defendants’ motions, maintain that they were unduly prejudiced by a “spill-over” effect from the evidence. In addition, Mark Johnson, Wilkins, and Quamina insist that the joint trial impermissibly deprived them of significant exculpatory evidence. Both of these arguments are premised on Fed.R.Crim.P. 14, which permits a severance if it appears that the defendants or the government will be prejudiced by the joinder. That decision is entrusted to the discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion. E.g., United States v. Bovain, 708 F.2d 606, 608 (11th Cir.1983). Mindful of the latitude afforded the district court in such situations, we turn to an examination of the defendants’ particular claims. A. In evaluating whether the evidence against one defendant had a harmful spill-over effect on the jury’s deliberations of the other defendant’s guilt, the court must consider [wjhether under all circumstances of the particular case ... it is within the capacity of the jurors to follow the court’s admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon that defendant’s own acts, statements and conduct. In sum, can the jury the stowaway charge. Similarly, after he was indicted, Wright reached a plea agreement with the government. keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task be difficult, severance should not be granted. Peterson v. United States, 344 F.2d 419, 422 (5th Cir.1965); see also United States v. Lippner, 676 F.2d 456, 464-65 (11th Cir.1982). In this inquiry, a defendant must demonstrate “compelling prejudice” caused by the alleged evidentiary spill-over, which effectively precluded the jury’s ability to make the" }, { "docid": "22084761", "title": "", "text": "was unable to sift through the evidence and make an individualized determination as to each defendant. Echevarria adds that severance was necessary due to the improper joinder of defendants and offenses. The Court has placed a heavy burden on a defendant who seeks to obtain a reversal on the basis of the denial of a severance motion. The prevailing attitude is that persons who are charged together should be tried together. This is based largely on the desire to avoid multiple litigation and to conserve judicial resources. The granting or denial of a severance is within the discretion of the trial judge, and will be overturned only for abuse of discretion. In order to show that the trial judge abused his discretion in failing to grant a severance, the appellant must demonstrate that the denial of a severance resulted in specific and compelling prejudice against which the trial court was unable to afford protection. Only if the jury could not separate the evidence relevant to each appellant and render a fair and impartial verdict as to each should severance be granted. U.S. v. Butler, 792 F.2d 1528, 1534 (11th Cir.1986) (internal citations omitted). The jury's ability to reach different verdicts as to different defendants is one factor that signifies the jury's ability to make individualized determinations. See, e.g., U.S. v. Starrett, 55 F.3d 1525, 1553 (11th Cir.1995). In evaluating the district court's denial of severance, we are mindful of the fact that \"the Constitution does not guarantee a trial free from the prejudice that inevitably accompanies any charge of heinous group crime; it demands only that the potential for transference of guilt be minimized to the extent possible under the circumstances . . . .\" Id. (quoting U.S. v. Elliott, 571 F.2d 880, 905 (5th Cir.1978)). Echevarria also alleged prejudice resulting from a \"spill-over\" effect. Accordingly, he must demonstrate the jury's inability to make an individualized determination as to each defendant. See Butler, 792 F.2d at 1534. Echevarria's main argument is that evidence relating to Counts VII through XI for acts that occurred after Echevarria had been arrested, resulted in" }, { "docid": "18747143", "title": "", "text": "advantage. At most, the evidence shows that the government failed to prosecute the case earlier because it “wasn’t interested” in the case. The government’s inaction in bringing the case is insufficient, standing alone, to establish that the government’s actions were motivated by an attempt to gain a tactical advantage. We hold that the district court did not abuse its discretion in refusing to dismiss the prosecution under rule 48(b). See United States v. Mitchell, 723 F.2d 1040, 1050 (1st Cir.1983). 3. Severance Butler and Waites contend that the trial court erred in failing to grant them a severance. The record does not reveal that Butler moved for a severance. A defendant who fails to move for a separate trial has no cause to complain because of a joint trial absent a showing that he suffered actual prejudice as a result of the joint trial. United States v. Washington, 550 F.2d 320, 328 (5th Cir.), cert. denied, 434 U.S. 841, 98 S.Ct. 138, 54 L.Ed.2d 105 (1977). Butler has not satisfied this burden. Waites, however, moved for a severance on several occasions. The prevailing judicial attitude is that persons who are charged together should be tried together. United States v. Sans, 731 F.2d 1521, 1533 (11th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 791, 83 L.Ed.2d 785 (1985). This is based largely on the desire to avoid multiple litigation and to conserve judicial resources. United States v. Bynum, 566 F.2d 914, 920 (5th Cir.), cert. denied, 439 U.S. 840, 99 S.Ct. 130, 58 L.Ed.2d 138 (1978) (citing United States v. Morrow, 537 F.2d 120, 136 (5th Cir.1976)). The granting or denial of a severance is within the discretion of the trial judge, and will be overturned only for abuse of discretion. United States v. Bovain, 708 F.2d 606, 608 (11th Cir.), cert. denied, 464 U.S. 898, 104 S.Ct. 251, 78 L.Ed.2d 238 (1983). In order to show that the trial judge abused his discretion in failing to grant a severance, the appellant must demonstrate that the denial of a severance resulted in specific and compelling prejudice against which the trial court" }, { "docid": "2132850", "title": "", "text": "and in the appropriate submission of evidence within the general framework of familiar exclusionary rules.” Id. at 519-20, 63 S.Ct. at 1241. We find that the District Judge did not abuse her discretion by admitting Agent Knee’s testimony. D. The Denial of Motion for Severance Appellant Gibbs filed a separate brief on appeal. He argues that the district court committed reversible error when it refused to grant his motion for a severance under Fed.R.Crim.P. 14. Under Rule 14 the district court must balance the right of defendants to a fair trial against the public’s interest in efficient and economic administration of justice. United States v. Hewes, 729 F.2d 1302, 1318 (11th Cir.1984), (citing United States v. Phillips, 664 F.2d 971, 1016 (5th Cir. Unit B 1981)), cert. denied, sub nom., Caldwell v. U.S., 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985). We will only reverse a district court’s denial of severance under Rule 14 for an abuse of discretion. Id. (citations omitted). To show that the district court abused its discretion, Gibbs must demonstrate that he suffered “compelling prejudice” as a result of the joint trial. United States v. Corbin, 734 F.2d 643, 648 (11th Cir.1984). Appellate courts are reluctant to second-guess a district court’s refusal to grant a severance. United States v. Phillips, 664 F.2d 971, 1017 (5th Cir. Unit B 1981) (citing cases), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982). Finally, coconspirators should normally be tried jointly, United States v. Cole, 755 F.2d 748, 762 (11th Cir.1985). In his effort to demonstrate “compelling prejudice,” Gibbs relies primarily on the jury’s verdict. Gibbs contends that because Barnette and Allied were found guilty of the same counts as Gibbs, the jury did not separately consider the guilt of each defendant. Gibbs stated that he “ ‘sank or swam’ with Barnette and Allied.” According to Gibbs, the jury’s confusion was “understandable” as it was an extremely complex case. We have, however, upheld joint trials in cases involving greater complexity than this. See e.g., United States v. Morrow, 537 F.2d 120, 136 (5th Cir.1976), cert." }, { "docid": "18747144", "title": "", "text": "for a severance on several occasions. The prevailing judicial attitude is that persons who are charged together should be tried together. United States v. Sans, 731 F.2d 1521, 1533 (11th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 791, 83 L.Ed.2d 785 (1985). This is based largely on the desire to avoid multiple litigation and to conserve judicial resources. United States v. Bynum, 566 F.2d 914, 920 (5th Cir.), cert. denied, 439 U.S. 840, 99 S.Ct. 130, 58 L.Ed.2d 138 (1978) (citing United States v. Morrow, 537 F.2d 120, 136 (5th Cir.1976)). The granting or denial of a severance is within the discretion of the trial judge, and will be overturned only for abuse of discretion. United States v. Bovain, 708 F.2d 606, 608 (11th Cir.), cert. denied, 464 U.S. 898, 104 S.Ct. 251, 78 L.Ed.2d 238 (1983). In order to show that the trial judge abused his discretion in failing to grant a severance, the appellant must demonstrate that the denial of a severance resulted in specific and compelling prejudice against which the trial court was unable to afford protection. United States v. Riola, 694 F.2d 670, 672 (11th Cir.), cert. denied, 464 U.S. 834, 104 S.Ct. 118, 78 L.Ed.2d 117 (1983). Only if the jury could not separate the evidence relevant to each appellant and render a fair and impartial verdict as to each should severance be granted. United States v. Meester, 762 F.2d 867, 883 (11th Cir.1985). The test is a stringent one. United States v. Bovain, 708 F.2d at 608. When a defendant alleges prejudice resulting from a “spill-over” effect, as Waites has done here, the defendant must demonstrate the jury’s inability to make an individualized determination as to each defendant. Demonstrating that acquittal would have been more likely had the defendant been tried separate or that the evidence was stronger against a codefendant does not satisfy the burden. Some degree of bias is inherent in a joint trial. Meester, 762 F.2d at 883-84. The allegedly prejudicial evidence was presented during cross-examination of Holmes, after Waites had rested his case. The conversation made no reference to Waites," }, { "docid": "23176048", "title": "", "text": "of the trial court under Rule 14 if the district court determines prejudice will result from the joinder. United States v. Walker, 720 F.2d at 1533; United States v. Berkowitz, 662 F.2d 1127 (5th Cir.1981) (Unit B). In deciding a Rule 14 motion for severance the trial court must balance the right of a defendant to a fair trial against the public’s interest in efficient and economic administration of justice. United States v. Walker, 720 F.2d 1527 (11th Cir.1983); United States v. Morrow, 537 F.2d 120, 136 (5th Cir.1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977). Severance will be granted only if a defendant can demonstrate that a joint trial will result in specific and compelling prejudice to the conduct of his defense. United States v. Marszalkowski, 669 F.2d 655, 660 (11th Cir.), cert. denied sub nom., Brock v. United States, 459 U.S. 906, 103 S.Ct. 208-09, 74 L.Ed.2d 167 (1982). Appellate courts are reluctant to second guess a trial court’s refusal to grant a severance. United States v. Horton, 646 F.2d 181, 186 (5th Cir.1981). Therefore, our review is limited to determining if there was an abuse of discretion. United States v. Plotke, 725 F.2d 1303, 1309 (11th Cir.1984). In order to demonstrate an abuse of discretion, “the defendant must establish that the joint trial subjected him not just to some prejudice, but to compelling prejudice against which the district court could not afford protection.” United States v. Harper, 680 F.2d 731, 733 (11th Cir.), cert. denied, 459 U.S. 916, 103 S.Ct. 229, 74 L.Ed.2d 182 (1982). In determining prejudice we must consider whether the jury could “individualize each defendant in his relation to the mass,” Kotteakos v. United States, 328 U.S. 750, 773, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946), i.e., whether the jury could “keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task is difficult, severance should not be granted.” United States v. Lane, 584 F.2d 60, 64 (5th Cir.1978), quoting Tillman v. United States," }, { "docid": "22948448", "title": "", "text": "Motions to sever are governed by Federal Rule of Criminal Procedure 14. The Rule provides, in part, that: If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. Fed.R.Crim.P. 14. Skerianz does not separately argue the severance issue, but simply adopts Giorda-no’s argument that the evidence showing the technicians’ theft of documents from Ducilo could not be compartmentalized by the jury, and therefore the denial of his motion prejudiced him. A defendant is entitled to severance when the evidence against one defendant cannot be compartmentalized and the jury is likely to consider it to the prejudice of a defendant against whom it is not properly directed. See United States v. Meester, 762 F.2d 867, 883 (11th Cir.), cert. denied, 474 U.S. 1024, 106 S.Ct. 579, 88 L.Ed.2d 562 (1985). A district court abuses its discretion in denying a motion to sever if the prejudice that resulted from the denial of severance is patently severe. See Meester, 762 F.2d at 883. To succeed on a compartmentalization defense the jury must be unable “to make an individualized determination as to each defendant.” Id. It is, however, customary to try persons charged as co-conspirators together, and severance of a co-conspirator’s trial is required only for compelling reasons. See, e.g., id.; Boscia, 573 F.2d at 827; United States v. Somers, 496 F.2d 723 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 57, 42 L.Ed.2d 58 (1974). This record shows no compelling likelihood of prejudice against Skerianz. The theft evidence clearly related to Giordano and Inigo only and could be kept separate by the jury. Indeed, the government never argued Skerianz was involved in the theft. Therefore, we hold that the district court did not abuse its discretion when it refused to grant Skerianz’s motion to sever. D. Skerianz’s Motion to Suppress the Documents We review the district court’s" }, { "docid": "23227473", "title": "", "text": "has been defined by this circuit as the jury’s inability to separately appraise the evidence as to each defendant and render a fair and impartial verdict. Marszalkowski, 669 F.2d at 660. To establish prejudice resulting from the “spillover” effect, the appellants would have to demonstrate the jury’s inability to make an individualized determination as to each defendant. It is not enough to show that acquittal would have been more likely had the defendant been tried separately. Some degree of bias is inherent in a joint trial. Alvarez, 755 F.2d at 857. Furthermore, demonstrating that the evidence was stronger against a co-defendant does not satisfy the burden. United States v. Johnson, 713 F.2d 633, 640 (11th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1447, 79 L.Ed.2d 766 (1984). The fact that every member of the conspiracy was not present at every stage of the conspiracy is not such a disparity in the evidence as would confuse the jury. Id. An instruction that the jury should consider the case against each defendant separately limits the likelihood of a “spill-over” effect. Id. In this case, the trial involved only five defendants and the evidence was presented in four days. The trial court instructed the jury to consider each defendant and each charge separately. Record, Vol. 6, at 52. The jury deliberated over nine hours before reaching its verdict. Based on the foregoing, we conclude that none of the appellants has made the requisite showing of compelling prejudice. (B) Motions for recusal Prior to the trial, Meester and Tumulty filed motions seeking to disqualify the trial judge. The district court denied the motions. Meester’s motion alleged bias, prejudice and lack of impartiality on the part of the district judge because of a phone call made by him to Meester’s surety after Judy Haas McNelis, Meester’s sister, escaped from jail. The judge is reported to have stated that he had information of Meester’s planned failure to appear for trial and that he was having her watched by the FBI. Meester also claimed that the judge’s actions during the trial, particularly his denial of her" }, { "docid": "14759321", "title": "", "text": "charged two separate conspiracies in the instant case, Marion-neaux would have dictated a severance under Rule 8(b). B. Prejudice? Del Ray was improperly joined with Fernandez and Recarey. Because the improper joinder was not apparent until the government had presented its ease, however, Del Ray has presented a Rule 14 claim and must therefore meet the burden of demonstrating prejudice under that rule. An appellant’s showing of prejudice under Rule 14 is normally intertwined with proof that the trial court abused its discretion. In the special circumstances of this case, because of an attorney error that we have forgiven, we have no exercise of discretion to review. Our inquiry is thus limited to whether denial of a Rule 14 motion to sever would have constituted an abuse of discretion. Under the unique facts of this case, we conclude that denial of Del Ray’s Rule 14 motion would not have been within the trial court’s discretion. Because of our concern for judicial economy and the related principle that defendants jointly indicted should be so tried, the Rule 14 appellant ordinarily must demonstrate “compelling prejudice” flowing from the denial of his motion to sever. United States v. Varella, 692 F.2d 1352, 1360 (11th Cir.1982), cert. denied, 463 U.S. 1210, 103 S.Ct. 3542, 77 L.Ed.2d 1392, cert. denied, 464 U.S. 838, 104 S.Ct. 127, 78 L.Ed.2d 124 (1983); United States v. Lippner, 676 F.2d 456, 464 (11th Cir.1982); United States v. Perez, 489 F.2d 51, 65 (5th Cir.1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). To decide whether the appellant has demonstrated “compelling prejudice,” the reviewing court must ask: Whether under all circumstances of the particular case, as a practical matter, it is within the capacity of the jurors to follow the court’s admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon that defendant’s own acts, statements and conduct. In sum, can the jury keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task be difficult," }, { "docid": "7153155", "title": "", "text": "the appellants and several other defendants. The grand jury returned a superseding indictment on October 5, 1979. Trial began on December 4, 1979, but the district court declared a mistrial six days later. The second trial — against fewer defendants— did not begin until February, 1981. Nichols pled guilty and was a key witness for the prosecution. Three of the indicted participants were acquitted. Of the appellants, Heath, Perkins, and Brown were convicted only of conspiring to distribute heroin, whereas Bovain, Finch, Rickett, and Thornton were found guilty of both conspiracy and substantive distribution charges. Thornton, Rickett and Brown contend that the district court erred in denying their motions for severance. Fed.R.Crim.P. 14 provides for a severance when it appears that a defendant or the government is prejudiced by a joinder of defendants or offenses. The grant or denial of a severance is within the discretion of the trial judge, United States v. Butera, 677 F.2d 1376 (11th Cir.1982), and will be overturned only upon a showing of an abuse of discretion. United States v. Badolato, 701 F.2d 915 at 923 (11th Cir.1983); United States v. Riola, 694 F.2d 670, 672 (11th Cir.1983). The de fendants must demonstrate that the denial of a severance resulted in “specific and compelling prejudice against which the trial court was unable to afford protection.” Id. It is a generally accepted principle that in conspiracy cases, defendants jointly indicted should be tried together. United States v. Lippner, 676 F.2d 456, 464 (11th Cir.1982). Only if the jury could not “separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him” should severance be granted. The test is a stringent one. Id.; United States v. Brock, 669 F.2d 655, 660 (11th Cir.), cert. denied, - U.S. -, 103 S.Ct. 208, 74 L.Ed.2d 167 (1982). Willie Brown alleges that he suffered compelling prejudice because he was not permitted to present his complete defense. The district court refused to admit testimony that Brown was incarcerated ear ly in the conspiracy after his Florida conviction. The purpose of this evidence, according" }, { "docid": "23227472", "title": "", "text": "some but not all of the defendants with substanfive counts arising out of the conspiracy. Alvarez, 755 F.2d at 857; United States v. Zielie, 734 F.2d 1447, 1463 (11th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985). As a general rule, defendants jointly indicted should be tried together in the interest of judicial economy. United States v. Sans, 731 F.2d 1521, 1533 (11th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 791, 83 L.Ed.2d 785 (1985). Even if joinder under Rule 8(b) is proper, however, severance may be granted in the discretion of the trial court pursuant to Fed.R. Crim.P. 14 if the court determines that prejudice will result from the joinder. Alvarez, 755 F.2d at 857; Zielie, 734 F.2d at 1464. Denial of a motion for severance is reviewable only for abuse of discretion. Id. In order to demonstrate an abuse of discretion, the appellant must show “compelling prejudice” arising from the decision not to sever. Id. See also Sans, 731 F.2d at 1533; Badolato, 701 F.2d at 923. “Compelling prejudice” has been defined by this circuit as the jury’s inability to separately appraise the evidence as to each defendant and render a fair and impartial verdict. Marszalkowski, 669 F.2d at 660. To establish prejudice resulting from the “spillover” effect, the appellants would have to demonstrate the jury’s inability to make an individualized determination as to each defendant. It is not enough to show that acquittal would have been more likely had the defendant been tried separately. Some degree of bias is inherent in a joint trial. Alvarez, 755 F.2d at 857. Furthermore, demonstrating that the evidence was stronger against a co-defendant does not satisfy the burden. United States v. Johnson, 713 F.2d 633, 640 (11th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1447, 79 L.Ed.2d 766 (1984). The fact that every member of the conspiracy was not present at every stage of the conspiracy is not such a disparity in the evidence as would confuse the jury. Id. An instruction that the jury should consider the case against each defendant separately limits the likelihood" } ]

[ { "docid": "23535175", "title": "", "text": "the top of the defendant’s Disclosure Statement and, although it is nowhere stated, the parties now agree that it actually includes interest only here, and no other additional fee or charge. Associates insists that because the finance charge consists of only one element — namely, interest— there has been full disclosure in compliance with the law. Plaintiff, on the other hand, contends that Regulation Z requires a breakdown of the finance charge, i. e., a clear statement of what it includes in all cases, even when it includes only one element, as here. Though the defendant’s argument may seem reasonable on its face, it actually represents an attack on the basic scheme of disclosure fundamental to Regulation Z. The term “finance charge” is highly ambiguous and a borrower can hardly be expected to know whether it denotes one type of charge or embraces a whole host of fees.- The lender does know. Section 226.8(d)(3) amounts to a recognition of this difficulty and prescribes a sensible and uniform way to resolve the disparity of information — i. e., it requires the lender in all cases to disclose individually the existence and amount of each component part or parts of the finance charge. The defendant herein failed to comply with that requirement and is therefore liable under the Act. Secondly, plaintiff alleges that a provision in the security agreement attempts to create a security interest in all consumer goods thereafter acquired by the debtor, in contravention of state law which only permits a security interest to attach on consumer goods acquired within 10 days after the date of the security agreement. Ill.Rev.Stat., eh. 26, § 9-204(4)(b). It is urged that this provision violates Sections 226.-6(c) and 226.8(b)(5) ****of Regulation Z. With little hesitancy, the court is inclined to agree with the plaintiff. The challenged provision fails to clearly and accurately define the extent of the defendant’s security interest and seems almost patently designed to mislead and confuse the borrower in that regard. As such, it violates the spirit of the law as well as the letter of Sections 226.6(c) and 226.8(b) (5)" } ]

[ { "docid": "21911405", "title": "", "text": "upon whom a finance charge is or may be imposed, the information required under [the Act].” 15 U.S.C. § 1631. Part of that information is “[a] description of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates.” 15 U.S.C. § 1639(a)(8). No liability can result, however, from “any act done or omitted in good faith in conformity with any rule, regulation, or interpretation thereof by the [Federal Reserve] Board.” 15 U.S.C. § 1640(b). The Federal Reserve Board has issued Regulation Z, 12 C.F.R. § 226.1 et seq., pursuant to its rulemaking powers conferred in section 1604 of the Act, 15 U.S.C. § 1604 (1976). Regulation Z mandates that “[t]he disclosure [under the Act] ... be made clearly, conspicuously, [and] in meaningful sequence,” 12 C.F.R. 226.6(a), and that “additional information or explanations may be supplied with any disclosure required ..., but none shall be stated, utilized, or placed so as to mislead or confuse the customer or lessee or contradict, obscure, or detract attention from the information required.” 12 C.F.R. § 226.6(c). The creditor must provide “[a] description or identification of the type of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates.... If after-acquired property will be subject to the security interest, or if other or future indebtedness is or may be secured by any such property, this fact shall be clearly set forth in conjunction with the description or identification of the type of security interest held, retained or acquired.” 12 C.F.R. § 226.8(b)(5). Special deference must be given the Board regulations since a determination of what is “meaningful disclosure” under the Act is an empirically achieved balance between incomplete disclosure and informational overload, a task to which the Board is better suited than the courts. See Ford Motors Credit Co. v. Milhollin, 444 U.S. 555, 568-69, 100 S.Ct. 790, 798-99," }, { "docid": "22934359", "title": "", "text": "Z by claiming to cover more than UCC section 9-204(2) allows and by failing to disclose the time limitation imposed on such clauses by this section of the UCC. The leading case in this circuit on the after-acquired property security interest is Tinsman v. Moline Beneficial Finance Co., 531 F.2d 815 (7th Cir. 1976). There this court held that disclosures of security interests that fail to indicate state law limitations on such security interests do not fulfill the disclosure requirements of the TILA and Regulation Z. In particular, debtors’ security interest there covered more property than allowed by the statute and also did not disclose that any security interest was limited to property acquired within 10 days after the secured party gives value. The security interest clauses in three of the four cases involved here do not contain any reference to a time limitation. This failure to indicate this limitation on the security interest violates the TILA and Regulation Z under our holding in Tinsman. See also Pollock v. General Finance Corp., 535 F.2d 295, 300 (5th Cir. 1976), aff’d on rehearing, 552 F.2d 1142, 1144-45 (5th Cir. 1977), cert. denied, 434 U.S. 891, 98 S.Ct. 265, 54 L.Ed.2d 176 (1977); Johnson v. Associates Finance, Inc., 369 F.Supp. 1121, 1122-23 (S.D.Ill.1974). Defendants, however, claim reliance on unofficial staff opinions of the Board for the contention that the disclosure here was made in good faith reliance upon Board interpretations of the TILA and therefore subject to no civil liability under section 1640(f). See Federal Reserve Letters Nos. 829, 983 and 1053, CCH Consumer Credit Guide HH 31,151, 31,323, and 31,393. This ignores the fact that these unofficial staff opinion letters are explicitly excepted from reliance under Regulation Z, section 226.-l(d)(4)(iii). The latest interpretation from the Board, post-dating the staff letters relied on by defendants, is an Official Staff Interpretation which concludes that the statement that a creditor holds “a security interest under the Uniform Commercial Code” is a sufficient description when the creditor obtains a security interest under the UCC. See Federal Reserve Board Official Staff Interpretation (November 19, 1976), CCH" }, { "docid": "14506539", "title": "", "text": "by the third box) has not properly been disclosed. If the third box had been left entirely blank, we would have no hesitancy in holding that this results in a violation of the disclosure requirements. Clausen v. Beneficial Finance Co., 423 F.Supp. 985 (N.D.Cal.1976). However, in this case the third “yes” does appear partially within the appropriate box, and it is, as noted by the district court, obvious that the third “yes” applies to the third box. Also, there is no problem of legibility involved here. None of the purposes served by TILA would be advanced by finding a violation under the circumstances presented, and we refuse to do so. By way of summary, we find violations of TILA in both cases of use of improper terminology. We also find a violation in the illegible disclosure of the finance charge. We find no violation' resulting from the relationship of each word “yes” to its appropriate box. VI The next issue, raised in five of the cases, is whether the creditors have violated TILA by improperly disclosing the security interest taken in after-acquired property. The claim of the debtors is that the disclosures made do not correctly reflect the limitations on security interests in after-acquired property which are imposed by the Uniform Commercial Code. A creditor desiring to hold a security interest must make the following disclosure under 15 U.S.C. § 1639(a)(8): A description of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates. The provision of Regulation Z relating to disclosure of security interests, section 226.-8(b)(5), provides in pertinent part as follows: (b) Disclosures in sale and nonsale credit. In any transaction subject to this section, the following items, as applicable, shall be disclosed: (5) A description or identification of the type of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates" }, { "docid": "22934378", "title": "", "text": "Part V infra. . Nos. 77-2029, 77-2030 and 77-2031. No. 77-2031 also appears to improperly claim an interest in more than merely accessions. The security agreement states flatly that it “will cover after acquired property,” no limitation of the kind of property covered being given. Defendants argue that they have in good faith relied on Exhibit E of the Model Forms provided with a pamphlet entitled, “What You Ought to Know About Truth in Lending” and therefore should be immune from liability under 15 U.S.C. § 1640(f). These forms, however, are merely samples “solely for purposes of demonstration” as the disclaimer at the bottom of the form states. See Johnson v. Associates Finance, Inc., 369 F.Supp. 1121, 1123 (S.D.Ill. 1974); Bone v. Hibernia Bank, 354 F.Supp. 310, 311 (N.D.Cal.1973), reversed on other grounds, 493 F.2d 135 (9th Cir. 1974). Reliance on such a form, where it is contrary to the law of the jurisdiction, is not sufficient to insulate defendants from liability under § 1640(f). . The extent of reliance on these letters to support defendants’ position is itself open to question. Letter 829, August 22, 1974, seems to indicate that the strictures of state law must be followed in describing the security interest. While Letter 983, December 30, 1975, seems to backtrack from this position, Letter 1053, May 28, 1976, followed and stated: It appears from your letter that these creditors are disclosing a security interest in “all after-acquired property” or “all after-acquired property including all attachments, substitutions, and replacements.” If, in fact, the applicable State law only permits acquisition of a security interest in after-acquired property acquired within a certain period of time, then such a statement would be improper under Regulation Z. . Plaintiffs also attempt to premise a claim on language in the security interest purporting to cover “all substitutions and replacements.” Assuming that substitutions and replacements for collateral cannot be the subject of a security interest after 10 days (See Tinsman v. Moline Beneficial Finance Co., 531 F.2d 815, 816 (7th Cir. 1976)), such goods must, by definition, be considered as being “of the same" }, { "docid": "22934360", "title": "", "text": "300 (5th Cir. 1976), aff’d on rehearing, 552 F.2d 1142, 1144-45 (5th Cir. 1977), cert. denied, 434 U.S. 891, 98 S.Ct. 265, 54 L.Ed.2d 176 (1977); Johnson v. Associates Finance, Inc., 369 F.Supp. 1121, 1122-23 (S.D.Ill.1974). Defendants, however, claim reliance on unofficial staff opinions of the Board for the contention that the disclosure here was made in good faith reliance upon Board interpretations of the TILA and therefore subject to no civil liability under section 1640(f). See Federal Reserve Letters Nos. 829, 983 and 1053, CCH Consumer Credit Guide HH 31,151, 31,323, and 31,393. This ignores the fact that these unofficial staff opinion letters are explicitly excepted from reliance under Regulation Z, section 226.-l(d)(4)(iii). The latest interpretation from the Board, post-dating the staff letters relied on by defendants, is an Official Staff Interpretation which concludes that the statement that a creditor holds “a security interest under the Uniform Commercial Code” is a sufficient description when the creditor obtains a security interest under the UCC. See Federal Reserve Board Official Staff Interpretation (November 19, 1976), CCH Consumer Credit Guide f 31,491. Without deciding whether this Official Staff Interpretation is consistent with Tins-man, we note that defendants cannot rely on this Official Interpretation since the language in their disclosure forms makes no mention of the UCC. In holding that defendants cannot rely on the unofficial staff letters under the facts of this case, we realize that such letters are an important informative function of the staff of the Board which, although not binding on a court, are entitled to deference and may prove helpful to a decision in a given case. Philbeck v. Timmers Chevrolet, Inc., 499 F.2d 971, 976-77 (5th Cir. 1974); Frank v. Reserve Consumer Discount Co., 398 F.Supp. 703 (D.Pa.1975). In the instant cases, however, the disclosure forms give a clearly mistaken impression of the extent of time the security interest may be in effect. As we stated in Tinsman v. Moline Beneficial Finance Company, 531 F.2d 815, 818 (7th Cir. 1976): A reading of the form would lead the debtors to conclude erroneously that the security interest extends" }, { "docid": "6742443", "title": "", "text": "held, retained or acquired.” 12 C.F.R. § 226.8(b)(5). Paragraph (M) of plaintiff’s disclosure statement indicates that the loan in question was to be secured by a security interest in a 1971 L.T.D. Ford Sedan and in “all after-acquired property of the same character”. Security interests in after-acquired consumer goods, however, are limited by R.I.Gen.Laws § 6A — 9— 204(4) to those in which the debtor ac quired rights within ten days after the secured party gives value. Plaintiff contends that said automobile is not a consumer good within the contemplation of § 6A — 9—204(4). Plaintiff did not specifically include this question in its “Statement of Issues on Appeal”, and neither party discussed it in the memoranda filed on appeal. Furthermore, plaintiff has not seen fit to include in the record on appeal a transcript of the hearings in the Bankruptcy Court. There is absolutely nothing in the record to indicate that the Bankruptcy Judge erred in finding that said automobile was a consumer good and in concluding that R.I.Gen.Laws § 6A — 9-204(4) is applicable. Plaintiff’s claim in said paragraph (M) that it was taking a security interest in “all after-acquired property of the same character”, when such an interest is substantially restricted by law, amounts to an inaccurate and patently inadequate description of the security interest in violation of 15 U.S.C. § 1639(a)(8) and 12 C.F.R. § 226.8(b)(5). Johnson v. Associates Finance, Inc., 369 F.Supp. 1121 (S.D.Ill.1974); cf. Woods v. Beneficial Finance Co. of Eugene, 395 F.Supp. 9 (D.Or.1975). The description of a security interest in after-acquired property must reflect the type of security interest which may be acquired under applicable state law. Federal Reserve Board Opinion Letter No. 829, August 22, 1974. Accordingly, the Bankruptcy Judge’s holding that plaintiff violated the Consumer Credit Protection Act is affirmed. It is unnecessary for this Court to review the Bankruptcy Judge’s findings and conclusions with respect to other alleged violations. IV. Finally, plaintiff argues that the trustee should be denied all or part of the attorney’s fee awarded by the Bankruptcy Judge. Plaintiff suggests that this would have the effect" }, { "docid": "23278358", "title": "", "text": "borne by the debtor. See Matter of Dickson, 432 F.Supp. 752, 757 (W.D.N.C.1977). The novel theory that the description could encompass property belonging to third parties is hypertechnical and ignores the realities of the security agreement. Fundamental to a secured party’s acquisition of a security interest in property of the debtor is that the debtor have “rights in the collateral.” Ga. Code Ann. § 109A-9-204(l). A security interest can be created in no other property. The Truth-in-Lending Act should not be used as a shield to protect the debtor on this kind of argument. Tinsman v. Moline Beneficial Finance Co., 531 F.2d 815 (7th Cir. 1976), stands alone and is contrary to the Federal Reserve Board’s position that approves designation of household goods alone, without requiring the security agreement to specify that these are the debtor’s household goods and not those of a third party. See Gibson v. Family Finance Corp., 404 F.Supp. 896, 898 (E.D.La.1975) (dictum); Slatter v. Aetna Financing Co., 377 F.Supp. 806, 809-810 (N.D.Ga.1974), remanded on other grounds sub nom., Jones v. Community Loan and Investment Corp., 544 F.2d 1228 (5th Cir. 1976); Kenney v. Landis Financial Group, Inc., 349 F.Supp. 939, 944-945 (N.D.Iowa 1972); FRB Letter of August 26, 1971, [1969-1974 Transfer Binder] CCH CONS.CRED.GUIDE ¶ 30,727. The provision for after-acquired collateral is clear as to what is, or may be, included, and satisfies 12 C.F.R. § 226.8(b)(5), which requires that notice that after-acquired property will be subject to the security interest shall be clearly set forth. III. The Disclosure of Credit Life and Disability Insurance The security agreement provided: CREDIT LIFE AND DISABILITY INSURANCE is not required to obtain this loan. Such insurance will only be procured for the term of the loan if Customer^) request(s) Creditor to obtain such insurance by signing below: I desire Credit Life and Disability Insurance at the cost of $137.39. In Doggett v. Ritter Finance Co., 528 F.2d 860 (4th Cir. 1975), the Fourth Circuit held that a similar provision was “clear and concise” and satisfied the disclosure requirements of Regulation Z. 12 C.F.R. § 226.-4(a)(5). The regulations authorize" }, { "docid": "15703830", "title": "", "text": "the computations of the charges were made on the document before Mr. Krajci signed it. The evidence showed that the Krajcis desired and intended to purchase credit insurance and that Mr. Krajci merely signed the document on the wrong line. On the basis of these factual findings, we conclude that Mr. Krajci’s signature, albeit misplaced, constituted a “separately signed affirmative written indication” of his desire to purchase credit insurance. Therefore, Provident did not violate the TILA by including the credit insurance charges in the amount financed. Failure to Disclose Clearly the Security Interest in After-Acquired Real and Personal Property 1. Personal Property Regulation Z requires that all required disclosures must be made “clearly, conspicuously, in meaningful sequence.” 12 C.F.R. § 226.6(a). Regulation Z also requires that a creditor provide a clear identification of the property, including after-acquired property, to which a security interest relates. 12 C.F.R. § 226.8(b)(5). Pennsylvania law limits the security interest a creditor can hold in after-acquired consumer goods; no interest attaches “unless the debtor acquires rights in them within 10 days after the secured party gives value.” 12A P.S. § 9-204(4)(b). This 10 day limitation must also be disclosed under the TILA. See e. g., Pollack v. General Finance Corp., 535 F.2d 295 (5th Cir. 1976) reh. denied, 552 F.2d 1142 (1977), cert. denied, 434 U.S. 891, 98 S.Ct. 265, 54 L.Ed.2d 176 (1977); Tinsman v. Moline Beneficial Finance Co., 531 F.2d 815 (7th Cir. 1976). Defendant’s disclosure document contains two statements regarding a security interest in after-acquired consumer goods. (See Finding of Fact 28, supra). The first states that Provident has a security interest in household goods then owned or acquired within 10 days of the transaction. This statement is in small print; it accurately discloses the interest acquired under Pennsylvania law. Griggs v. Provident Consumer Discount Co., 503 F.Supp. 246, 249 (E.D.Pa.1980); Williams v. Provident Consumer Discount, No. 79-4193 (E.D.Pa., October 10, 1980). Following this, the form states in bold type: “AFTER ACQUIRED REAL AND PERSONAL PROPERTY OF BORROWER WILL BE SUBJECT TO THE SECURITY INTEREST SET FORTH HEREIN...” Plaintiff contends that this second" }, { "docid": "23174258", "title": "", "text": "of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates . . . .” . The sole reference to a security interest in after-acquired property in the Disclosure Statement occurs in a printed statement in Item 8, directing the reader to “refer to the instrument evidencing the obligation for full description of property to which the security interest relates and after acquired property to which the security interest may attach.” . “If after-acquired property will be subject to the security interest, or if other or future indebtedness is or may be secured by any such property, this fact shall be clearly set forth in conjunction with the description or identification of the type of security interest held, retained or acquired.” § 226.8(b)(5). . This provision deals with “additional information,” and states: “At the creditor’s option, additional information or explanations may be supplied with any disclosure required by this part, but none shall be stated, utilized or placed so as to mislead or confuse the customer . The clause provided that “All of the foregoing promises and obligations, including the foregoing warrant of attorney to confess judgment, are the joint and several promises and obligations of the debtors.” . See Mourning v. Family Publications Service, Inc., 411 U.S. 356, 363-69, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973). . 15 U.S.C. § 1601. . 15 U.S.C. § 1604. . See Lauletta v. Valley Buick, Inc., 421 F.Supp. 1036, 1040 (W.D.Pa.1976) (“Regulation Z unequivocally requires that necessary disclosures shall be written and made together on one document.”); Douglas v. Beneficial Finance Co. of Anchorage, 334 F.Supp. 1166, 1174-75 (D.Alaska 1971). . The requirement that disclosures appear on one side of one document has been clearly enunciated by the Federal Reserve Board in its staff opinion letters. See e. g., public position letters, No. 25 (7/2/69); No. 130 (10/7/69); No. 150 (10/14/69), cited by appellant in the appendix to his brief. And the courts now feel that the staffs opinion" }, { "docid": "22934361", "title": "", "text": "Consumer Credit Guide f 31,491. Without deciding whether this Official Staff Interpretation is consistent with Tins-man, we note that defendants cannot rely on this Official Interpretation since the language in their disclosure forms makes no mention of the UCC. In holding that defendants cannot rely on the unofficial staff letters under the facts of this case, we realize that such letters are an important informative function of the staff of the Board which, although not binding on a court, are entitled to deference and may prove helpful to a decision in a given case. Philbeck v. Timmers Chevrolet, Inc., 499 F.2d 971, 976-77 (5th Cir. 1974); Frank v. Reserve Consumer Discount Co., 398 F.Supp. 703 (D.Pa.1975). In the instant cases, however, the disclosure forms give a clearly mistaken impression of the extent of time the security interest may be in effect. As we stated in Tinsman v. Moline Beneficial Finance Company, 531 F.2d 815, 818 (7th Cir. 1976): A reading of the form would lead the debtors to conclude erroneously that the security interest extends to all [consumer] goods ... at any time the loan agreement is in effect, even though Illinois law precludes such a security interest covering consumer goods acquired more than 10 days after the secured party gives value. The disclosures required here are not onerous and their uniformity is enhanced by the fact that the UCC has been adopted by 49 states. Moreover, the fact that defendants cannot in actuality claim any greater security interest than is allowed by state law is of no consequence. Although the inclusion of language in the forms which does not limit the security interest to 10 days fails to extend that interest beyond the limited period, it does mislead the consumer. As was stated in Ives v. W. T. Grant Company, 522 F.2d 749, 761 (2d Cir. 1975): Whether [a creditor] actually retains a security interest is irrelevant. On its face, the contract provides for a security interest and for [a creditor] to reveal later that there is none is hardly the type of disclosure Congress thought would “permit consumers" }, { "docid": "22934379", "title": "", "text": "defendants’ position is itself open to question. Letter 829, August 22, 1974, seems to indicate that the strictures of state law must be followed in describing the security interest. While Letter 983, December 30, 1975, seems to backtrack from this position, Letter 1053, May 28, 1976, followed and stated: It appears from your letter that these creditors are disclosing a security interest in “all after-acquired property” or “all after-acquired property including all attachments, substitutions, and replacements.” If, in fact, the applicable State law only permits acquisition of a security interest in after-acquired property acquired within a certain period of time, then such a statement would be improper under Regulation Z. . Plaintiffs also attempt to premise a claim on language in the security interest purporting to cover “all substitutions and replacements.” Assuming that substitutions and replacements for collateral cannot be the subject of a security interest after 10 days (See Tinsman v. Moline Beneficial Finance Co., 531 F.2d 815, 816 (7th Cir. 1976)), such goods must, by definition, be considered as being “of the same or similar type” as those secured. Thus the 10-day limitation contained in the agreement covers these goods as well: Debtor further grants to Secured Party a security interest in all goods, personal property and chattels of the same or similar type or kind to that described above now owned or hereafter acquired, excepting only after acquired consumer goods acquired more than 10 days after the date hereof. No valid claim of violation is therefore made. . This issue involves Nos. 78-1059 and 78-1061 through 78-1069. Plaintiffs also claim that Nos. 77-2029, 77-2030 and 78-1058 involve this issue. For the reasons discussed in note 2 supra, however, this issue was not reached in those cases and is not before us on appeal. . Subsequent to the decision in Allen, the Board issued Staff Opinion Letter No. 1047 (May 20, 1976), CCH Consumer Credit Guide 11 13,387, commenting on Allen that no particular form of statement was required so long as the relationship among the terms is clear, thereby providing the consumer with a clear and adequate" }, { "docid": "23174254", "title": "", "text": "are not excessively lengthy, the reasoning of the district court with respect to the language of sec. 226.-8(b)(5) dealing with after-acquired property interests appears to result from a basic misconception. Section 226.8(b)(5) mandates that a security interest in after-acquired property be revealed “. . . in conjunction with the description or identifi cation of the type of security interest held, retained or acquired.” The district court declared that “(w)here, as here, the length of the identification of the property is such that a clear identification cannot be made on the disclosure statement alone . . ,” the “in conjunction with” requirement of § 226.8(b)(5) is met, so long as the security interest is set forth on a separate document and a mention of it is made on the disclosure statement. However, since possible descriptions of the security interests in insurance and after-acquired property are not so long that their inclusion on the disclosure form would be impossible, the core premise of the district court’s position is invalid. Gennuso’s third charge — that the reference in bold print on the Note and Security Agreement to a non-existent warrant of attorney to confess judgment was misleading, in violation of § 226.6(c)— presents a somewhat closer question than those dealing with the disclosure of security interests in insurance and after-acquired property. In relation to this third matter, however, we conclude that Gennuso also has identified a violation of Regulation Z. That regulation, like the Truth-In-Lending Act under which it was promulgated, is designed to prevent the confusion of credit consumers, and such confusion may occur where, as here, a clause or covenant is referred to in bold print that is not included in the Disclosure Statement or Note. See Kenney v. Landis Financial Group, 349 F.Supp. 939, 950-51 (N.D.Iowa, 1972). Cf. Ives v. W. T. Grant Co., 522 F.2d 749, 761 (2d Cir. 1975). The fact, relied upon by the district court, that the confession of judgment clause was not in immediate proximity to the disclosures on the two documents is not determinative. This would appear to be particularly so since the pertinent" }, { "docid": "22014718", "title": "", "text": "and Disclosure”) attached to the complaint. . 6 Del.C. § 9-204(4)(b) provides: (4) No security interest attaches under an after-acquired property clause * * * * * * (b) to consumer goods other than accessions (Section 9-314) when given as additional security unless the debtor acquires rights in them within 10 days after the secured party gives value. . See also Kenney v. Landis Financial Group, Inc., 349 F.Supp. 939 at 950-51 (N.D.Iowa 1972) (security agreement with provision identical to one alleged here violated Section 226.6(c)); Ives v. W. T. Grant, 522 F.2d 749 at 761 (2nd Cir. 1975) (describing a security interest when there is none may violate the Connecticut truth in lending regulation patterned on Section 226.6(c)). . Section 226.8(b)(4) of Regulation Z provides: (b) Disclosures in sale and nonsale credit. In any transaction subject to this section, the fellowing items, as applicable, shall be disclosed: (4) The amount, or method of computing the amount, of any default, delinquency, or similar charges payable in the event of late payments. . See Federal Reserve Board staff letter of October 22, 1974, reported in part in Johnson and acknowledged by the Johnson court to represent the opinion of the Board, which opinion is entitled to great weight. . Section 226.8(b)(7) provides: (b) Disclosures in sale and nonsale credit. In any transaction subject to this section, the following items, as applicable, shall be disclosed: * * * * * * (7) Identification of the method of computing any unearned portion of the finance charge in the event of prepayment in full of an obligation which includes precomputed finance charges and a statement of the amount or method of computation of any charge that may be deducted from the amount of any rebate of such unearned finance charge that will be credited to an obligation or refunded to the customer. If the credit contract does not provide for any rebate of unearned finance charges upon prepayment in full, this fact shall be disclosed. . See Exhibit A attached to the first amended complaint (emphasis added). . Even if the method of rebate" }, { "docid": "22014717", "title": "", "text": "will be subject to the security interest, or if other or future indebtedness is or may be secured by any such property, this fact shall be clearly set forth in conjunction with the description or identification of the type of security interest held, retained or acquired. Section 226.6(c) of Regulation Z provides, inter alia: (c) Additional information. At the creditor’s option, additional information or explanations may be supplied with any disclosure required by this part, but none shall be stated, utilized, or placed so as to mislead or confuse the customer or contradict, obscure, or detract attention from the information required by this part to be disclosed. . . It is possible to read the Loan Agreement as referring to a separate document called a Chattel Mortgage Security Agreement, but neither side has suggested that the transaction is recorded in two instruments. In any event, at the motion to dismiss stage, I assume that the sole provision relating to a security interest in after-acquired property is that reflected in the Loan Agreement (or “Form Note and Disclosure”) attached to the complaint. . 6 Del.C. § 9-204(4)(b) provides: (4) No security interest attaches under an after-acquired property clause * * * * * * (b) to consumer goods other than accessions (Section 9-314) when given as additional security unless the debtor acquires rights in them within 10 days after the secured party gives value. . See also Kenney v. Landis Financial Group, Inc., 349 F.Supp. 939 at 950-51 (N.D.Iowa 1972) (security agreement with provision identical to one alleged here violated Section 226.6(c)); Ives v. W. T. Grant, 522 F.2d 749 at 761 (2nd Cir. 1975) (describing a security interest when there is none may violate the Connecticut truth in lending regulation patterned on Section 226.6(c)). . Section 226.8(b)(4) of Regulation Z provides: (b) Disclosures in sale and nonsale credit. In any transaction subject to this section, the fellowing items, as applicable, shall be disclosed: (4) The amount, or method of computing the amount, of any default, delinquency, or similar charges payable in the event of late payments. . See Federal Reserve" }, { "docid": "843383", "title": "", "text": "argue that the portion of the paragraph below the enclosed box which states “all of the consumer goods of every kind then owned or thereafter acquired by the Borrowers in replacement thereof and then or thereafter located at the Borrowers’ place of residence set forth herein” gives defendant an “after acquired security interest” which is broader than that allowed under Hawaii law. Hawaii Revised Statutes [hereinafter H.R.S.] § 490:9-204 requires all security interests to attach on consumer goods only after the debtors, here the Sneeds, have acquired rights in goods and given such rights as additional security within ten days after the secured party, here Beneficial, has given value. Plaintiffs allege, consequently, that the security interest disclosed is erroneous and defective because the interest described is larger than Hawaii law actually allows. In support of this proposition, they cite as authority Johnson v. Associates Finance, Inc., 369 F.Supp. 1121, 1123 (S.D.Ill.1974) and Federal Reserve Board Letter No. 829. The language of the letter cited by plaintiffs is as follows: “[t]he description of that security interest should accurately reflect the type of security interest that may be legally acquired under the appropriate state law.” This Court has no quarrel with a requirement of accurate description in consonance with applicable state law. Defendant counters, however, by citing H.R.S. § 490:9-204(4)(b) which states: (4) No security interest attaches under an after-acquired property clause (b) To consumer goods other than accessions (section 490:9-314) when given as additional security unless the debtor acquires rights in them within ten days after the secured party gives value. [Emphasis added.] Defendant argues that the security interest disclosed is in property acquired in replacement of the originally-secured property while the statute itself requires attachment in 10 days after the secured party gives value only where the consumer goods “are given as additional security” for the original loan. While this Court must agree with defendant that the words of the statute do not expressly apply a 10-day attachment requirement to goods in replacement of originally secured property, it can nevertheless think of circumstances in which such close observance of the" }, { "docid": "14506540", "title": "", "text": "disclosing the security interest taken in after-acquired property. The claim of the debtors is that the disclosures made do not correctly reflect the limitations on security interests in after-acquired property which are imposed by the Uniform Commercial Code. A creditor desiring to hold a security interest must make the following disclosure under 15 U.S.C. § 1639(a)(8): A description of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates. The provision of Regulation Z relating to disclosure of security interests, section 226.-8(b)(5), provides in pertinent part as follows: (b) Disclosures in sale and nonsale credit. In any transaction subject to this section, the following items, as applicable, shall be disclosed: (5) A description or identification of the type of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates . . . . If after-acquired property will be subject to the security interest, or if other or future indebtedness is or may be secured by any such property, this fact shall be clearly set forth in conjunction with the description or identification of the type of security interest held, retained or acquired. The permissible extent of security interests in after-acquired property is governed by section 9-204(2) of the Illinois Uniform Commercial Code (UCC), Ill.Rev.Stat. ch. 26, §§ 1 — 101 et seq.: No security interest attaches under an after-acquired property clause to consumer goods other than accessions (Section 9-314) when given as additional security unless the debtor acquires rights in them within 10 days after the secured party gives value. As was true in Tinsman v. Moline Beneficial Finance Co., 531 F.2d 815 (7th Cir. 1976), and Basham v. Finance America Corp., 583 F.2d 918 (7th Cir. 1978), cert. denied, 439 U.S. 1128, 99 S.Ct. 1046, 59 L.Ed.2d 89 (1979), the dispute on this issue centers on the claim that the creditors have failed" }, { "docid": "22315611", "title": "", "text": "only required disclosure of default, delinquency, or similar charges. Further, the Board had interpreted the statute not to require disclosure of an acceleration clause. . See Collinwood Shale, Brick & Supply Co. v. Binder, 60 Ohio App.2d 91, 395 N.E.2d 907 (1978) (notice of right to rescind was not sufficient disclosure for failure to disclose the possibility of materialman’s lien). Cf. FC-0023, Official Staff Interpretation, Nov. 22, 1976 (“security interest under UCC” is a sufficient description); Starks, supra, (should have disclosed a statutory vendor’s lien); the cases which hold a security interest in after-acquired property which does not describe the applicable ten day limitation from the UCC is not adequately described, e. g., Pollock v. General Finance Corp., 535 F.2d 295 (5th Cir. 1976), cert. denied, 434 U.S. 891, 98 S.Ct. 265, 54 L.Ed.2d 176 (1977); Tinsman v. Moline Beneficial Finance Co., 531 F.2d 815 (7th Cir. 1976); Cadmus v. Commercial Credit Plan, Inc., 437 F.Supp. 1018 (D.Del.1977); Sneed v. Beneficial Finance Co. of Hawaii, 410 F.Supp. 1135 (D.Hawaii 1976); In re Dunne, 407 F.Supp. 308 (D.R.1.1976); Woods v. Beneficial Finance Corp. of Eugene, 395 F.Supp. 9, 14 (D.Or.1975); Johnson v. Associates Finance, Inc., 369 F.Supp. 1121 (S.D.Ill.1974). . Since this Court has found the failure to disclose the security interest is a material nondisclosure giving appellants a right to rescind, this Court need not discuss whether appellee failed to make other disclosures under TILA or whether those disclosures were material. . See note 4 supra." }, { "docid": "22934358", "title": "", "text": "a separate pledge agreement, or a financing statement, mortgage, deed of trust, or similar document evidencing the security interest, a copy of which shall be furnished to the customer by the creditor as promptly as practicable. If after-acquired property will be subject to the security interest, or if other or future indebtedness is or may be secured by any such property, this fact shall be clearly set forth in conjunction with the description or identification of the type of security interest held, retained or acquired. The legal extent of a security interest is determined according to state law and section 9-204(2) of the Illinois Uniform Commercial Code (UCC) Ill.Rev.Stat. ch. 26, § 1 — 101 et seq., provides in relevant part: No security interest attaches under an after-acquired property clause to consumer goods other than accessions (Section 9-314) when given as additional security unless the debtor acquires rights in them within 10 days after the secured party gives value. Therefore, plaintiffs argue that defendants violated section 1639(a)(8) of the TILA and section 226.8(b)(5) of Regulation Z by claiming to cover more than UCC section 9-204(2) allows and by failing to disclose the time limitation imposed on such clauses by this section of the UCC. The leading case in this circuit on the after-acquired property security interest is Tinsman v. Moline Beneficial Finance Co., 531 F.2d 815 (7th Cir. 1976). There this court held that disclosures of security interests that fail to indicate state law limitations on such security interests do not fulfill the disclosure requirements of the TILA and Regulation Z. In particular, debtors’ security interest there covered more property than allowed by the statute and also did not disclose that any security interest was limited to property acquired within 10 days after the secured party gives value. The security interest clauses in three of the four cases involved here do not contain any reference to a time limitation. This failure to indicate this limitation on the security interest violates the TILA and Regulation Z under our holding in Tinsman. See also Pollock v. General Finance Corp., 535 F.2d 295," }, { "docid": "23384524", "title": "", "text": "secures other and future indebtedness of the borrower”. In fact, as appellee concedes, the mortgage agreement covered neither of those interests and thus the disclosure is literally inaccurate. The substantive disclosure standard specifically applicable to this claim is 15 U.S.C. § 1639(a)(8), which provides that a creditor “shall disclose each of the following items, to the extent applicable: ... (8) a description of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates.” See 12 C.F.R. § 226.8(b)(5) (Federal Reserve Board regulation further detailing this requirement); see generally Anderson Bros. Ford v. Valencia,-U.S. -, 101 S.Ct. 2266, 68 L.Ed.2d 783 (1981). Thus the question we must decide is whether this inaccuracy is sufficient to constitute a violation of the act. We conclude that it does. Accord, Franklin v. Community Federal Savings and Loan Ass’n, 629 F.2d 514 (8th Cir. 1980). First, it arguably fails both the “description” and the “clear identification” requirements of the provision. In addition, this failure cannot be dismissed as de minimis or hypertechnical because it might well have an adverse impact on borrower in either of two distinct ways: by deterring future borrowing or property acquisition out of an exaggerated belief in the security interest to which they would be subject, or by giving a lender an apparent right which, even if ultimately unenforceable, could serve as a significant bargaining lever in any future negotiations concerning rights or obligations under the loan. Indeed, we think this inaccuracy presents an even clearer case of a violation than one for which courts have consistently imposed liability, namely a description of an actually existing security interest in after-acquired property that fails to note that it extends only to goods acquired within 10 days of the secured party’s giving value. See, e. g., Jacklitch v. Redstone Federal Credit Union, 615 F.2d 679 (5th Cir. 1980); Basham v. Finance America Corp., 583 F.2d 918 (7th Cir. 1978); In re Dunne, 407 F.Supp. 308 (D.R.I.1976). Nor do we think" }, { "docid": "22014715", "title": "", "text": "because they raise questions of state law over which the Court should decline to exercise subject matter jurisdiction. Plaintiffs have not asserted any state law claims for relief. The allegations concerning violations of state law were made as part of plaintiffs’ contention that defendant violated the Truth in Lending Act in part by claiming a security interest in after-acquired consumer and household goods which plaintiff claims is illegal under Delaware law. . 15 U.S.C. § 1639(a)(8) provides: (a) Any creditor making a consumer loan or otherwise extending consumer credit in a transaction which is neither a consumer credit sale nor under an open end consumer credit plan shall disclose each of the following items, to the extent applicable: * * * * * * (8) A description of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates. Section 226.8(b)(5) of Regulation Z provides: (b) Disclosures in sale and nonsale credit. In any transaction subject to this section, the following items, as applicable, shall be disclosed: * * * * * * (5) A description or identification of the type of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates or, if such property is not identifiable, an explanation of the manner in which the creditor retains or may acquire a security interest in such property which the creditor is unable to identify. In any such case where a clear identification of such property cannbt properly be made on the disclosure statement due to the length of such identification, the note, other instrument evidencing the obligation, or separate disclosure statement shall contain reference to a separate pledge agreement, or a financing statement, mortgage, deed of trust, or similar document evidencing the security interest, a copy of which shall be furnished to the customer by the creditor as promptly as practicable. If after-acquired property" } ]

[ { "docid": "5548391", "title": "", "text": "8); Ward v. First National Bank, 202 Fed. 609, 120 C. C. A. 655 (C. C. A. 6); In re Bacon, supra; In re Flanigan (D. C.) 228 Fed. 339; In re Interocean Transportation Company (D. C.) 232 Fed. 408. The trustee invokes the rule, and cites in its support the case of Orinoco Iron Co. v. Metzel, 230 Fed. 40, 144 C. C. A. 338 (C. C. A. 6), to the effect that the bankruptcy court through its officers has constructive possession of choses in action belonging to the estate of a bankrupt. That rule, however, is applicable only to choses in action consisting, as in the Orinoco Iron Company Case, of mere debts or demands wholly intangible in their character, and cannot be applied to a chose in action evidenced and represented, as here, by a physical document such as an insurance policy which has been before bankruptcy delivered by the bankrupt to, and remains in the actual possession of, an adverse claimant. The distinction is clearly shown and. referred to by the court in its opinion in the case just cited. The assignee, legal or equitable, of an insurance policy, transferred absolutely or. as security, has an interest in such policy and in the proceeds of insurance represented thereby, of a nature and extent according to the character of the assignment. McDonald v. Daskam, 116 Fed. 276, 53 C. C. A. 554 (C. C. A. 7); Mutual Benefit Life Insurance Co. v. Swett, 222 Fed. 200, 137 C. C. A. 640, Ann. Cas. 1917B, 298 (C. C. A. 6); In re Flanigan, supra; In re Baird (D. C.) 245 Fed. 504; Sullivan v. Myer, 137 Tenn. 412, 193 S. W. 124, 39 Am. Bankr. Rep.314. 4The merits of the respective claims concerning the alleged voidability and invalidity of the chattel mortgage and the alleged transfer of the policies in question are not now before this court and no opinion relative thereto is intended to be here expressed. As, however, the petitioner is in possession of said policies as an adverse claimant asserting a lien on the proceeds" } ]

[ { "docid": "11389736", "title": "", "text": "presented by this appeal: (1) Whether the bankruptcy court obtained constructive possession of the debt due from the state when the petition in bankruptcy was filed; and (2) whether such possession in the bankruptcy court prevents the state court-from obtaining jurisdiction. In Isaacs v. Hobbs Tie & Timber Co., 282 U. S. 734, 737, 51 S. Ct. 270, 271, 75 L. Ed. 645, the court announced that, upon adjudication, title to the bankrupt’s property vests in the trustee with actual or constructive possession and is placed in the custody of the bankruptcy court. Such possession and title of all the property of the bankrupt vests in the trustee as of the date of filing of the petition no matter where situated, within or without the district. Robertson v. Howard, 229 U. S. 254, 33 S. Ct. 854, 57 L. Ed. 1174. And as said in the Isaacs Case, supra: “It follows that the bankruptcy court has exclusive jurisdiction to deal with the property of the bankrupt estate. * * * When this jurisdiction has attached, the court’s possession cannot be affected by actions brought in other courts.” So debts due the bankrupt by third parties are within the constructive ju risdietion of the bankruptcy court. In re Roman, 23 F.(2d) 556 (C. C. A. 2); In re Borok, 50 F.(2d) 75, 77 (C. C. A. 2). In the latter case, this court said: “Were the trustee attempting to collect the accounts from the bankrupt’s debtors, he would have to- resort to a plenary suit; he could not claim to be in ‘possession of the property,’ for existence of the property, i. e., a valid chose in action, is tho issue in dispute. But where, as here, tho debtor is not in an adverse attitude toward the bankrupt and the dispute is he-tween the bankrupt’s trustee and the claimant of a lien upon the debt, we think the debt- or may he deemed to hold the debt for the bankrupt in the same sense that the Board of Trade held the seat for the bankrupt, and ‘possession’ of tho chose in" }, { "docid": "13446568", "title": "", "text": "property in such sense as to give the bankruptcy court summary jurisdiction over adverse claims, appears from numerous eases. Chicago Board of Trade v. Johnson, 264 U. S. 1, 44 S. Ct. 232, 68 L. Ed. 533; O’Dell v. Boyden, 150 F. 731, 10 Ann. Cas. 239 (C. C. A. 6); In re Ransford, 194 F. 658 (C. C. A. 6); Orinoco Iron Co. v. Metzel, 230 F. 40 (C. C. A. 6); In re Roman, 23 F.(2d) 556, 558 (C. C. A. 2). It is trc e that in Chicago Board of Trade v. Johnson, the Chief Justice said, at page 12 of 264 U. S., 44 S. Ct. 232, 234, of his opinion : “Membership on the Board of Trade is different from a mere chose in action, like a simple claim or debt asserted against another, and only to be enjoyed after its satisfaction or enforcement. It is a continuously enjoyed ‘incorporeal right.’ ” There is an implication in these words that one cannot properly be said to be in possession of an ordinary debt or claim. But that was said in distinguishing the case from a suit by the trustee to collect a. debt from a resisting debtor, which must certainly be by plenary action. A similar distinction may be made in the case at bar. Were the trustee attempting to collect the accounts from the bankrupt’s debtors, he would have to resort to a plenary suit; he could not claim to be in “possession of the property,” for existence of the property, i. e., a valid chose in action, is the issue in dispute. But where, as here, the debtor is not in an adverse attitude toward the bankrupt and the dispute is between the bankrupt’s trustee and the claimant of a lien upon the debt, we think the debtor may be deemed to hold the debt for the bankrupt in the same sense that the Board of Trade held the seat for the bankrupt, and “possession” of the chose in action may be deemed to pass to the trustee in the one case as" }, { "docid": "10832266", "title": "", "text": "bank’s books, despite the fact that others have legal or equitable claims to the “money,” In re Ransford (C. C. A.) 194 F. 658; In re Zimmermann (C. C. A.) 66 F.(2d) 397. The possession of a stock exchange seat, so far as the jurisdiction of bankruptcy courts is concerned, is held to follow the person recognized by the exchange as the member, irrespective of assignments or claims in favor of others. Board of Trade of City of Chicago v. Johnson, supra; O’Dell v. Boyden (C. C. A.) 150 F. 731, 10 Ann. Cas. 239; In re Hoey (C. C. A.) 290 F. 116. In the case of book accounts and similar claims covered by an assignment as collateral security for a debt, a common practice is for the assignor to keep the books and papers representing the accounts and to attend to collections; no notification of the assignment being given to the debtors. The part played by the assignee prior to troubles of the assignor is a passive one. Under such conditions, possession of the accounts in the sense of dominion and control remains with the assignor, and upon his bankruptcy the summary jurisdiction of the bankruptcy court may be invoked to decide the rights of the trustee in bankruptcy and the assignee. In re Gottlieb & Co. (D. C.) 245 F. 139, affirmed in (C. C. A.) 257 F. 72; In re Borok, supra. See, also, In re Wegman Piano Co. (D. C.) 228 F. 60, 65; Street v. Pacific Indemnity Co. (C. C. A.) 61 F.(2d) 106. I cannot see that it matters that the assignor’s control of the accounts is said to be as agent for the assignee. Compare Hebert v. Crawford, supra; In re Moody (D. C.) 131 F. 525, Where, however, the assignee has notified the debtors of the assignment and has taken complete charge of collections prior to the assignor’s bankruptcy, possession may be said to have passed to the assignee and summary proceedings will not lie. Copeland v. Martin (C. C. A.) 182 F. 805; In re Paramount Fireproof Door Co, (D." }, { "docid": "10832264", "title": "", "text": "only on the assignee’s consent. The assignee might terminate the agency at any time and make collections himself. No notice of the assignment was given to the debtors prior to the filing of the petition in bankruptcy. The question upon these facts is whether the bankruptcy court has jurisdiction to adjudicate the rights of the parties in a summary proceeding. This raises the point as to who was in possession of the accounts when the petition in bankruptcy was filed; if the bankrupt, then the possession passed to the trustee, and the rights of the parties in the accounts are determinable by this court in a summary proceeding of the sort brought here; if the assignee, then jurisdiction to entertain the ease on summary proceeding is wanting. Hebert v. Crawford, 228 U. S. 204, 33 S. Ct. 484, 57 L. Ed. 800; Board of Trade of City of Chicago v. Johnson, 264 U. S. 1, 44 S. Ct. 232, 68 L. Ed. 533. In no event can the bankruptcy court summarily exercise jurisdiction as to the debtors in the accounts, except on their consent. In re Roman (C. C. A.) 23 F.(2d) 556. The difficulty of discussing possession in connection with ehoses in action has been commented on in several cases. See In re Kelley (D. C.) 297 F. 676; In re Roman, supra; In re Borok (C. C. A.) 50 F.(2d) 75. We may lay to one side instances where the chose in action is represented by a note, bond, policy of insurance, or the like. In these eases there is no difficulty in concluding that possession of the intangible right against the obligor is inseparable from possession of the document that evidences the right. In re Detroit Waterproof Fabric Co. (D. C.) 295 F. 338; In re Republic Plumbing Supply Corporation (D. C.) 295 F. 573; In re Hudson River Navigation Corporation (C. C. A.) 57 F.(2d) 175. As to bank accounts, it has been held that possession of the chose in action against the bank goes with the customer in whose name the account stands on the" }, { "docid": "22073218", "title": "", "text": "off a concededly valid claim for damage in transit. While the Reorganization Court undoubtedly had plenary authority over the trustees, and over the “property” of the debtor, it certainly does not have such jurisdiction over whatever funds of respondent might be used to satisfy a judgment against it in favor of the trustees. The trustees’ “property” in this case is a chose in action and under no conceivable circumstances could § 77 authorize the summary determination of the claim in this case. “[T]he bankruptcy court does not have summary jurisdiction to enforce a chose in action against the bankrupt’s obligor, even when the bankrupt’s rights seem clear. . . In re Lehigh & Hudson River R. Co., 468 F. 2d 430, 433 (CA2 1972) (Friendly, C. J.). “Even though [the obligor’s] refusal were no better than colorable, its property remained its own; it had only broken its promise, and, like any other promisor, was liable to an action for damages. . . . It would not be permissible to collect even a bank deposit due a bankrupt by these means.” In re Roman, 23 F. 2d 556, 558 (CA2 1928) (L. Hand, J.). Cases such as Ex parte Baldwin, 291 U. S. 610 (1934), and Warren v. Palmer, 310 U. S. 132 (1940), do no more than reaffirm the well-established doctrine that the jurisdiction of the bankruptcy court over the property of the debtor is exclusive. They do not touch upon the case before us, where the trustees have chosen to convert the chose in action, which is concededly the property of the debtor and subject to the jurisdiction of the Reorganization Court, into a money judgment in another forum. Callaway v. Benton, 336 U. S. 132 (1949), though not on all fours with the present case, can hardly be said to support the result reached by the Court. There an action had been brought in the state courts of Georgia to enjoin the board of directors of a corporation which had leased trackage to the Central of Georgia Railway from consenting to the plan of reorganization which had been" }, { "docid": "13446569", "title": "", "text": "an ordinary debt or claim. But that was said in distinguishing the case from a suit by the trustee to collect a. debt from a resisting debtor, which must certainly be by plenary action. A similar distinction may be made in the case at bar. Were the trustee attempting to collect the accounts from the bankrupt’s debtors, he would have to resort to a plenary suit; he could not claim to be in “possession of the property,” for existence of the property, i. e., a valid chose in action, is the issue in dispute. But where, as here, the debtor is not in an adverse attitude toward the bankrupt and the dispute is between the bankrupt’s trustee and the claimant of a lien upon the debt, we think the debtor may be deemed to hold the debt for the bankrupt in the same sense that the Board of Trade held the seat for the bankrupt, and “possession” of the chose in action may be deemed to pass to the trustee in the one case as much as in the other. So the bankruptcy court may draw to itself the summary determination of which claimant is the proper ob-ligee of the chose in action. This we suggested, though it was not decided, in Re Roman, supra. The case of Copeland v. Martin, 182 F. 805 (C. C. A. 5) might, at first sight, appear to be opposed to this conclusion; but it differs in important respects. It involved an outright assignment rather than one'for security, the debtor had been notified of the assignment, and no right to collect was' reserved to the assignor. It would seem that complete title and “possession” of the chose in action had been transferred to the as-signee before the bankruptcy. In re Paramount Fireproof Door Co., 43 F.(2d) 558 (D. C. E. D. N. Y.), relied upon by the appellant, was also a case where the debtor had been notified of the assignment, and apparently the assignor had not retained the right to collect for his own use. These cases are not, therefore, inconsistent with the" }, { "docid": "7834601", "title": "", "text": "It may be that this chose in action was itself property, as much in the possession of the bankruptcy court as -any chose in action can be. If so, then the bankruptcy court may perhaps draw to itself the summary determination of who is the proper obligee, and the obligor could, if that be true, safely recognize whichever obligee succeeded. So much in any case appears to have been decided in Re Ransford (C. C. A. 6) 194 F. 658, and Orinoco Iron Co. v. Metzel (C. C. A. 6) 230 F. 40, though the opposite was held in Copeland v. Martin (C. C. A. 5) 182 F. 805. See, also, In re Kelley (D. C.) 297 F. 676. We need not decide that question, because the order does not stop there; it compels the obligor to perform, and, as we have said, can proceed only on the notion that not only the obligation is property of the bankrupt, but that its performance is also such before it has been performed. It is, indeed, true that title may change, and property vest, by reason of a contract alone — for instance, a contract of sale. This is not such a ease. Nobody can maintain that, before the payment is made, the bankrupt has any property in the syndicate’s hands. Even though its refusal were no better than colorable, its property remained its own; it had only broken its promise, and, like any other promisor, was liable to an action, for damages. Thus, not only is the order a decree of specific performance, where no such remedy exists, but it ignores the distinction between the obligation to perform and the consequences of performance. .It would not be permissible to collect even a bank deposit due a bankrupt by these means. So far as possession can be imputed to such property at all, it is confined to the rights of the bankrupt to enforce the promise. The trustee must proceed as the bankrupt must have proceeded, in a court having competent jurisdiction in such causes. This was clearly the distinction which the" }, { "docid": "11389738", "title": "", "text": "action may be deemed to pass to the trustee in the one ease as much as in the other. So the bankruptcy court may draw to itself the summary determination of which claimant is the proper obligee of the chose in action.” In the Isaacs Case it was said that another court may not proceed after bankruptcy if, by the petition, the bankruptcy court obtained custody of the property and here we must inquire whether the bankruptcy court obtained possession of tho debt duo from the state. The appellant claims that when tho petition was filed the debt from the state came into the possession of the bankruptcy court so far as determination of the claims of all lien-ors against the debt are concerned. This court has considered the bankruptcy court’s custody of choses in action. In re Hudson River Navigation Corp., 57 F.(2d) 175 (C. C. A. 2); In re Borok, supra. In the latter ease, the res was the bankrupt’s uncollected accounts receivable and we were called upon to determine the rights of the assignee of the accounts under an assignment before bankruptcy, which was given as security for a loan not then in default and which gave the assignor the right to collect and apply the accounts to his general purposes; the debtor not having been notified of the assignment. It was clear under that assignment that, as between the as-signee and the assignor, the bankrupt, the latter had complete dominion over the accounts at the time of bankruptcy and that dominion passed to the bankruptcy court, which thus obtained possession of the accounts as against the assignee. But the instant ease is somewhat different, for a question is presented whether the State as a debtor held the debt only for the bankrupt, at the time the petition was filed, and whether as between the appel-lees and the bankrupt the latter completely possessed and controlled the debt. As stated, tho lien of Schlott was not filed before the petition in bankruptcy, and it does not appear, except in tho statement contained in the brief, when the assignment" }, { "docid": "23666847", "title": "", "text": "disposed of the claim as he chose. His argument that, having assumed its prosecution, he could avoid submitting himself to the jurisdiction of the court where it was pending by hiding behind the formal plaintiff, Gould, needs no answer; we deal with the case as though he had been openly the party plaintiff. He could of course substitute other attorneys, as he did, and Buckley & Buckley were obliged to retire; but the substitution did not affect their charging lien under § 475 of the Judiciary Law of New York, Consol.Laws, c. 30, or their possessory lien upon the papers. The concluding clause of § 475 gives power to the state court to “determine and enforce the lien,” which the 56th Rule of the Supreme Court has declared must be “on such terms as shall be just.” Did Mr. Justice McGoldrick have that power? The first question is whether the bankruptcy court had jurisdiction over the lien of Buckley & Buckley upon the right of action. We have several times held that while the concept of “possession” cannot be appropriately applied to a liability or chose in action, yet in cases involving the summary jurisdiction of the bankruptcy court we would treat the obligee, the bankrupt, as though he were a “possessor” of the res. In re Borok, 2 Cir., 50 F.2d 75; In re Zimmermann, 2 Cir., 66 F.2d 397; In re Weston, 2 Cir., 68 F.2d 913, 98 A.L.R. 319; In re Worrall, 2 Cir., 79 F.2d 88; In re Prince, 2 Cir., 89 F.2d 681; In re Lissak, 2 Cir., 110 F.2d 370. On this account it is possible for a bankruptcy court summarily to adjudicate the claims of any third persons against a cause of action vested in the bankrupt, quite' as though they were claims against chattels in his possession upon petition filed. We need not, and we do not, hold therefore that if the trustee had brought Buckley & Buckley summarily into the bankruptcy court and insisted upon the liquidation of their lien, preparatory for example to a discontinuance or settlement of the action," }, { "docid": "9780245", "title": "", "text": "already distributed is too well settled to need discussion. It is a part of the assets now in the custody of the bankruptcy court. The summary jurisdiction of this court over the contract with the receivers, so far as it has not yet been performed, is not so clear. While it is, of course, impossible to speak of possession of a chose in action, the trustee is as fully vested with Kelley’s rights as is possible, and may be regarded as in possession so far as that idea is applicable at all. A Stock Exchange seat, which is at most a chose in action, is an illustration of this principle. O’Dell v. Boyden, 150 Fed. 731, 80 C. C. A. 397 (C. C. A. 6) ; In re Hoey Tilden & Co. Ex parte Kaufmann, 292 Fed. 269 (S. D. N. Y., filed Nov. 17, 1922). So, too, is a claim against the Treasury of the United States. Orinoco Iron Co. v. Metzel, 230 Fed. 40, 144 C. C. A. 338 (C. C. A. 6). On the other hand, in Copeland v. Martin, 182 Fed. 805, 105 C. C. A. 237 (C. C. A. 5), an assignee of a chose in action successfully resisted the summary jurisdiction of the bankruptcy court. That, however, being the case of an outright assignment, may be regarded as depending upon the fact that the bankrupt had parted with all interest in the res. In the case-at bar the plaintiff in the state suit does not join either the receivers of the Butterworth-Judson Corporation or the judgment debtor. That suit cannot, therefore, result in a decree for payment or a reduction to possession of the choses in action. It is a bare suit to impress upon the trustee’s rights the lien asserted. In such a case, whatever may be thought when the suit includes the obligor, the res in controversy is merely the trustee’s right of action, and with that he is as completely vested, as is possible for that kind of property. Therefore I should not hesitate to assert a summary jurisdiction over the" }, { "docid": "4359173", "title": "", "text": "remaining in or which might thereafter come into his possession, to the Z. & F. Assets Realization Corporation, a New York corporation, for liquidation and distribution among the creditors of Zimmermann & Forshay. Thereafter, on May 22, 1924, the barring order was issued which provided that all creditors failing to file claims by July 2, 1924,'would be forever barred from asserting their claims. Notice of this order was mailed to all creditors appearing on the bankers’ books, and it was published in a newspaper in the city of New York. Appellees did not appear on the books as creditors as to the claims here asserted, and the notice was not mailed to them. On November 23, 1926, the receiver was discharged. The claim against the Deutsche Bank was continued by the Z. & F. Assets Realization Corporation, and, on June 14, 1927, an award of $817,-134.87, the mark account exchanged at 16 cents by the Mixed Claims Commission was made. Some payments on the award have been made by the United States Treasury. Appellees asserted an interest in the payments to be made by their action in the Supreme Court of the District of Columbia, and on appeal the Court of Appeals held that the complaint stated a good cause of action. Doerschuek v. Mellon, 60 App. D. C. 383, 55 F.(2d) 741. Three years after that suit was commenced, the appellants petitioned the court below on December 14, 1932, to enjoin the suit in the District of Columbia because it was barred by the order of May 22, 1924, requiring presentation of the claims in the bankruptcy court. We agree with the court below that the Deutsche Bank account was a debt owing to the alleged bankrupts which came into possession of the bankruptcy court and the funds arising from the debt were also subject to the orders of the bankruptcy court. In re Bor ok, 50 F.(2d) 75 (C. C. A. 2). This is true even though the creditor bankrupt may have been trustee for the bondholders as to part of the debt represented by one general account." }, { "docid": "10832265", "title": "", "text": "the debtors in the accounts, except on their consent. In re Roman (C. C. A.) 23 F.(2d) 556. The difficulty of discussing possession in connection with ehoses in action has been commented on in several cases. See In re Kelley (D. C.) 297 F. 676; In re Roman, supra; In re Borok (C. C. A.) 50 F.(2d) 75. We may lay to one side instances where the chose in action is represented by a note, bond, policy of insurance, or the like. In these eases there is no difficulty in concluding that possession of the intangible right against the obligor is inseparable from possession of the document that evidences the right. In re Detroit Waterproof Fabric Co. (D. C.) 295 F. 338; In re Republic Plumbing Supply Corporation (D. C.) 295 F. 573; In re Hudson River Navigation Corporation (C. C. A.) 57 F.(2d) 175. As to bank accounts, it has been held that possession of the chose in action against the bank goes with the customer in whose name the account stands on the bank’s books, despite the fact that others have legal or equitable claims to the “money,” In re Ransford (C. C. A.) 194 F. 658; In re Zimmermann (C. C. A.) 66 F.(2d) 397. The possession of a stock exchange seat, so far as the jurisdiction of bankruptcy courts is concerned, is held to follow the person recognized by the exchange as the member, irrespective of assignments or claims in favor of others. Board of Trade of City of Chicago v. Johnson, supra; O’Dell v. Boyden (C. C. A.) 150 F. 731, 10 Ann. Cas. 239; In re Hoey (C. C. A.) 290 F. 116. In the case of book accounts and similar claims covered by an assignment as collateral security for a debt, a common practice is for the assignor to keep the books and papers representing the accounts and to attend to collections; no notification of the assignment being given to the debtors. The part played by the assignee prior to troubles of the assignor is a passive one. Under such conditions, possession of" }, { "docid": "7834600", "title": "", "text": "L. HAND, Circuit Judge (after' stating, the facts as above). The trustee’s application necessarily presupposes that the syndicate has money, the property of the bankrupt, which it colorably retains. Such a position alone could justify summary action by the bankruptcy court. Bryan v. Bernheimer, 181 U. S. 188, 21 S. Ct. 557, 45 L. Ed. 814; Taubel v. Fox, Trustee, 264 U. S. 426, 44 S. Ct. 396, 68 L. Ed. 770; May v. Henderson, 268 U. S. 111, 45 S. Ct. 456, 69 L. Ed. 870. Possibly the syndicate unjustly refuses to give Roman his interest in the stock; that was the subject of the New York suit, and is still undetermined. Nobody suggests that the bankruptcy court could summarily dispose of that litigation by directing the performance of that contract, or the- surrender of that stock. The theory is, however, that the same court may direet the performance of the agreement of settlement, a subsequent, independent, executory contract, because that performance is property of the bankrupt, like a chattel in the promisor’s hands. It may be that this chose in action was itself property, as much in the possession of the bankruptcy court as -any chose in action can be. If so, then the bankruptcy court may perhaps draw to itself the summary determination of who is the proper obligee, and the obligor could, if that be true, safely recognize whichever obligee succeeded. So much in any case appears to have been decided in Re Ransford (C. C. A. 6) 194 F. 658, and Orinoco Iron Co. v. Metzel (C. C. A. 6) 230 F. 40, though the opposite was held in Copeland v. Martin (C. C. A. 5) 182 F. 805. See, also, In re Kelley (D. C.) 297 F. 676. We need not decide that question, because the order does not stop there; it compels the obligor to perform, and, as we have said, can proceed only on the notion that not only the obligation is property of the bankrupt, but that its performance is also such before it has been performed. It is, indeed, true" }, { "docid": "11081796", "title": "", "text": "is applicable to the situation here, for the party claiming to hold adversely in the present ease brought the action in intervention and consented thereby to the jurisdiction. The possession referred to in the authorities to confer jurisdiction may be actual or constructive. O’Dell v. Boyden (C. C. A.) 150 F. 731, 10 Ann. Cas. 239; In re Cochran et al. (D. C.) 40 F.(2d) 282; In re Jones (D. C.) 42 F.(2d) 269. O’Dell v. Boyden and In re Cochran, supra, were cases where a seat on the stock exchange was held to be' constructively in possession of the bankruptcy eourt, even though the approval of the board of directors of the exchange was necessary to a transfer of the seat. In the Cochran Case (D. C.) 40 F.(2d) 282, 284, the court said: “The possession may have been constructive and not manual, but it was only because it was not capable of more tangible custody, and it was an adjudication not in posesssion of adverse claimant, and the jurisdiction of the bankruptcy court attached.” These various authorities abundantly support the proposition that a referee in bankruptcy has no jurisdiction to make a summary order determining title to property claimed to belong to the bankrupt estate and which is not in such possession of the bankruptcy court as to constitute “custodia legis” but is held by an adverse claimant, unless such adverse claimant consents to jurisdiction. The procedure adopted is not important if such possession of the property in controversy exists. This court held in Galbraith v. Robson-Hilliard Co., 216 F. 842, that if the court had possession of the property it could adopt any procedure that constituted due process of law and that a summary procedure was due process. So the queries arising here are: (a) Was there actual or constructive possession of the property by the bankruptcy court? (b) If not, did the Lyvers Syndicate, through Lyvers as trustee, consent to jurisdiction? Appellant insists that the trustee in bankruptcy had no possession of the property covered by the Bilyou lease. Prior to bankruptcy proceedings against the Gusher" }, { "docid": "21503852", "title": "", "text": "virtue of its ancillary jurisdiction in bankruptcy, for an order enjoining the proposed sale, alleging, not that the pledge was invalid, or that the bank was not proceeding in accordance with the agreement, and that he wished to prepare to contest its rights in the state court; but that a sale at that time would result in great sacrifice of the collateral, which was amply sufficient to protect tho loans; that some of the securities were essential to the conduct of its business; and that a reorganization was in contemplation at which all its property would be sold. It does not appear whether the notes or .certificates of stock were endorsed; nor do we know whether a chattel mortgage on the barge was over executed, or whether indeed the supposed lien upon it was more than a contract to mortgage. But the contract affected to make outright assignment of the property — though only as security — and to deliver it. The court denied the motion, and the trasteo appealed. The case presents a difficulty we have before discussed (In re Roman (C. C. A.) 23 F.(2d) 556; In re Borok (C. C. A.) 50 F.(2d) 75); that of applying to dioses in action notions drawn from the law of chattels, more particularly of deciding whom we shall say to he in “possession” of such property. A« to both notes (section 79 Negotiable Instillments Law [Consol. Laws N. Y. c. 38]), and shares (section 162 (b), Personal Property Law [Consol. Laws N. Y. c. 41]), delivery of the documents under a written assignment transfers “title,” when the transfer is absolute; and by “title” we understand that the assignee becomes the obligee. Though these transfers were in pledge, it would seem that pro tanto the sections might convey to the pledgee his “special property,” whatever that may be, though so far as we can find the ease has not arisen. But as the question does not turn upon “title” but “possession,” the difficulty still remains. It seems to us unnecessary to refine too far; in substance, entire control over the obligation" }, { "docid": "9520134", "title": "", "text": "“constructive” possession of the debtor or the bankrupt. It is only when a chattel is withheld by its actual possessor under a substantial claim of right or when an obligation is disputed by the alleged obligor that the trustees must resort to a plenary action in a court that has personal jurisdiction over the adverse claimant in order to establish that the property is an asset subject to the jurisdiction of the reorganization or bankruptcy court. See, for example, In re Standard Gas & Electric Co., 3d Cir. 1951, 119 F.2d 658; Bovay v. H. M. Byllesby & Co., 5th Cir. 1937, 88 F.2d 990; Bradley v. St. Louis Terminal Warehouse Co., 8th Cir. 1951, 189 F.2d 818. But if an obligor admits the fact and the amount of its indebtedness to the debtor or bankrupt, the reorganization or bankruptcy court may exercise jurisdiction over this intangible property directly and immediately, as it would in the case of a chattel in actual or constructive possession. In the Matter of Penn Central Transportation Co., supra; In re Borok, 2d Cir. 1931, 50 F.2d 75; In re Zimmermann, S.D.N.Y.1933, 4 F.Supp. 801, aff’d 2d Cir. 1933, 66 F.2d 397. In its initial order instituting the Le-high Valley reorganization the district court properly and comprehensively asserted its authority over the property of the railroad. Paragraph 2 of Order No. 1 authorized the debtor “to collect all . accounts of the debtor.” Paragraph 10 of the same order provided that “[a] 11 persons . . . are restrained and enjoined from interfering with, seizing . . .or enforcing liens upon, or in any matter disturbing any portion of the assets . . . credits, choses in action . . . belonging to or in the possession of the debtor. ...” We now apply these concepts and mandates to the railroad’s claim against Jersey City. As obligor, Jersey City does not challenge the fact or the amount of its obligation to the railroad as that obligation existed in July 1970 when this reorganization proceeding was instituted. Indeed, but for the intervention of the present appellants" }, { "docid": "9780244", "title": "", "text": "LEARNED HAND, District Judge (after stating the facts as above). First, as to the bankrupt: The plaintiff’s right is founded on contract, and, so far as any decree is asked against him personally, it is a dischargeable claim. His right to an injunction pro tanto is unquestionble, and he must have it. As he has by the adjudication lost any interest in the contract with the receivers or in the judgment, ■ he is not a necessary party to the suit. However, if the trustee is a proper party, Kelley is also a proper party, merely as assignor in invitum of the trustee’s interest. In that case, however, the decree must be limited to concluding him from disputing any declaration of the plaintiff’s interest in the contract with the receivers or in the judgment. No decree of account or other personal judgment may go against him. Next, as to the trustee: The jurisdiction of this court to enjoin the suit so far as it seeks to adjudicate any rights of the trustee to the money already distributed is too well settled to need discussion. It is a part of the assets now in the custody of the bankruptcy court. The summary jurisdiction of this court over the contract with the receivers, so far as it has not yet been performed, is not so clear. While it is, of course, impossible to speak of possession of a chose in action, the trustee is as fully vested with Kelley’s rights as is possible, and may be regarded as in possession so far as that idea is applicable at all. A Stock Exchange seat, which is at most a chose in action, is an illustration of this principle. O’Dell v. Boyden, 150 Fed. 731, 80 C. C. A. 397 (C. C. A. 6) ; In re Hoey Tilden & Co. Ex parte Kaufmann, 292 Fed. 269 (S. D. N. Y., filed Nov. 17, 1922). So, too, is a claim against the Treasury of the United States. Orinoco Iron Co. v. Metzel, 230 Fed. 40, 144 C. C. A. 338 (C. C. A. 6)." }, { "docid": "21503853", "title": "", "text": "we have before discussed (In re Roman (C. C. A.) 23 F.(2d) 556; In re Borok (C. C. A.) 50 F.(2d) 75); that of applying to dioses in action notions drawn from the law of chattels, more particularly of deciding whom we shall say to he in “possession” of such property. A« to both notes (section 79 Negotiable Instillments Law [Consol. Laws N. Y. c. 38]), and shares (section 162 (b), Personal Property Law [Consol. Laws N. Y. c. 41]), delivery of the documents under a written assignment transfers “title,” when the transfer is absolute; and by “title” we understand that the assignee becomes the obligee. Though these transfers were in pledge, it would seem that pro tanto the sections might convey to the pledgee his “special property,” whatever that may be, though so far as we can find the ease has not arisen. But as the question does not turn upon “title” but “possession,” the difficulty still remains. It seems to us unnecessary to refine too far; in substance, entire control over the obligation passes to the pledgee, who certainly gets possession of the documents, without which, so long as the pledgee acts in accord with the agreement, the pledgor cannot assert any rights as obligee. Por practical purposes the pledgee has therefore immediate dominion as between the two, and with it goes the power to resist any ao tion by the bankruptcy court, which must be founded on the fact that the bankrupt had such dominion, when the petition was filed. This was implicit in our ruling in In re Mer-tens, 144 F. 818, and we directly held so in In re Mayer, 157 F. 836; since when it has been generally understood that bankruptcy does not touch the power of a pledgee of shares of stock to close out his collateral. Nothing would be more disturbing to transactions of the kind than a doubt thrown upon that ruling. Millions of dollars are daily lent upon like collateral, which • fluctuates from hour to hour; unless the pledgee is free to choose his time to sell, his security" }, { "docid": "11389737", "title": "", "text": "the court’s possession cannot be affected by actions brought in other courts.” So debts due the bankrupt by third parties are within the constructive ju risdietion of the bankruptcy court. In re Roman, 23 F.(2d) 556 (C. C. A. 2); In re Borok, 50 F.(2d) 75, 77 (C. C. A. 2). In the latter case, this court said: “Were the trustee attempting to collect the accounts from the bankrupt’s debtors, he would have to- resort to a plenary suit; he could not claim to be in ‘possession of the property,’ for existence of the property, i. e., a valid chose in action, is tho issue in dispute. But where, as here, tho debtor is not in an adverse attitude toward the bankrupt and the dispute is he-tween the bankrupt’s trustee and the claimant of a lien upon the debt, we think the debt- or may he deemed to hold the debt for the bankrupt in the same sense that the Board of Trade held the seat for the bankrupt, and ‘possession’ of tho chose in action may be deemed to pass to the trustee in the one ease as much as in the other. So the bankruptcy court may draw to itself the summary determination of which claimant is the proper obligee of the chose in action.” In the Isaacs Case it was said that another court may not proceed after bankruptcy if, by the petition, the bankruptcy court obtained custody of the property and here we must inquire whether the bankruptcy court obtained possession of tho debt duo from the state. The appellant claims that when tho petition was filed the debt from the state came into the possession of the bankruptcy court so far as determination of the claims of all lien-ors against the debt are concerned. This court has considered the bankruptcy court’s custody of choses in action. In re Hudson River Navigation Corp., 57 F.(2d) 175 (C. C. A. 2); In re Borok, supra. In the latter ease, the res was the bankrupt’s uncollected accounts receivable and we were called upon to determine the rights of" }, { "docid": "13446567", "title": "", "text": "was as much in “possession” of the assigned accounts as he could be of any chose in action. He had the right to collect from the debtors and to use the proceeds as he saw fit. The debtors had received no notification of the assignment; and Mayerson, though the agreement declared him to be irrevocably constituted the assignor’s attorney for collection, was not to use this power unless the assignor was in default under the agreement, and there is no suggestion that default had occurred prior to the filing of the petition. Under such circumstances we believe that the bankruptcy court has power to determine summarily the respective rights of the trustee and the assignee in respect to the assigned accounts outstanding at the date of the petition. So it was held by Judge Rellstab in In re Gottlieb & Co., 245 F. 139, 146 (D. C. N. J.), affirmed in 257 F. 72 (C. C. A. 3), without reference to this point. That it is possible for a bankrupt to have “possession” of intangible property in such sense as to give the bankruptcy court summary jurisdiction over adverse claims, appears from numerous eases. Chicago Board of Trade v. Johnson, 264 U. S. 1, 44 S. Ct. 232, 68 L. Ed. 533; O’Dell v. Boyden, 150 F. 731, 10 Ann. Cas. 239 (C. C. A. 6); In re Ransford, 194 F. 658 (C. C. A. 6); Orinoco Iron Co. v. Metzel, 230 F. 40 (C. C. A. 6); In re Roman, 23 F.(2d) 556, 558 (C. C. A. 2). It is trc e that in Chicago Board of Trade v. Johnson, the Chief Justice said, at page 12 of 264 U. S., 44 S. Ct. 232, 234, of his opinion : “Membership on the Board of Trade is different from a mere chose in action, like a simple claim or debt asserted against another, and only to be enjoyed after its satisfaction or enforcement. It is a continuously enjoyed ‘incorporeal right.’ ” There is an implication in these words that one cannot properly be said to be in possession of" } ]

[ { "docid": "22877270", "title": "", "text": "the Secretary of the department under whose supervision such reservation falls shall deem necessary for the adequate protection and utilization of such reservations.” 16 U. S. C. § 797(e). The mandatory nature of the language chosen by Congress appears to require that the Commission include the Secretary’s conditions in the license even if it disagrees with them. Nonetheless, petitioners argue that an examination of the statutory scheme and legislative history of the Act shows that Congress could not have meant what it said. We disagree. We first note the difficult nature of the task facing petitioners. Since it should be generally assumed that Congress expresses its purposes through the ordinary meaning of the words it uses, we have often stated that “ ‘[ajbsent a clearly expressed legislative intention to the contrary, [statutory] language must ordinarily be regarded as conclusive.’” North Dakota v. United States, 460 U. S. 300, 312 (1983) (quoting Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980)). Congress’ apparent desire that the Secretary’s conditions “shall” be included in the license must therefore be given effect unless there are clear expressions of legislative intent to the contrary. Petitioners initially focus on the purpose of the legislation that became the relevant portion of the FPA. In 1920, Congress passed the Federal Water Power Act in order to eliminate the inefficiency and confusion caused by the “piecemeal, restrictive, negative approach” to licensing prevailing under prior law. First Iowa Hydro-Electric Cooperative v. FPC, 328 U. S. 152, 180 (1946). See H. R. Rep. No. 61, 66th Cong., 1st Sess., 4-5 (1919). Prior to passage of the Act, the Secretaries of the Interior, War, and Agriculture each had authority to issue licenses for hydroelectric projects on lands under his respective jurisdiction. The Act centralized that authority by creating a Commission, consisting of the three Secretaries, vested with exclusive authority to issue licenses. Petitioners contend that Congress could not have intended to empower the Secretary to require that conditions be included in the license over the objection of the Commission because that would frustrate the purpose of centralizing" } ]

[ { "docid": "16896492", "title": "", "text": "confronted the bankruptcy process, some for the first time, in the course of Johns-Manville and other asbestos bankruptcy cases. Not enjoying the process, these attorneys lobbied to exempt to the extent possible, personal injury claims from adjustment in bankruptcy. Result: 28 U.S.C. § 157(b)(2)(B), (O), § 157(b)(5) and § 1411(a). Is there a constitutional dimension to these latter provisions? No.”). A misconception as to the reason for Section 157’s special treatment of “personal injury tort claims” may affect its construction. It is one thing to construe a jurisdictional limitation (i.e., Section 157’s special treatment of “personal injury tort claims”) enacted by Congress in some sense on an involuntary basis because such limitation was intended merely to remedy a constitutional defect in the jurisdictional scheme. Clearly, the narrowest construction consistent with the Constitution likely would be the correct construction there. However, when the jurisdictional limitation in question was enacted by Congress as part of the normal political process and not to remedy a constitutional defect in the jurisdictional scheme, the argument for a “narrower” construction becomes less persuasive. On the other hand, the “broader” view may place too much reliance on whether the alleged claim would be considered a “personal injury tort” in a nonbankruptcy context. That presents at least some risk that financial, business or property tort claims also could be withdrawn from the bankruptcy system if that “broader” view is blindly followed. Given the history of Section 157’s special treatment of “personal injury tort claims”, that is a result that Congress cannot have intended. See Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 1984 U.S.C.C.A.N. (98 Stat. 333) 576, 580 (statement of Congr. Kastenmeier that “personal injury tort claim” exception was intended to cover only a “narrow range” of claims). Cf. Horwitz v. Alloy Automotive Co., 992 F.2d 100, 103 (7th Cir.1993) (noting that “business torts” should not be “shoehorned” into the category of “personal injury tort claim” under Section 157(b)). Accordingly, although this court here adopts the “broader” view as the “better” view, it does not do so unconditionally. Rather, in cases where it appears" }, { "docid": "18793641", "title": "", "text": "or lose interim status is a legitimate exercise of the government’s regulatory power,” Slip op. at 2, and went on to say that “[t]he incidental expense which debtor will incur to comply with environmental laws does not convert the action into an enforcement of a money judgment, which would be automatically stayed.” Id. at 3. We agree with the conclusion of the bankruptcy court and the district court that the automatic stay does not apply to the EPA’s actions in this case. The EPA has the authority to enforce its regulatory power, that is, to require CORCO to comply with the federal and state environmental laws and regulations at issue in this case. The enforcement actions of the EPA in this case do not come within the ambit of § 362(a)(1) because they are actions to en force police and regulatory powers, thus falling within the § 362(b)(4) exception to the automatic stay. The EPA’s actions are not an attempt to enforce a money judgment, proscribed by § 362(b)(5), notwithstanding the fact that CORCO will be forced to expend funds in order to comply. B. The exception from the automatic stay for proceedings to enforce police and regulatory powers is not, as appellants suggest, limited to those situations where “imminent and identifiable harm” to the public health and safety or “urgent public necessity” is shown. The words of §§ 362(b)(4) and 362(b)(5) allow for no such reading. The language of these exceptions is unambiguous — it does not limit the exercise of police or regulatory powers to instances where there can be shown imminent and identifiable harm or urgent public necessity. Where the language of a statute is unambiguous, in the absence of “ ‘clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.’ ” North Dakota v. United States, 460 U.S. 300, 312, 103 S.Ct. 1095, 1102, 75 L.Ed.2d 77 (1983) (quoting Consumer Product Safety Comm. v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)). In this case, the legislative history of the statutory provisions does not" }, { "docid": "4681691", "title": "", "text": "tort”, the district court did not directly address that issue because it concluded that withdrawal of the reference was mandatory under 28 U.S.C. § 157(d) because the plaintiff was a creditor who alleged a non-dischargeability claim which required substantial consideration of both 11 U.S.C. § 523(a)(6) and 42 U.S.C. § 1983. Bankruptcy Judge Gerling in In re Smith, 95 B.R. 286 (Bankr.N.D.N.Y.1988) and in In re Boyer, 93 B.R. 313 (Bankr.N.D.N.Y.1988) concluded that the term “personal injury tort” as expressed in 28 U.S.C. § 157(b)(5) embraced a broad category of private or civil wrongs or injuries, even if bodily injury is not involved, including actions commenced under 42 U.S.C. § 1983, with the result that an action instituted under 42 U.S.C. § 1983 should be dismissed for lack of subject matter jurisdiction in the bankruptcy court. On the other hand, Chief Judge Charles Brieant, in this district, has held that a tort claim for a statutory violation of a New York State anti-discrimination law does not constitute a “personal injury tort” within the restrictive meaning of 28 U.S.C. § 157(b)(5) because a claim for a tort without trauma or bodily injury is not within the statutory exception for a personal injury tort. Perino v. Cohen (In re Cohen), 107 B.R. 453 (Bankr.S.D.N.Y.1989). The Cohen decision is binding on this court and reflects the view that Congress intended this exception for a “narrow range of claims”. Accordingly, the defendants’ motion to dismiss the complaint for failing to state a claim within the jurisdiction of this court is denied. However, to the extent that the complaint asserts a claim against William D. Spain, Jr., as Attorney for Putnam County, for acting with color of municipal authority in violation of the rights of the plaintiffs, it fails to state a cognizable claim. An official of a municipality who acts within the scope of his official duties may not be held personally liable for conduct on the part of the municipality although the municipality may be liable for such conduct. Dunton v. County of Suffolk, 729 F.2d. 903, 907 (2d. Cir.1984). See Owen v." }, { "docid": "19177286", "title": "", "text": "libel, false imprisonment, malicious prosecution, abduction, seduction and criminal conversation, are expressly provided for, showing the clear intent of the legislature to limit ‘injuries to the person’ to those of a physical nature.” Id. at 653 (quoting Bassett v. Bassett, 20 Ill.App. 543, 548 (4th Dist.1886)). Although Illinois courts have concluded that malicious prosecution is not an “injury to the person,” malicious prosecution is listed under the general category of “Personal injury” in § 5/13-202. Hence, a claim which is personal injury in nature need not involve a direct physical injury. Further, simply because a certain tort is not listed under § 5/13-202 does not mean it is not personal injury in nature for purposes of § 157(b)(5). As the Seventh Circuit stated, “contrary to its express language, section 13-202 does not extend to all personal injury claims.” Smith v. National Health Care Servs. of Peoria, 934 F.2d 95, 97 (7th Cir.1991). Moreover, Illinois case law relating to its various statutes of limitations is inappo-site to the federal subject matter jurisdictional limits drawn by § 157(b)(5). As the Court previously stated, Plaintiffs complaint must be withdrawn to the District Court for determination of Defendant’s liability and the amount of damages to be awarded Plaintiff on all counts of his complaint under § 157(b)(5), even under a narrow definition of “personal injury.” The United States District Court for the Southern District of New York, when narrowly construing “personal injury tort,” stated that “a psychiatric impairment beyond mere shame and humiliation” is encompassed by “the traditional, plain meaning sense” of that term. Perino v. Cohen (In re Cohen), 107 B.R. 453, 455 (S.D.N.Y.1989). Plaintiffs allegations of various physical and psychiatric trauma go far beyond “mere shame and humiliation.” The Court can think of few things more traumatic than the stress emanating from being prevented from seeing one’s own children and falsely accused of sexually molesting a child. Likewise, the gravamen of Plaintiffs complaint involves severe mental and physical injuries allegedly caused by Defendant’s acts. See Bertholet, 126 B.R. at 416 (“[I]f a mental distress does not involve physical injury, then only if" }, { "docid": "11588067", "title": "", "text": "the most appealing because it is closely aligned with what are traditionally thought of as the ‘common law torts,”’ including torts resulting in reputational harm. Smith, 389 B.R. at 908. But this does not explain why the statutory language added in the 1984 Amendments should be read in a manner aligned with the common law definition, particularly since that is not what Congress intended. As set forth above, importation of the common law meaning of “personal injury” would run contrary to the principles of statutory interpretation. Finally, the Claimants contend that a process under which the bankruptcy court would determine GotNews’s Claims prior to Article III adjudication of Johnson’s Claims would violate their equal protection rights by giving a natural person access to an Article III tribunal but denying it to a corporate person, and by making Johnson’s access to Article III adjudication “ephemeral.” (GotNews/Johnson Supplement at ¶¶ 25-27.) This concern is misplaced as this Court may properly resolve all of the Claims for the reasons set forth above. Additionally, this concern highlights another benefit of the narrow approach: courts should construe statutes to avoid constitutional problems unless the avoiding construction is plainly contrary to congressional intent. Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988). Here, application of the narrow approach avoids the potential constitutional problem the Claimants raise. For these reasons, the Court concludes that the “personal injury tort” exception to core jurisdiction set forth at 28 U.S.C. § 157(b)(2)(B) is limited to claims involving bodily injury, physical trauma and/or a severe “psychiatric impairment beyond mere shame and humiliation,” Cohen, 107 B.R. at 455, and the Claims do not meet this definition. Accordingly, this Court has core jurisdiction to liquidate the Claims. B. Applicability of the California Anti-SLAPP Statute 1. The California Anti-SLAPP Statute SLAPP refers to “strategic lawsuits against public participation.” California, like many other states, has enacted an anti-SLAPP statute “in the public interest to encourage continued participation in matters of public significance, [which] should not be chilled through abuse of" }, { "docid": "18620160", "title": "", "text": "non-Artiele III tribunal, see 28 U.S.C. § 636(a)(3), (c)(1) (1982) (statutory authority of magistrates to conduct jury trials in certain cases), and thus, we believe, is aware of the language necessary to expressly grant that authority. The language of the 1984 Act does not grant jury trial authority. C. Implied Authority Since the language of the 1984 Act does not expressly grant jury trial authority, we look to the legislative history for evidence that Congress intended to grant that authority. Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984); West v. Bergland, 611 F.2d 710, 723 (8th Cir.1979), cert. denied, 449 U.S. 821, 101 S.Ct. 79, 66 L.Ed.2d 23 (1980). The bankruptcy judge concluded that a “comprehensive reading” of sections 151, 157 and 1411 of title 28 demonstrated Congress’ implicit intent to grant jury trial authority. Some courts that have found implied authority for bankruptcy courts to conduct jury trials have relied on the limitations placed on the district court’s authority to conduct jury trials. See 28 U.S.C. § 157(b)(5) (personal injury tort and wrongful death actions tried by jury in the district court). This limitation on the forum for these specific actions suggests to some courts that all other jury trials are to be held in the bankruptcy court. See Perino v. Cohen (In Re Cohen), 107 B.R. 453, 455 (S.D.N.Y.1989) (statute contemplates that jury trials are to be held in bankruptcy court since only personal injury and wrongful death jury trials are in the district court); Wolfe v. First Federal Savings & Loan Assoc. of Paragould (In Re Wolfe), 68 B.R. 80, 87-88 (Bankr.N.D.Tex.1986) (specific limitation in section 157 does not implicitly prohibit bankruptcy court from conducting jury trials); Morse Elec. Co. v. Logicon, Inc. (In Re Morse Elec. Co.), 47 B.R. 234, 238 (Bankr.N.D.Ind.1985) (bankruptcy court not prohibited from conducting jury trial unless claim involves wrongful death or personal injury). We reject this argument as contrary to Congress’ intent. The legislative history of the 1984 Act, while not particularly illuminating on this issue, does not support this argument. The possibly relevant" }, { "docid": "6543560", "title": "", "text": "performance. Before the 1984 amendments, estimation under section 502(c)(1) was required if fixing or liquidation would unduly delay the closing (instead of administration) of the case. . 28 U.S.C. § 157(b)(2)(B) reads in pertinent part: (2) Core proceedings include, but are not limited to— (B) ... estimation of claims or interest for the purposes of confirming a plan under chapter 11 or 13 of title 11 but not the liquidation or estimation of contingent or unliqui-dated personal injury tort or wrongful death claims against the estate for purposes of distribution in a case under title 11[.) . 28 U.S.C. § 157(b)(2)(C)) reads: (2) Core proceedings include, but are not limited to— (O) Other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship, except personal injury tort or wrongful death claims. . 28 U.S.C. § 157(b)(5) reads: 5) The district court shall order that personal injury tort and wrongful death claims be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose, as determined by the district court in which the bankruptcy case is pending. . Congress' intent is critical in determining what is and what is not a personal injury tort claim for the purpose of bankruptcy court jurisdiction. Legislative history is not helpful in making this determination. It is noted that in other contexts, \"injuries to the person or personal injuries comprehend mental distress, annoyance, inconvenience, humiliation, and such other manifestations of disturbed or perturbed feelings as ordinary persons are supposed to be subject to.” Hatcher v. Southern Ry. Co., 191 Ala. 634, 636, 68 So. 55, 56 (1915). . See and cf. Bittner v. Borne Chemical Co., Inc., 691 F.2d 134 (3rd Cir.1982), criticized in Treatment of Contingent and Unliquidated Claims Under the Bankruptcy Code, Weintraub and Res-nick, 15 UCC LJ. 373 (1983). . 28 U.S.C. § 1411 allows jury trials in such situations; however, it is questionable whether § 1411 applies to these cases filed before July 10, 1984," }, { "docid": "16896493", "title": "", "text": "less persuasive. On the other hand, the “broader” view may place too much reliance on whether the alleged claim would be considered a “personal injury tort” in a nonbankruptcy context. That presents at least some risk that financial, business or property tort claims also could be withdrawn from the bankruptcy system if that “broader” view is blindly followed. Given the history of Section 157’s special treatment of “personal injury tort claims”, that is a result that Congress cannot have intended. See Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 1984 U.S.C.C.A.N. (98 Stat. 333) 576, 580 (statement of Congr. Kastenmeier that “personal injury tort claim” exception was intended to cover only a “narrow range” of claims). Cf. Horwitz v. Alloy Automotive Co., 992 F.2d 100, 103 (7th Cir.1993) (noting that “business torts” should not be “shoehorned” into the category of “personal injury tort claim” under Section 157(b)). Accordingly, although this court here adopts the “broader” view as the “better” view, it does not do so unconditionally. Rather, in cases where it appears that a claim might be a “personal injury tort claim” under the “broader” view but has earmarks of a financial, business or property tort claim, or a contract claim, the court reserves the right to resolve the “personal injury tort claim” issue by (among other things) a more searching analysis of the complaint. Here, the court concludes that the portion of the Successor Liability Claim which relates to the “Sexual Harassment” counts of the Complaint (the “Sexual Harassment Successor Liability Claim”) constitutes a “personal injury tort claim” under the “broader” view. That is because claims of sexual harassment in the workplace are actionable under Title VII (if actionable under Title VII at all) as unlawful employment discrimination based on sex. See 42 U.S.C. § 2000e-2 ; Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (“Without question, when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex [in violation of Title VII].” (first alteration in original)). See" }, { "docid": "11588049", "title": "", "text": "the Bankruptcy Code to this Court). However, bankruptcy courts exercise limited power to enter final orders and judgments with respect to matters that are not core. E.g., Stern v. Marshall, 564 U.S. 462, 474-75, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). The “liquidation or estimation of contingent or unliquidated personal injury tort or wrongful death claims against the estate for purposes of distribution” in a bankruptcy case is not core, 28 U.S.C. § 157(b)(2)(B), and must be tried in the District Court where the bankruptcy case is pending or where the claim arose. 28 U.S.C. § 157(b)(5). Accordingly, the threshold issue is whether the Claimants’ defamation and related claims assert personal injury tort claims within the meaning of these statutory provisions. The starting point for the interpretation of any statute is the plain language of the statute itself. United States v. Ron Pair Enters., 489 U.S. 235, 241, 109 5.Ct. 1026, 103 L.Ed.2d 290 (1989). “The plain meaning of legislation should be conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’ ” Id. at 242, 109 S.Ct. 1026 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982)); accord Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000). Plainness or ambiguity is determined by reference to the statutory language itself, “the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992)); accord United Sav. Assn. of Texas v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) (“Statutory construction ... is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme ...." }, { "docid": "18492225", "title": "", "text": "of personal injury claims for purposes of distribution; the bankruptcy court may conduct a threshold inquiry on the limited issue of whether personal injury claimants have allowable claims, so long as the court stops short of liquidating those claims it allows; a jury trial is not required in personal injury claims allowance proceedings unless there is a genuine factual dispute; and eventually all allowable personal injury claims must be sent to district court or the court where the claim arose for liquidation, unless the parties agree otherwise. IV. JURY TRIALS IN CLAIMS ALLOWANCE PROCEEDINGS The jurisdiction of the bankruptcy court is governed by 28 U.S.C. § 157. Bankruptcy judges have authority to hear and determine all cases arising under Title 11 and core proceedings. § 157(b)(1). Core proceedings, defined in § 157(b)(2)(B), include: allowance or disallowance of claims ... and estimation of claims or interests for the purposes of confirming a plan ... but not the liquidation or estimation of contingent or unliquidated personal injury tort or wrongful death claims against the estate for purposes of distribution in a case under title 11. All personal injury claims shall be tried in the district court in which the bankruptcy is pending, or where the claim arose. § 157(b)(5). Title 11 does “not affect any right to trial by jury that an individual has under applicable nonbank-ruptcy law with regard to personal injury or wrongful death tort claims.” 28 U.S.C. 1411(a). The scant legislative history is of little help in divining the intended scope of bankruptcy court jurisdiction over personal injury claims in claims allowance proceedings. The court concludes from the statutory language that jury trials are not required for personal injury claims at the claims allowance stage. The inquiry now shifts to whether this conclusion comports with the Seventh Amendment. The claims allowance process is an integral component of the court’s equitable power to restructure debtor-creditor relationships. Langenkamp v. Culp, — U.S. -, 111 S.Ct. 330, 331, 112 L.Ed.2d 343 (1990). A chief purpose of the bankruptcy laws is to secure a prompt and effectual administration and settlement of debtor’s estate" }, { "docid": "18492226", "title": "", "text": "of distribution in a case under title 11. All personal injury claims shall be tried in the district court in which the bankruptcy is pending, or where the claim arose. § 157(b)(5). Title 11 does “not affect any right to trial by jury that an individual has under applicable nonbank-ruptcy law with regard to personal injury or wrongful death tort claims.” 28 U.S.C. 1411(a). The scant legislative history is of little help in divining the intended scope of bankruptcy court jurisdiction over personal injury claims in claims allowance proceedings. The court concludes from the statutory language that jury trials are not required for personal injury claims at the claims allowance stage. The inquiry now shifts to whether this conclusion comports with the Seventh Amendment. The claims allowance process is an integral component of the court’s equitable power to restructure debtor-creditor relationships. Langenkamp v. Culp, — U.S. -, 111 S.Ct. 330, 331, 112 L.Ed.2d 343 (1990). A chief purpose of the bankruptcy laws is to secure a prompt and effectual administration and settlement of debtor’s estate within a limited period. Katchen v. Landy, 382 U.S. 323, 328, 86 S.Ct. 467, 472, 15 L.Ed.2d 391 (1966). The power to allow, disallow and reconsider claims is of basic importance in administration of the bankruptcy estate. Unless an action involves “public rights,” parties cannot be deprived of the Seventh Amendment guarantee of a jury trial. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 2796, 106 L.Ed.2d 26 (1989). The test for determining a public right in cases not arising between the government and others is whether the statutory right is closely integrated with a federal regulatory scheme that Congress has power to enact. 109 S.Ct. at 2797. Although stopping short of declaring restructuring of debtor-creditor relations a public right, the Supreme Court noted that “restructuring of debtor-creditor relations, which is at the core of the federal bankruptcy power, must be distinguished from the adjudication of state-created private rights.” Granfinanciera, 109 S.Ct. at 2798 n. 12, quoting Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 71, 102 S.Ct. 2858," }, { "docid": "11588048", "title": "", "text": "for the Southern District of New York. (Id. atm, 30.) Given the numerous legal issues involved and in the interest of efficiency, the Court directed the parties to meet and confer regarding scheduling and briefing on the Omnibus Objections. {Scheduling Order at 2.) Subsequently, the parties agreed that they would proceed by submitting the two, aforementioned issues to the Court in the first instance: “(a) which of the ... Claims, if any, are ‘personal injury tort and wrongful death claims’ within the meaning of ... section 157(b)(2)(B) of [title 28 of the United States Code] and (b) whether the California anti-SLAPP statute applies in these contested matters, and if so, in what manner.” (Scheduling Order at ¶2.) DISCUSSION A. “Personal Injury Tort” Claims Bankruptcy courts have jurisdiction over all civil proceedings arising under, arising in or related to cases under the Bankruptcy Code. 28 U.S.C. § 1334(b); see also Amended Standing Order of Reference, dated Jan. 31, 2012, No. M-431, 12 Mise. 00032 (referring proceedings in this District arising under, arising in or related to the Bankruptcy Code to this Court). However, bankruptcy courts exercise limited power to enter final orders and judgments with respect to matters that are not core. E.g., Stern v. Marshall, 564 U.S. 462, 474-75, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). The “liquidation or estimation of contingent or unliquidated personal injury tort or wrongful death claims against the estate for purposes of distribution” in a bankruptcy case is not core, 28 U.S.C. § 157(b)(2)(B), and must be tried in the District Court where the bankruptcy case is pending or where the claim arose. 28 U.S.C. § 157(b)(5). Accordingly, the threshold issue is whether the Claimants’ defamation and related claims assert personal injury tort claims within the meaning of these statutory provisions. The starting point for the interpretation of any statute is the plain language of the statute itself. United States v. Ron Pair Enters., 489 U.S. 235, 241, 109 5.Ct. 1026, 103 L.Ed.2d 290 (1989). “The plain meaning of legislation should be conclusive, except in the ‘rare cases [in which] the literal application of a" }, { "docid": "16625938", "title": "", "text": "”[f]or purposes of rule that prejudgment interest is allowed if a claim is liquidated but not if a claim is unliquidated, claim is 'unliquidated’ when the amount of the damages cannot be computed except on conflicting evidence, inferences and interpretations.” Id. . It may seem curious that Congress would make the kind of distinction described above. Why, after all, should extensive protection be afforded to the quantification of a tort creditor’s claim, yet denied in large part to the even more critical question of whether the claim is legally valid? As suggested earlier, supra p. 349, the legislative history relating to the 1984 amendments is not particularly enlightening with respect to this rather basic question. It is possible that the apparent anomaly simply represents a legislative compromise between two competing and not-completely-reconcilable objectives: the expeditious administration of bankruptcy cases, on the one hand, versus the assurance that personal injury tort claims are afforded the same level of judicial scrutiny in bankruptcy as occurs in the non-bankruptcy context. More specifically, perhaps Congress was responding to the Johns-Manville bankruptcy, which witnessed the wholesale valuation of hundreds of thousands of asbestos-related personal injury and wrongful death claims via the shortcut of estimation. See In re Dow Corning Corp., 211 B.R. 545, 569 (Bankr.E.D.Mich.1997) (The estimation of the aggregate value of tort claims can have the backdoor effect of \"estimation ... for purposes of distribution as well.''). If this was the reason, then, by enacting 28 U.S.C. § 157(b)(2)(B),(O), § 157(b)(5) and § 1411, Congress must have hoped to protect against repetition of that scene without eviscerating a bankruptcy court's ability to discriminate between claims entitled to trial (which are then tried elsewhere) and those not entitled to trial (which are summarily disallowed). . In In re Schepps Food Stores, Inc., 169 B.R. 374, 377 n. 2 (Bankr.S.D.Tex.1994), however, the court stated that if the debtor’s request had been based on a \"provisionf ] of the Bankruptcy Code or Rules, such as missing a bar date,” then such proceeding would be core and within bankruptcy court jurisdiction. This latter Statement contradicts the court’s contention" }, { "docid": "18510479", "title": "", "text": "Support for my conclusion is found in two eases. The first is a decision by Chief Judge Brieant of the Southern District of New York who stated in In re Cohen, 107 B.R. 453, 455 (S.D.N.Y.1989) as follows: This tort claim for a statutory violation of a New York State anti-discrimination law does not fall within the above quoted federal statutory exclusion. This is not a claim for a “personal injury tort” in the traditional, plain-meaning sense of those words, such as slip and fall, or a psychiatric impairment beyond mere shame and humiliation. This opinion was followed in In re Vinci, 108 B.R. 439, 442 (Bankr.S.D.N.Y.1989), where the court said the ruling in Cohen meant “a tort without trauma or bodily injury is not within the statutory exception for a personal injury claim.” As a practical matter, it makes sense that claims for minor emotional distress not the focus of a complaint not be transferred to the district court. Otherwise, alleged incidental damages such as those present in this ease largely concerning economic damages would too easily get transferred and too readily remove the jurisdiction of the court designated to try bankruptcy related issues. See In re Littles, 75 B.R. 240 (Bankr.E.D.Pa.1987). Defendant relies on two cases purportedly to the contrary. The first is Matter of Poole, 63 B.R. 527 (Bankr.N.D.Ala.1986). That case involved a claim for emotional harm caused by the desecration of graves. However, the Court in that case was only concerned with the power of a bankruptcy court to estimate personal injury tort claims for purposes of distribution, and nobody now questions that power. See, e.g., In re Johns Manville Corp., 45 B.R. 827 (S.D.N.Y.1984). The only real authority challenging my conclusion is the case of In re Boyer, 93 B.R. 313 (Bankr.N.D.N.Y.1988). In that case, at issue was a civil rights complaint where “the gravamen of his grievances appear to be based on the loss of his professional esteem, name and peace of mind”. Id. at 317-18. (emphasis added) The Court held that this was a “personal injury-tort.” I believe the Boyer case can be" }, { "docid": "6543543", "title": "", "text": "they are contingent or un-liquidated personal injury tort claims. The debtors argue that the claims are not personal injury tort claims within the intent of Congress when it enacted section 157(b)(2)(B). It is necessary to resolve that issue first. It is probable that Congress never considered claims for the desecration of graves and dead bodies one way or the other when it excepted “personal injury tort and wrongful death claims” from the bankruptcy court’s jurisdiction in section 157(b)(2)(B) and (0) , and section 157(b)(5) . Note also section 157(b)(4) which excepts non-core proceedings (i.e., personal injury tort and wrongful death claims) from the mandatory abstention provisions of 28 U.S.C. § 1334(c)(2). If Congress had intended to restrict “personal injury tort ... claims” to those which damaged the bodies of living claimants, it could have done as it did in section 522(d)(ll)(D) of the Bankruptcy Code where it exempted to the debtor up to $7,500 “on account of personal bodily injury....” It is thus clear that Congress knew how to be restrictive in its choice of language concerning personal injury torts. When Congress chose the unrestricted description of “personal injury-tort ... claims”, it must have intended that these words be interpreted broadly. So read, they encompass the civil actions brought by Movants and the plaintiffs in the five other similar cases. There is no question that the two automobile collision cases are personal injury tort claims, and the other case is at least partially tort based. Unfortunately, this does not end the inquiry into Congressional intent in enacting section 157(b)(2)(B). There are several departures from the plain language of section 157(b)(2)(B) found in the legislative history of that section. In an analysis offered by Senator DeConcini in the Congressional Record-Senate, S 7622 (daily ed. June 19, 1984), reprinted in 9 Bankr.Serv. (L.Ed.) 73 (Supp. Apr. 1986), the following appears: 2. Section 157(b)(2)(B). This provision provides that core proceedings include allowance or disallowance of claims against the estate or exemptions from property of the estate, but do not include liquidation or estimation of contingent or unliquidated personal injury tort claims against the" }, { "docid": "11588052", "title": "", "text": "different approaches to determine whether a particular claim constitutes a “personal injury tort” claim. Id. at 571-75 (collecting cases). The “narrow view” requires a trauma or bodily injury or psychiatric impairment beyond mere shame or humiliation to meet the definition of “personal injury tort.” Id. at 571-72 (citations omitted); accord Perino v. Cohen (In re Cohen), 107 B.R. 453, 455 (S.D.N.Y. 1989) (stating that a claim based on a violation of New York’s anti-discrimination law “is not a claim for a ‘personal injury tort’ in the traditional, plain-meaning sense of those words, such as a slip and fall, or a psychiatric impairment beyond mere shame and humiliation,” and that “[tjhere is no legislative history that would bring this plaintiffs claim for a tort without trauma within the statutory exception for a personal injury tort.”). The broad view interprets “personal injury tort” to “embrace! ] a broad category of private or civil wrongs or injuries for which a court provides a remedy in the form of an action for damages, and include!] damage to an individual’s person and any invasion of personal rights, such as libel, slander ' and mental suffering.” Residential Capital, 536 B.R. at 572 (quoting Boyer v. Balanojf (In re Boyer), 93 B.R. 313, 317-18 (Bankr. N.D.N.Y. 1988) and collecting cases). Finally, under the intermediate,, “hybrid” approach, a bankruptcy court may adjudicate claims bearing the “earmarks of a financial, business or property tort claim, or a contract claim” even where those claims might appear to be “personal injury torts” under the broad view. Id. (quoting Stranz v. Ice Cream Liquidation, Inc. (In re Ice Cream Liquidation, Inc.), 281 B.R. 154, 161 (Bankr. D. Conn. 2002) and citing, inter alia, Adelson v. Smith (In re Smith), 389 B.R. 902, 908-13 (Bankr. D. Nev. 2008)). Given the absence of a statutory definition and the facial reasonableness of each interpretation, the phrase “personal injury tort,” as used in 28 U.S.C. § 157(b)(2)(B) and (b)(5), is ambiguous. Turning first to the canons of statutory interpretation, and specifically the canon noscitur a sociis, the Court concludes that the narrow interpretation, which requires trauma" }, { "docid": "11588058", "title": "", "text": "become involved” with the debtor, and “should have the protection of having any final order entered by an article III district court judge.” Id. Senator DeConcini referred to “claims arising from automobile accidents” as examples of the personal injury tort claims he had in mind, id. at 17,155, and Representative Kastenmeier, the ranking majority member on the House Judiciary Committee and one of the floor managers, described the exceptions to core jurisdiction under the 1984 Amendments, including the personal injury tort/wrongful death exception, as a “narrow category of cases.” 130 Cong. Reg 20,227-28 (1984). “Where Congress adopts language urged by a witness, it may be assumed that Congress also adopted the intent voiced by the witness.” In re Teligent, Inc., 268 B.R. 723, 737 (Bankr. S.D.N.Y. 2001) (citations omitted); see also 2A Sutherland § 48:10 at 596-97 (“Federal courts frequently look to committee member and interested-party statements made during committee hearings about conditions requiring legislative attention as an aid to determine legislative intent. Because committee hearing records are distributed to Congress members, courts assume they had knowledge of these statements and the evils they described, and that passage of. a proposed bill is some evidence of their intent to remedy these evils.” (footnote omitted)). The representatives of the Asbestos Litigation Group testified before the Senate about their concerns resulting from their experience in the Johns-Man-ville bankruptcy, about a bankruptcy court’s power to estimate and liquidate personal injury and wrongful death claims, and the denial of the right to try those claims before a jury. Those specific concerns—and no others—were addressed by exempting personal injury tort and wrongful death claims from the otherwise broad definition of core claims in 28 U.S.C. § 157(b), singling them out from the provisions of mandatory abstention, 28 U.S.C. § 157(b)(4), requiring them to be heard in an Article III court, 28 U.S.C. § 157(d)(5) and preserving the right to trial by jury. 28 U.S.C. § 1411(a). Although Congress did not intend to limit personal injury tort claims to asbestos claims—Senator De-Concini referred to the example of an automobile accident—the exception was intended to be narrow" }, { "docid": "18510478", "title": "", "text": "corporate assets, and failed to liquidate the corporate assets. The damages are the same as those alleged in Counts I and II. 28 U.S.C. § 157(b)(5) This section reads: (5) The district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose, as determined by the district court in which the bankruptcy case is pending. The parties have raised the issue whether this is a “personal injury tort” action within the meaning of the statute. Besides the allegations in the complaint, plaintiff has stated in his pretrial statement that his damages include “lost reputation, humiliation, stress, loss of sleep, and impaired enjoyment of life.” Plaintiff has also disclosed in its disclosure of expert witnesses that he intends to call a medical doctor to testify about the “fatigue ety/stress of the plaintiff.” and anxi- I believe these alleged injuries are insufficient to transfer jurisdiction to the district court. Support for my conclusion is found in two eases. The first is a decision by Chief Judge Brieant of the Southern District of New York who stated in In re Cohen, 107 B.R. 453, 455 (S.D.N.Y.1989) as follows: This tort claim for a statutory violation of a New York State anti-discrimination law does not fall within the above quoted federal statutory exclusion. This is not a claim for a “personal injury tort” in the traditional, plain-meaning sense of those words, such as slip and fall, or a psychiatric impairment beyond mere shame and humiliation. This opinion was followed in In re Vinci, 108 B.R. 439, 442 (Bankr.S.D.N.Y.1989), where the court said the ruling in Cohen meant “a tort without trauma or bodily injury is not within the statutory exception for a personal injury claim.” As a practical matter, it makes sense that claims for minor emotional distress not the focus of a complaint not be transferred to the district court. Otherwise, alleged incidental damages such as those present in this ease largely concerning economic damages" }, { "docid": "10537353", "title": "", "text": "property of the estate, and estimation of claims or interest for the purposes of confirming a plan under chapter 11 or 13 of title 11 [11 USCS §§ 1101 et seq. or 1301 et seq.] but not the liquidation or estimation of contingent or unliquidated personal injury tort or wrongful death claims against the estate for purposes of distribution in a case under title 11 [11 USCS §§ 1 et seq.]; (O) other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship, except personal injury tort or wrongful death claims. 28 U.S.C. § 157(b)(3) provides that the bankruptcy judge shall determine whether a proceeding is a core proceeding or a related proceeding. The determination should not be made solely on the basis that the resolution of the proceeding may be affected by state law. The allegations contained in the original complaint in this proceeding could easily fall within the purview of either 28 U.S.C. § 157(b)(2)(B) or 28 U.S.C. § 157(b)(2)(0), with the resulting determination that this proceeding is a core proceeding. However, all that glitters is not gold, and all proceedings which could literally be determined as core proceedings under the various statutory definitions, are not necessarily core proceedings. Since the drafters of the Bankruptcy Amendments and the Federal Judgeship Act of 1984 were not kind enough to include a definition of related proceedings or non-core proceedings, one must look to the genesis of this legislation to find the answer as to whether the bankruptcy court is permitted to enter a final order in a proceeding such as this, or whether this court can only submit findings of fact and conclusions of law to the district court for the entry of a final order as directed by 28 U.S.C. § 157(c)(1). As most everyone knows, the Bankruptcy Amendments and Federal Judgeship Act of 1984 was a belated response to the United States Supreme Court decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), which" }, { "docid": "11588051", "title": "", "text": "”). Where the statute’s language and context fail to resolve the ambiguity, a court may resort, in order, to canons of statutory construction and legislative history to aid in its interpretation. United States v. Colasuonno, 697 F.3d 164, 173 (2d Cir. 2012); Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 423 (2d Cir. 2005). The phrase “personal injury tort or wrongful death claims,” or some variation, was introduced into title 28 under the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, 98 Stat. 333 (1984) (the “1984 Amendments”), and appears in several provisions. See 28 U.S.C. §§ 157(b)(2)(B) & (O), 157(b)(5), 1411(a) (addressing the right to trial by jury with regard to a personal injury or wrongful death claim). However, title 28 does not define “personal injury” or “personal injury tort,” and the Second Circuit has not construed these terms as used in the cited sections. See In re Residential Capital, LLC, 536 B.R. 566, 571 (Bankr. S.D.N.Y. 2015). Lower courts in the Second Circuit and elsewhere have adopted different approaches to determine whether a particular claim constitutes a “personal injury tort” claim. Id. at 571-75 (collecting cases). The “narrow view” requires a trauma or bodily injury or psychiatric impairment beyond mere shame or humiliation to meet the definition of “personal injury tort.” Id. at 571-72 (citations omitted); accord Perino v. Cohen (In re Cohen), 107 B.R. 453, 455 (S.D.N.Y. 1989) (stating that a claim based on a violation of New York’s anti-discrimination law “is not a claim for a ‘personal injury tort’ in the traditional, plain-meaning sense of those words, such as a slip and fall, or a psychiatric impairment beyond mere shame and humiliation,” and that “[tjhere is no legislative history that would bring this plaintiffs claim for a tort without trauma within the statutory exception for a personal injury tort.”). The broad view interprets “personal injury tort” to “embrace! ] a broad category of private or civil wrongs or injuries for which a court provides a remedy in the form of an action for damages, and include!] damage to an individual’s" } ]

[ { "docid": "22377958", "title": "", "text": "as the loan fund guarantor in Arizona. Governor Symington filed a motion to dismiss, as did USAF. Parks filed a motion for partial summary judgment. On January 25, 1993, the district court held a hearing on the motions to dismiss, at which time it orally granted them. In dismissing the complaint, the court found that the Higher Education Act (HEA) does not provide a private right of action to parties in Parks’ position. It also ruled that no action or conduct complained of had taken place under color of state law. It did not directly address the § 1981 claim. The district court filed its final order granting the motions to dismiss with prejudice on September 1, 1993, and this appeal followed. JURISDICTION AND STANDARD OF REVIEW The district court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. A dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is a ruling on a question of law and as such is reviewed de novo. Everest & Jennings, Inc. v. American Motorists Ins. Co., 23 F.3d 226, 228 (9th Cir.1994). We take all allegations of material fact as true and construe them in the light most favorable to the nonmoving party. Id. A complaint should not be dismissed unless a plaintiff could prove no set of facts in support of his claim that would entitle him to relief. Id. When a plaintiff has attached various exhibits to the complaint, those exhibits may be considered in determining whether dismissal was proper without converting the motion to one for summary judgment. Cooper v. Bell, 628 F.2d 1208, 1210 n. 2 (9th Cir.1980). DISCUSSION A. Private Right of Action Under the Higher Education Act There is no express right of action under the HEA except for suits brought by or against the Secretary of Education. See 20 U.S.C. § 1082(a)(2). The district court found that no private right of action for educational institutions to sue loan guarantors was implied in the statute. We agree. In determining whether a federal statute confers" } ]

[ { "docid": "5592845", "title": "", "text": "the Payne affidavit submitted in opposition to defendants’ motion to dismiss makes it clear that waste associated with defendants contained hazardous substances. However, on a motion to dismiss pursuant to rule 12(b)(6), we cannot look outside the pleadings. LaBounty, 933 F.2d at 123. Moving defendants argue that the amended complaint was drafted to allow plaintiffs to back away from the original complaint’s straight-forward allegation that moving defendants arranged for the transport or disposal of hazardous substances. Ironically, at oral argument, plaintiffs’ attorney stated that the amended complaint was not an attempt to soften allegations against defendants. Rather, he claimed it was intended to provide more specificity to the complaint by replacing a conclusory statement such as that each defendant “arranged for' the disposal or treatment, or arranged with a transporter for transport or disposal or treatment, of Hazardous Substances owned or possessed by such defendant.” In light of plaintiffs’ contentions 'that their amended complaint was meant to allege, that hazardous waste was contained in defendants’ solid waste, we give plaintiffs twenty days to amend their § 107 claim. II. Count Two: CERCLA Contribution Section 113(f)(1) of CERCLA, 42 U.S.C. § 9613(f)(1) creates a private right of action by which “[a]ny person may seek contribution from any other person who is liable or potentially liable under section [107, 42 U.S.C. §] 9607.” The contribution provision codifies the federal common law principle that contribution can only be obtained from parties liable under governing law. Kelley v. Arco Indust. Corp., 739 F.Supp. 354, 356-57 (W.D.Mich.1990). Thus, a party cannot be liable for contribution unless it is a responsible party as defined by § 107. Id. at 357. Because, as previously discussed, plaintiffs have failed to state that defendants are liable parties under § 107, plaintiffs have also failed to state a claim for contribution under § 113. However, in light of the considerations discussed above, plaintiffs are also given twenty days to amend their § 113 claim. III. Count Three: State Negligence Claim The amended complaint alleges “that the defendants are liable for negligence in tort to plaintiffs for injuries suffered or to" }, { "docid": "14282736", "title": "", "text": "contamination of the Property and defendant’s alleged failure to assure plaintiff that the Property will be completely cleaned up by December 31, 1993 (the date of the expiration of the Lease), plaintiff contends that it has begun to incur costs investigating, monitoring, assessing, evaluating and responding to the release and/or threat of release of hazardous substances on the Property, and that it will continue to incur costs necessary to clean up soil and groundwater contamination. Plaintiff’s Memorandum at 6. Accordingly, plaintiff in this action seeks a declaratory judgment and reimbursement of response costs pursuant to CERCLA (First Count). The re maining eight counts of the Complaint are based on a variety of state common law and statutory theories: reimbursement of costs pursuant to Conn.Gen.Stat. § 22a-452 (Second Count); breach of contract (Third Count); specific performance (Fourth Count); waste (Fifth Count); nuisance and negligent nuisance (Sixth and Seventh Counts); strict liability in tort for engaging in abnormally dangerous activities (Eighth Count); and violation of the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn.Gen.Stat. § 42-110a, et seq. (Ninth Count). Defendant’s motion seeks dismissal of the entire Complaint. Defendant argues that the First Count should be dismissed because no justiciable dispute exists between the parties as to CERCLA liability and plaintiff has alleged no reimbursable “response costs” as defined by CERCLA. Defendant contends that the remaining eight counts should be dismissed because (1) each of the state claims either “raises a novel or complex issue” or “substantially predominates” over the federal claims, such that the collection of state claims overwhelms even the most generous interpretation of the federal component of the action, see 28 U.S.C. § 1367(c)(1) & (2), or because (2) none of the state law claims state a claim upon which relief can be granted. DISCUSSION When considering a motion to dismiss the court accepts all factual allegations in the complaint as true and draws inferences from these allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Corcoran v. American Plan Corp., 886 F.2d 16, 17" }, { "docid": "2453601", "title": "", "text": "that he was denied notice and an opportunity to be heard, and as a result, the defendants’ public statements regarding his termination have made it impossible for him to secure a new job as a college basketball coach. Campanelli seeks damages for mental suffering, emotional distress, and loss of income due to his inability to get another job. In dismissing this action under Federal Rule of Civil Procedure 12(b)(6), the district court held that Campanelli failed to allege facts that could prove three of the required elements of a Roth claim. First, the court held that Campanelli failed to allege that the defendants’ statements stigmatized him within the meaning of Roth. Second, the court held that Campanelli failed to allege that the defendants’ statements were made “in the course of’ his termination, as required by Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 1165, 47 L.Ed.2d 405 (1976). Finally, the court held that Campanelli failed to allege that the defendants’ statements were “substantially false,” as required under Codd v. Velger, 429 U.S. 624, 628, 97 S.Ct. 882, 884, 51 L.Ed.2d 92 (1977). We review the district court’s order of dismissal under Rule 12(b)(6) de novo. Stone v. Travelers Corp., 58 F.3d 434, 436-37 (9th Cir.1995). Our review is limited to the contents of Campanelli’s complaint. Argabright v. United States, 35 F.3d 472, 474 (9th Cir.1994). We accept all of Campanelli’s allegations of material fact as true and construe them in the light most favorable to him. National Wildlife Fed’n v. Espy, 45 F.3d 1337, 1340 (9th Cir.1995). We will affirm the district court’s order of dismissal only if it appears “beyond doubt” that Campanelli can prove no set of facts in support of his claim that would entitle him to relief. Mountain High Knitting, Inc. v. Reno, 51 F.3d 216, 218 (9th Cir.1995). A In support of their Rule 12(b)(6) motion to dismiss, the defendants maintain that Campanelli’s allegations do not satisfy Roth’s stigma requirement. They argue Campanelli alleges only “that the defendants dismissed him because of a perception that his admitted emotional outbursts rendered him ineffective with" }, { "docid": "7883295", "title": "", "text": "MOTION TO DISMISS For purposes of a motion to dismiss, a complaint is construed in a light most favorable to the plaintiff and all properly pleaded factual allegations are taken as true. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848-1849, 23 L.Ed.2d 404 (1969). A motion to dismiss 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. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). A. Defendants’ motion to dismiss Eco-dyne’s first cause of action under § 9607(a)(2). 1. The motion hinges on the definition of the word “disposal”. Ecodyne’s first cause of action against defendants is brought under 42 U.S.C. § 9607(a)(2), which provides, \"... any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, ... from which there is a release, or threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable [for costs]. See 42 U.S.C.A. § 9607(a)(2) (West 1983). In nuce, defendants seek to dismiss this claim by contending that they did not own or operate the property at any time when the disposal of chromium occurred. Plaintiffs contend that defendants are liable because the general movement and migration of the chromium on the property at the time defendants owned it is, by definition, a disposal. Thus, the outcome of this portion of defendants’ motion hinges on the meaning of the term “disposal” as it appears in § 9607(a)(2). The term “disposal” under CERCLA is defined by § 1004 of the Solid Waste Disposal Act (“SWDA”), 42 U.S.C. § 6903. See 42 U.S.C.A. § 9601(29) (West 1983). Pursuant to § 6903(3), the term disposal means, ... the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment" }, { "docid": "13624814", "title": "", "text": "of Regulation S-K, 17 C.F.R. § 229.303(a)(l)-(3), promulgated by the SEC, and § 202.05 of the New York Stock Exchange (“NYSE”) Manual. SK-303 imposes a duty to disclose “known trends or any known demands, commitments, events, or uncertainties” in a company’s periodic report filed with the SEC. Similarly, § 202.05 of the NYSE Manual encourages companies listed on the NYSE to “release quickly to the public any news or information which might reasonably be expected to materially affect the market for its securities.” Moreover, Plaintiffs claim that L-P’s financial statements overstated the financial health of the Company in violation of 10b-5 because L-P did not comply with Generally Accepted Accounting Principles (“GAAP”) SFAS No. 5 in considering future warranty claims. In response, all Defendants move to dismiss Plaintiffs’ Complaint. STANDARD A Rule 12(b)(6) motion to dismiss for failure to state a claim can be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995); Mountain High Knitting, Inc. v. Reno, 51 F.3d 216, 218 (9th Cir.1995). All allegations of material fact are taken as trae and construed in the light most favorable to the plaintiff. In Re Wells Fargo See. Litig., 12 F.3d 922, 925 (9th Cir.1998), cert. denied, — U.S. -, 115 S.Ct. 295, 130 L.Ed.2d 209 (1994). In addition, allegations of a securities fraud action must meet the particularity requirements of Fed.R.Civ.Pro. 9(b). Fecht v. Price Company, 70 F.3d 1078, 1082 (9th Cir.1995). DISCUSSION I. Motions To Dismiss A. Defendant L-P’s Motion to Dismiss 1. Arguments L-P argues that Plaintiffs’ case should be dismissed because Plaintiffs cannot show that L-P violated its duty to disclose material information under Rule 10b-5. Despite Plaintiffs’ allegations that L-P violated § 202.5 of the NYSE Manual and SK-303 of SEC Regulations, L-P explains that Plaintiff must show that a duty to disclose independently exists under § 10(b). L-P had no duty to either disclose estimates of future litigation or admit to corporate" }, { "docid": "4254617", "title": "", "text": "providing that a tortfeasor shall be liable for damages which are the proximate result of his tort.” Leeper v. Leeper, 114 N.H. 294, 298, 319 A.2d 626, 629 (1974) (quoting Restatement (Second) of Conflict of Laws § 36, comment c (1971)). The Court therefore rejects defendant’s contention that it is not subject to jurisdiction here. 3. CERCLA a. Contribution Defendant attempts to limit its liability for the costs of removing hazardous waste by arguing that plaintiff is liable for a portion of the costs and that defendant cannot be compelled to pay the costs for Which plaintiff is responsible. Thus, defendant argues that the CERCLA claim “for all response costs ... under a theory of joint and several liability should be dismissed.” Memorandum of Law in Support of Defendant’s Motion to Dismiss at 7. When reviewing a Rule 12(b)(6) motion to dismiss, the Court’s consideration is limited to the allegations contained in the complaint, Litton Indus. v. Colon, 587 F.2d 70, 74 (1st Cir.1978), and those allegations are to be “construed in the light most favorable to plaintiff and taken as admitted, with dismissal to be ordered only if the plaintiff is not entitled to relief under any set of facts he could prove.” Chasan v. Village Dist. of Eastman, 572 F.Supp. 578, 579 (D.N.H.1983) (and cases therein cited), aff'd without opinion, 745 F.2d 43 (1984); see also Knight v. Mills, 836 F.2d 659, 664 (1st Cir.1987). Plaintiff here asserts that Central Screw and Microdot discharged the hazardous waste which must be eliminated from his property. Assuming he can sustain that assertion, Central Screw and Microdot “fall[] neatly within that class of persons section 107(a)(2) was meant to reach — prior owners and operators.” Southland Corp. v. Ashland Oil, Inc., 696 F.Supp. 994, 999 (D.N.H.1989). Moreover, if plaintiff can show that he is an “innocent landowner” as recognized in 42 U.S.C. § 9607, defendant will be liable for all costs, as plaintiff contends. Defendant’s first attempt to eliminate or narrow the CERCLA claims therefore fails. b. National Contingency Plan To recover under the CERCLA statute, a private plaintiff must show" }, { "docid": "14269258", "title": "", "text": "contingency plan.” 42 U.S.C. § 9607(a)(4)(B). In 1986, Congress added § 113(f) to CERCLA, which provides that “[a]ny person may seek contribution from any other person who is liable or potentially liable under [§ 107(a) ], during or following any civil action under [§ 106] or under [§ 107(a) ].” 42 U.S.C. § 9613(f)(1). It further provides that parties that settle with the United States may likewise seek contribution from non-parties to the settlement. Id. § 9613(f)(3)(B). In Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 125 S.Ct. 577,160 L.Ed.2d 548 (2004) (“Aviall”), the Supreme Court held that in the absence of a preexisting civil action against a party, a PRP may not bring a contribution claim against that party for cleanup costs under § 113(f)(1). Id. at 583. However, the Aviall Court specifically declined to address the issue of whether a PRP could sue for contribution under § 107(a) under similar circumstances. Id. at 586. ANALYSIS I. Standard of Review Defendant has moved to dismiss the complaint for failure to state a claim. Un der Fed.R.Civ.P. 12(b)(6), dismissal is appropriate only where a defendant has “show[n] ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” In re Swine Flu Immunization Prods. Liab. Litig., 880 F.2d 1439, 1442 (D.C.Cir.1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The allegations in plaintiffs complaint are presumed true for purposes of a 12(b)(6) motion, and all reasonable factual inferences should be construed in plaintiffs favor. Maljack Prods., Inc. v. MPAA, 52 F.3d 373, 375 (D.C.Cir.1995); Phillips v. BOP, 591 F.2d 966, 968 (D.C.Cir.1979). II. A PRP May Seek Indemnification From Other PRPs Pursuant to § 107(a) Where § 113(f) Recovery is Unavailable Defendant claims that § 113(f) provides the sole avenue for PRPs to recover response costs, asserting that the issue is settled in this Court and in numerous courts of appeals. (Def.’s Mot. at 9.) However, the question whether a PRP may seek to recover its costs via §" }, { "docid": "2719880", "title": "", "text": "finally hired private contractors to remove the asbestos and notified NYCHA and Born that it had done so. The work was performed during May through July 1990. Plaintiff claims that Born and NYCHA are liable for the costs of investigation, and clean-up and replacement of the ACM (response costs) under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.A. § 9601, et seq. (1983 & Supp.1992) [hereinafter CERCLA], also known as the Superfund. Plaintiff has also asserted claims for intentional and negligent private nuisance, nuisance based upon ultrahazardous activity, trespass, restitution and indemnity, breach of covenants, and a claim based on a violation of the City building code. Defendants move to dismiss these claims. Born seeks indemnification or contribution from the third-party defendants. Third-party defendants move to dismiss these claims. Travelodge seeks contribution or indemnification from defendants and third-party defendants. Defendant NYCHA moves to dismiss these claims. Discussion “[A] complaint should not be dismissed for failure to state a claim unless it appears that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). This standard applies to motions to dismiss under both FED.R.CIV.PRO. 12(b)(6) and 12(c). New York v. SCA Servs., Inc., 754 F.Supp. 995 (S.D.N.Y.1991). I. PLAINTIFF’S CLAIMS A. CERCLA To withstand the motion to dismiss its CERCLA claims, plaintiff must have alleged the five elements of a prima facie claim which are: (1) defendant fits one of four classes of responsible parties outlined in § 9607(a); (2) the site is a facility; (3) there is a release or threatened release of hazardous substances at the facility; (4) the plaintiff incurred costs responding to the release or threatened release; and (5) the costs and response actions conform to the National Contingency Plan set up under the Act and administered by the EPA in order to prioritize hazardous substance release sites throughout the nation. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir.1992). As a preliminary matter it is important to note" }, { "docid": "22312369", "title": "", "text": "his complaints. Hicks’ complaint alleges a Bivens claim against Dr. Small for violation of his First and Fifth Amendment rights and a state tort claim of outrage, or intentional infliction of emotional distress. Dr. Small moved to dismiss on the grounds that the district court lacked subject matter jurisdiction over the Bivens claims and that the state tort claim was precluded by immunity. The District Court of Nevada: (1) converted Dr. Small’s Federal Rules of Civil Procedure 12(b)(1) motion to dismiss for lack of subject matter jurisdiction into a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted; (2) granted Dr. Small’s Rule 12(b)(6) motion with respect to Hicks’ Bivens claims against Dr. Small for alleged violations of his First and Fifth Amendment rights; and (3) dismissed Hicks’ state tort claim for lack of subject matter jurisdiction. Hicks v. Small, 842 F.Supp. 407, 408-14 (D.Nev.1993). II. A dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is reviewed de novo. Everest & Jennings, Inc. v. American Motorists Ins. Co., 23 F.3d 226, 228 (9th Cir.1994); Oscar v. University Students Cooperative Ass’n, 965 F.2d 783, 785 (9th Cir.) (en banc), cert. denied, — U.S. -, 113 S.Ct. 655, 121 L.Ed.2d 581 (1992). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Love v. United States, 915 F.2d 1242, 1245 (9th Cir.1990). A complaint should not be dismissed “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.” Id. (internal quotations and citations omitted). The existence of subject matter jurisdiction is a question of law reviewed de novo. Nike, Inc. v. Comercial Iberica De Exclusivas Deportivas, S.A., 20 F.3d 987, 990 (9th Cir.1994); Reebok Int’l, Ltd. v. Marnar tech Enters., Inc., 970 F.2d 552, 554 (9th Cir.1992). The district court’s conclusion that it lacks subject matter jurisdiction is reviewed de novo. Carpenter v. Department of Transp., 13 F.3d" }, { "docid": "10972079", "title": "", "text": "not be dismissed unless it appears beyond doubt that the plaintiffs can prove no set of facts in support of their CERCLA and RCRA claims that would entitle them to relief under those acts. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). COUNT ONE — CERCLA Count One of plaintiffs’ complaint alleges that defendant Inmont is liable to the plaintiffs under section 107 of the Comprehensive Environmental.Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9607(a)(3), which imposes liability on any person who arranged for the disposal, treatment, or transport of any hazardous substance which is released, or is threatened to be released, and causes the incurrence of response costs. CERCLA was enacted to fill gaps left by the earlier Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. in dealing with abandoned dump sites, in requiring notification of the existence of inactive sites, and in providing funds for state hazardous waste programs. S.Rep. No. 848, 96th Cong., 2d Sess. 11, H.R.Rep. No. 1016 (Part I), 96th Cong., 2d Sess. 25, reprinted in 1980 U.S.Code Cong. & Ad.News 6119, 6125. In addition to imposing liability on generators and transporters of hazardous wastes and on operators and owners of dump sites, CERCLA also requires notification of the existence of dump sites and the occurrence of releases from them, it affords the EPA broad powers in responding to releases and threatened releases, and it establishes and regulates a trust fund to pay for necessary response actions. The defendant’s motion challenges plaintiffs’ claim under CERCLA on the grounds that the costs allegedly incurred are not response costs within the meaning of the statute, and that no private right of action exists for the recovery of any damages other than response costs. Who Can Sue In its original memorandum in support of its motion, defendant alleged that private parties such as these plaintiffs have no rights of action under CERCLA; in its reply memorandum and at oral argument, however, defendant conceded that section 9607(a)(4)(B) indeed authorizes recovery by “any other person”" }, { "docid": "10718882", "title": "", "text": "plaintiffs must also demonstrate that they themselves were harmed; that is, that they suffered a specific, separate, and direct injury to themselves caused by defendant’s actions. See Niemeier, 2000 WL 1222207 at *3-4. In its present motion to dismiss, defendant appears to accept that the plaintiff parents meet the general Article III standing requirements. Defendant’s argument focuses, instead, on whether the plaintiff parents’ alleged injuries satisfy the prudential standing considerations of “separate” and “direct” injury. STANDARD A Rule 12(b)(6) motion to dismiss for failure to state a claim 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.” Gilligan v. Jamco Development Corp., 108 F.3d 246, 248 (9th Cir.1997)(quoting Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995)); see also Mountain High Knitting, Inc. v. Reno, 51 F.3d 216, 218 (9th Cir.1995). The court must treat all facts alleged in the complaint as true. Parks School of Business, Inc., 51 F.3d at 1484. All doubts are resolved in favor of the nonmoving party. Keams v. Tempe Technical Institute, 39 F.3d 222, 224 (9th Cir.1994). DISCUSSION Both sides analogize the factual circumstances in the few reported cases to the facts alleged in this case and conclude, not surprisingly, that the facts favor their respective positions. Plaintiffs’ allegations concerning them injuries, which they claim to be direct injuries to them caused by defendant’s alleged refusal to allow their experts in the special education classrooms, may be summarized as follows: 1. They were denied the benefits of defendant’s services by reason of their children’s disabilities (Second Amended Complaint (“Complaint”), ¶¶ 36(b),(f), and (j), and 50(b), (f), and (g)); 2. They were excluded from participation in defendant’s services solely by reason of their children’s disabilities (Complaint, ¶¶ 36(d),(h), and (l), and 50(d), (h), and (l)); 3. As a result of the above, they suffered injury caused by defendant’s discrimination solely because of their association with their disabled children, in the form of financial loss, anxiety, humiliation, and severe emotional distress (Complaint," }, { "docid": "22583906", "title": "", "text": "had polluted and were continuing to pollute their on-site water wells. They sought injunctive and monetary relief. In addition, they sought reimbursement from defendants for response costs which were alleged to have been incurred as a result of “a release or threatened release of hazardous substances” from CCI. See 42 U.S.C. § 9607(a)(4)(B). The complaint also included claims under CERCLA for a declaratory judgment, future response costs, and contribution, pursuant to 42 U.S.C. § 9613(f)(1). Arguing that the case was barred by the Eleventh Amendment, appellees moved to dismiss for lack of subject matter jurisdiction. They also moved for summary judgment on the claim for response costs, arguing that the Eleventh Amendment prohibited recovery of monetary damages. The district court dismissed all claims, holding that the State and its agents were immune from suit under the Eleventh Amendment. In addition, the court granted appellees’ motion for summary judgment, holding that appellants were not entitled to response costs from the State or to potential contribution costs because such recovery would violate the State’s sovereign immunity. This appeal followed. DISCUSSION a) Citizen Suit We review de novo a dismissal pursuant to Fed.R.Civ.P. 12(c). See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994). In deciding a Rule 12(c) motion, we apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party. See id. We may dismiss the complaint only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In dismissing the action, the district court held that Congress did not, by authorizing environmental citizen suits, intend to abrogate the states’ sovereign immunity. It also concluded that the State of Connecticut did not waive its sovereign immunity as to plaintiffs’ CWA, RCRA, and CERCLA claims. We agree. The Eleventh Amendment provides that: “The Judicial power of the United States shall not" }, { "docid": "11304120", "title": "", "text": "Henebury and Hinson converted a cullet processor and truckloads of cullet belonging to All-waste, violating 18 U.S.C. § 1951, and 18 U.S.C. § 1952; and (9) with the proceeds of the above described activities, Defendants established San Diego Cullet Supply violating 18 U.S.C. § 1341, 18 U.S.C. § 1343, 18 U.S.C. § 1952, and 18 U.S.C. § 1962. Allwaste terminated Hecht on October 5, 1992. On February 3, 1993, Allwaste terminated the last of the Defendants. In April 1993, the Defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). On June 3, 1993, the district court heard the Motion. During the 12(b)(6) hearing, Allwaste asserted that it could allege facts to demonstrate that the predicate acts occurred for more than one year. Transcript 14:16-17, ER 36. On August 5, 1993, the court granted the Defendants’ motion and dismissed Allwaste’s complaint with prejudice on the ground that All-waste did not plead continuity of alleged criminal activity, as required under RICO, 18 U.S.C. §§ 1962(c) and (d). ANALYSIS I. Continuity Requirement of a Valid RICO Claim We review de novo a dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Everest and Jennings v. American Motorists Ins. Co., 23 F.3d 226, 228 (9th Cir.1994). We limit our review to the contents of the complaint. Buckey v. Los Angeles, 968 F.2d 791, 794 (9th Cir.), cert. denied, - U.S. -, 113 S.Ct. 599, 121 L.Ed.2d 536 (1992). We construe all allegations of material fact in the light most favorable to the nonmoving party. Everest and Jennings, 23 F.3d at 229. We will not dismiss a complaint unless it appears beyond doubt that a plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Id. To prevail under RICO, a plaintiff must establish a “pattern of criminal activity”. 18 U.S.C. § 1962. At a minimum, a “pattern” requires that the predicate criminal acts be “related” and “continuous.” H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 2900-01, 106 L.Ed.2d 195 (1989). In" }, { "docid": "2453602", "title": "", "text": "628, 97 S.Ct. 882, 884, 51 L.Ed.2d 92 (1977). We review the district court’s order of dismissal under Rule 12(b)(6) de novo. Stone v. Travelers Corp., 58 F.3d 434, 436-37 (9th Cir.1995). Our review is limited to the contents of Campanelli’s complaint. Argabright v. United States, 35 F.3d 472, 474 (9th Cir.1994). We accept all of Campanelli’s allegations of material fact as true and construe them in the light most favorable to him. National Wildlife Fed’n v. Espy, 45 F.3d 1337, 1340 (9th Cir.1995). We will affirm the district court’s order of dismissal only if it appears “beyond doubt” that Campanelli can prove no set of facts in support of his claim that would entitle him to relief. Mountain High Knitting, Inc. v. Reno, 51 F.3d 216, 218 (9th Cir.1995). A In support of their Rule 12(b)(6) motion to dismiss, the defendants maintain that Campanelli’s allegations do not satisfy Roth’s stigma requirement. They argue Campanelli alleges only “that the defendants dismissed him because of a perception that his admitted emotional outbursts rendered him ineffective with players.” Appellees’ Br. at 8. Campanelli alleges that “[t]he charges made in the press by Boggan and Bockrath after [his termination] have placed a stigma upon [his] good name, reputation, honor and integrity that has foreclosed his freedom to take advantage of other employment opportunities as a college basketball coach.” First Amended Complaint (Compl.) ¶23. As a result, Campanelli alleges he has been unable to find employment as a college basketball coach, despite diligent efforts. He has been told on more than one occasion that the circumstances of his firing at Berkeley are the reason why it will be very difficult for Campanelli to find comparable employment. Compl. ¶ 18. In addition to making these general allegations, Campanelli points to specific statements made by the defendants to support his claim that the defendants stigmatized him. In claiming that the defendants’ statements rose to the level of imposing stigma, Campanelli alleges, inter alia, that: Bockrath publicly stated “the reason for Campanelli’s firing was verbal personal abuse”; Boggan told the press Campanelli “tore the kids down” and" }, { "docid": "13638409", "title": "", "text": "the contamination by extracting the contaminated soil from the excavation site and spreading it over uncontaminated areas of the property. The district court concluded that Ferry was not a person who could be held liable under CERCLA section 9607(a) and thus dismissed Catellus’s complaint for failure to state a claim on which relief could be granted. See Fed.R.Civ.P. 12(b)(6). This appeal followed. STANDARD OF REVIEW We review de novo a dismissal under Rule 12(b)(6) for failure to state a claim under. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533 (9th Cir.1984). We take all allegations of material facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff. Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir.1991). We will affirm a dismissal under Rule 12(b)(6) only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). DISCUSSION CERCLA was enacted with two primary purposes in mind. First, Congress intended to provide the federal government with the means to effectively control the spread of hazardous materials from inactive and abandoned waste disposal sites. Anspec Co., Inc. v. Johnson Controls, Inc., 922 F.2d 1240, 1247 (6th Cir.1991). Second, it intended to affix the ultimate cost of cleaning up these disposal sites to the parties responsible for the contamination. Id. We construe CERCLA liberally to achieve these goals. 3550 Stevens Creek Assoc. v. Barclays Bank of Cal., 915 F.2d 1355, 1363 (9th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2014, 114 L.Ed.2d 101 (1991). To prevail in an action for contribution under CERCLA, a plaintiff must show, among other things, that the defendant falls within one of four classes of persons subject to liability under 42 U.S.C. § 9607(a). See 42 U.S.C. § 9613(f)(1) (“[a]ny person may seek contribution from any other person who is liable or potentially liable under section 9607(a)”); Stevens Creek, 915 F.2d at 1358 (discussing the requirements for" }, { "docid": "22175290", "title": "", "text": "defendants are liable for the response costs incurred at the Aidex site pursuant to section 7003 of the Resource Conservation and Recovery Act (RCRA) because by virtue of their relationships with Aidex they “contributed to” the handling, storage, treatment, or disposal of hazardous wastes. Complaint paragraph 70. See 42 U.S.C. § 6973(a). Plaintiffs further allege that six of the eight companies are liable under section 9607(a)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), because by virtue of their relationships with Aidex they “arranged for” the disposal of hazardous substances. Complaint paragraph 52. See 42 U.S.C. § 9607(a)(3). The defendants have moved to dismiss the action under Fed.R.Civ.P. 12(b)(6), arguing that they contracted with Aidex for the processing of a valuable product, not the disposal of a waste, and that Aidex alone controlled the processes used in formulating their technical grade pesticides into commercial grade pesticides, as well as any waste disposal that resulted therefrom. The district court granted defendants’ motion under RCRA, holding the absence of an allegation that defendants had authority to control how Aidex handled or disposed of the wastes precluded recovery under section 7003. The court denied the motion under CERCLA, however, holding that principles of common law in conjunction with the liberal construction required under CERCLA could support liability under section 9607(a)(3). 699 F.Supp. 1384. We granted all parties leave to file interlocutory appeals, and the case is now before us for decision. For the reasons discussed below, we hold plaintiffs’ allegations are sufficient to withstand defendants’ motion to dismiss under both CERC-LA and RCRA, and, accordingly, we affirm the district court’s decision in part, reverse in part, and remand this case for further procéedings. I. STANDARD OF REVIEW We review the district court’s order under the well-established standards for deciding a motion to dismiss for failure to state a claim. See Fed.R.Civ.P. 12(b)(6). A complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that plaintiffs can prove no set of facts in support of their claim which would entitle them to relief. Conley v." }, { "docid": "17452982", "title": "", "text": "under the statutory scheme, must precede the latter. See Gussack Realty, 224 F.3d at 91. CERCLA “encouragefs] private parties to assume the financial responsibility of cleanup by allowing them to seek recovery from others.” FMC Corp. v. Aero Indus., Inc., 998 F.2d 842, 847 (10th Cir.1993). Specifically, CERCLA “provides two types of legal actions by which parties can recoup some or all of their costs associated with hazardous waste cleanup: cost recovery actions under § 107(a), 42 U.S.C. § 9607(a), and contribution actions under § 113(f), 42 U.S.C. § 9613(f).” United States v. Colorado & E. R.R. Co., 50 F.3d 1530, 1535 (10th Cir. 1995). To establish a prima facie case under § 107(a), a plaintiff must prove (1) the site is a facility, (2) defendant is a responsible person, (3) the release or threatened release of a hazardous substance has occurred, and (4) the release or threatened release caused the plaintiff to incur necessary response costs consistent with the National Contingency Plan (NCP). FMC, 998 F.2d at 845. In this case, Plaintiffs only asserted a cost-recovery claim under CERCLA § 107. We, unlike the district court, do not determine whether Plaintiffs are PRPs under § 107(a) and thus unable to assert a cost-recovery claim under the rule in this Circuit that a Plaintiff-PRP must proceed under the contribution provisions of CERCLA § 113(f) when the Plaintiff-PRP sues another PRP for response costs. See Morrison Enter, v. McShares, Inc., 302 F.3d 1127, 1133 (10th Cir.2002); Sun Co., Inc. v. Browning-Ferns, Inc:, 124 F.3d 1187, 1191 (10th Cir.1997); Colorado & E. R.R. Co., 50 F.3d at 1536. Instead, we avoid the difficult question of whether Plaintiffs are PRPs because Plaintiffs’ claim fails even assuming they are not PRPs and thus able to assert a cost-recovery claim under § 107(a). Plaintiffs’ cost-recovery claim fails because, as discussed below, they have not incurred any response costs that are necessary and consistent with the NCP. A. Under CERCLA § 107(a)(4)(B), a private party may recover “any ... necessary costs of response incurred ... .consistent with the national contingency plan.” 42 U.S.C. § 9607(a)(4)(B). A" }, { "docid": "751332", "title": "", "text": "do not establish that Allied is a “responsible party” or that the material involved is a “hazardous substance” under CERCLA, 42 U.S.C. §§ 9607(a), 9601(14). The standard to be applied in ruling on a motion to dismiss under Rule 12(b)(6) is well established. “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). All allegations in the complaint must be construed in favor of the plaintiff. De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir.1978), cert. denied, 441 U.S. 965, 99 S.Ct. 2416, 60 L.Ed.2d 1072 (1979). If plaintiffs complaint fairly puts defendant on notice as to what plaintiff’s claim is and the grounds upon which it rests, that is sufficient under Federal Rule of Civil Procedure 8(a). The liberal opportunity for discovery allows defendant to “disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues.” Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). Applying this standard, the court finds that, taking all the allegations, in the complaint and construing them in favor of plaintiff, plaintiff does state claims under CERCLA in its first and second causes of action. As argued in plaintiff’s opposition to this motion, the complaint does allege facts which would make Allied a “responsible party” under 42 U.S.C. section 9607(a). See Complaint at ¶¶ 9, 13. The complaint sufficiently alleges that the complained of materials are “hazardous substances.” See Complaint at ¶1¶ 12, 13 (alleging that the Navy determined the substances to be “hazardous”). Consequently, the first and second causes of action do not fail to state a claim upon which relief may be granted. Allied argues that plaintiff’s third cause of action for nuisance does not state a claim because it is not clear whether plaintiff relies on the theory of public or private" }, { "docid": "483574", "title": "", "text": "be the basis of a CERCLA cost recovery action. Id. at 1540. In so concluding, the court rejected the interpretation of section 101(14) found in Eagle-Picher Indus. v. United States E.P.A., 759 F.2d 922 (D.C.Cir.1985). The issue concerning the Bevill Amendment exclusion arises because a necessary predicate to liability for CERCLA response costs is the release or threatened release of a “hazardous substance” from a vessel, site, or facility. See 42 U.S.C. § 9607(a). The apparent purpose of RP’s second defense is to establish that, because “mining wastes” are excluded from CERCLA’s definition of hazardous substances, it may not be held liable for response costs. More precisely, RP alleges that plaintiffs have not stated a claim for which relief may be granted because without a release or threatened release of a hazardous substance there can be no response cost liability under CERCLA section 107. Plaintiffs’ motion for reconsideration rests on an erroneous suggestion made in the September 21 Memorandum and Order that 40 C.F.R. 261.4(b)(7) is an exclusive list of Bevill Amendment wastes. In fact, the cited list includes only mineral processing wastes and does not represent the universe of Bevill Amendment wastes, which is much broader. Bevill Amendment wastes include “solid wastes from the extraction, beneficiation, and processing of ores and minerals, including phosphate rock and overburden from the mining of uranium ore.” 42 U.S.C. § 6921(b)(3)(A)(ii). Plaintiffs believe that the court’s misunderstanding of the scope of the Bevill Amendment led it to discount their arguments concerning the subsequent legislative history of the Superfund Amendments and Reauthorization Act of 1986 (“SARA”) and its effect on CERCLA section 101(14). II. Standard of Review. A motion for reconsideration of an order denying summary judgment is appropriately brought under Federal Rule of Civil Procedure 59(e). Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir.1985). Such motions must be served no later than 10 days after entry of judgment. Fed.R.Civ.P. 59(e). An untimely motion for reconsideration is construed as a motion based on Federal Rule of Civil Procedure 60(b). Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1463 n. 35 (9th Cir.1992)." }, { "docid": "14282738", "title": "", "text": "(2d Cir.1989). Dismissal is not warranted unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Patton v. Dole, 806 F.2d 24, 30 (2d Cir.1986). I. Response Costs The First Count of the Complaint is a CERCLA claim for response costs under 42 U.S.C. § 9607(a)(4)(B) (“section 9607(a)(4)(B)”). Defendant contends that plaintiff’s claim for response costs must be dismissed because the allegations are not sufficiently particular and because there is no way to determine that such response costs are consistent with the National Consistency Plan, 40 C.F.R. Part 300 (“NCP”). Defendant’s Memorandum at 21-25. For the reasons stated below, defendant’s motion to dismiss the First Count on these grounds is denied. A. In order to state a claim for response costs under section 9607(a), Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir.1989); see also New York v. Shore Realty Corp., 759 F.2d 1032, 1043 (2d Cir.1985). In addition, the defendant must qualify as one of four categories of “covered persons” subject to CERCLA liability. Id.; Ascon Properties, 866 F.2d at 1152. a plaintiff must allege that (1) the waste disposal site is a “facility” within the meaning of 42 U.S.C. § 9601(9); (2) a “release” or “threatened release” of any “hazardous substance” from the facility has occurred, id. § 9607(a)(4); and (3) such “release” or “threatened release” has caused the plaintiff to incur response costs that are “consistent with the national contingency plan,” id. §§ 9607(a)(4) & (a)(4)(B). The allegations of the Complaint state a claim under section 9607(a) upon which relief can be granted. First, plaintiff has alleged, and UTC does not dispute, that UTC “continues to be an ‘operator’ of the facility on the Property as defined by 42 U.S.C. § 9601(20)(A).” Complaint 1126; Defendant’s Memorandum at 12 n. 8. Therefore, plaintiff has properly alleged, and defendant does not dispute, that UTC is a “covered person” subject to CERCLA liability. Second, plaintiff has" } ]

[ { "docid": "13941255", "title": "", "text": "the courts to conclude that a buyer’s filing of a petition in bankruptcy does not terminate a seller’s right of reclamation, despite the language of the statute. In Westside Bank, the Fifth Circuit in determining priorities under the UCC, stated: “The Ninth Circuit has held that the Texas right of reclamation survives bankruptcy; thus, the right of the trustee as a hypothetical lien creditor cannot supercede the right of the seller to reclaim despite the words of the statute.” 732 F.2d at 1263, citing, In re Daylin, 596 F.2d 853, 855-56 (9th Cir.1979). The Daylin court, analyzing Texas law, concluded that only a good faith purchaser can cut off a seller’s right of reclamation and that a trustee in bankruptcy only occupies the position of a lien creditor. See Daylin, 596 F.2d at 856. Thus, the courts have interpreted Texas law so as to give priority to the reclaiming seller over the bankruptcy trustee. Charter supports its position by citing the Texas cases of In re Goodson Steel Corp., 10 UCC Rep.Serv. 387 (Bankr.S.D.Tex.1968), and In re Behring & Behring, 5 UCC Rep.Serv. 600 (Bankr.N.D.Tex.1968). The Daylin court recognized that In re Behring & Behring was a straightforward interpretation of the statutory language but declined to follow that approach. 596 F.2d at 856 n. 4. In addition, the post-Goodson Steel Corp. and Behring & Behring Bankruptcy Code Section 546(c) expressly makes the rights and avoidance powers of the trustee subject to the seller’s right of reclamation. Pursuant to Section 546(c), if the court denies the seller’s right of reclamation, the court must afford the seller’s claim priority as an administrative expense or secure the seller’s claim with a lien. 11 U.S.C. § 546(c)(2). Thus, the Bankruptcy Code affords the seller’s right of reclamation the same priority status as a perfected security interest under Article Nine and the filing of a bankruptcy petition does not cut off a perfected security interest. See Westside Bank, 732 F.2d at 1265. A perfected security interest also has priorty over a lien holder under U.C.C. § 9-301. Charter also argues that the Daylin and Westside" } ]

[ { "docid": "1279011", "title": "", "text": "deny such right of reclamation if (A) the seller is granted a priority as an administrative expense, or (B) the claims secured by a lien. This provision protects a debt- or seeking to reorganize by giving him use of the goods and at the same time protects the seller by giving him either an administration claim priority or a lien. (Emphasis added). Bankruptcy Code § 546 comment (Collier Pamphlet ed. 1990); See also 4 King, Cook, D’Agostino & Klee, Collier on Bankruptcy ¶ 546.04, at 546-21-22 and n. 14 (15th ed. 1990). In the case of Griffin Retreading Co. v. Oliver Rubber Co. (Matter of Griffin Retreading Co.), 795 F.2d 676 (8th Cir.1986), the seller established its right to reclaim goods under Section 546(c), but could not recover the goods because they had been sold by the debtor in the ordinary course of business. Because the goods had been sold, the district court denied the seller an alternative remedy under Section 546(c)(2)(A) or (B). The court of appeals reversed, holding that the district court should have considered the alternative remedies available to the seller. The court wrote: Under § 546(c) (1982), while the reclaiming seller has the right (assuming the predicate conditions are met) to reclaim, the right is not an absolute one. If reclamation is denied the court must choose one of two alternatives. Under § 546(c)(2)(A) the court may treat the claim as an administrative expense priority under § 503(b), or under § 546(c)(2)(B) the court may secure such a claim by a lien. Such a lien is in the nature of a lien on the assets of the bankrupt estate, including the goods so delivered. In re Coast Trading Co., Inc., 744 F.2d 686 at 692 [ (9th Cir.1984) ]; In re Flagstaff Foodservice Corp., 14 B.R. 462 at 467 [ (Bkrtcy.S.D.N.Y.1981) ]. Id. at 679. The alternative nature of the remedies available under Section 546(c) has also been noted by other courts. E.g., In re Roberts Hardware Co., 103 B.R. 396, 399 (Bankr.N.D.N.Y.1988); Toshiba America, Inc. v. Video King of Illinois, Inc. (In re Video King" }, { "docid": "14515722", "title": "", "text": "to establish this fact, along with every other element of Code § 546(c), by a preponderance of the evidence. See Video King, 100 B.R. at 1015; see also Monfort, Inc. v. Kunkel (In re Morken), 182 B.R. 1007, 1021 (Bankr.D.Minn.1995) (stating that presumption of insolvency is for preference purposes only under Code § 547(f)). Imperial also bears the burden of demonstrating that Debtor had possession of the Goods at the time the Notice was received. See Rawson Food Serv. 846 F.2d at 1347; In re New York Wholesale Distribs. Corp., 58 B.R. 497, 500 (Bankr.S.D.N.Y.1986); Allstate Fabricators, Inc. v. Flagstaff Foodservice Corp. (In re Flagstaff Foodservice Corp.), 56 B.R. 899, 908 n. 7 (Bankr.S.D.N.Y.1986). Returning to the first requirement of Code § 546(c) of a statutory or common-law right to reclaim, a seller in New York has a statutory right of reclamation where the buyer has received goods on credit while insolvent and where the seller has demanded return of the goods within the statutory time limit after receipt by the buyer. See NYUCC § 2-702; Sandoz Pharmaceuticals Corp. v. Blinn Wholesale Drug Co., Inc. (In re Blinn Wholesale Drug Co., Inc.), 164 B.R. 440, 443 (Bankr.E.D.N.Y.1994). The right to reclaim is limited by NYUCC § 2-702(3), however, which makes the seller’s right subject to the rights of a buyer in the ordinary course of business or other good faith purchaser. See Blinn, 164 B.R. at 443; Child World, 145 B.R. at 7. It is well-settled law that absent a showing of bad faith, a holder of a prior perfected, floating lien on inventory will be treated as a good faith purchaser with rights superior to those of a reclaiming seller. See Stowers v. Mahon (In re Samuels & Co.), 526 F.2d 1238, 1242-43 (5th Cir.1976); Isaly Klondike Co. v. Sunstate Dairy & Food Prods. Co. (In re Sunstate Dairy & Food Prods. Co.), 145 B.R. 341, 344 (Bankr.M.D.Fla.1992); Child World, 145 B.R. at 7; In re Diversified Food Serv. Distribs., 130 B.R. 427, 429 (Bankr.S.D.N.Y.1991). In the case sub judice, Debtor asserts that C & S Wholesale Grocers, Inc." }, { "docid": "142453", "title": "", "text": "a UCC § 2-702 reclaiming seller who does not fit into Code § 546(c) is intended by Congress to be subordinate to the trustee under Bankruptcy Code § 544 et seq. See White, Summers, Uniform Commercial Code § 24-9 (2d ed. 1980). Since Section 2-702 of the Uniform Commercial Code was designed to codify the seller’s common law right to reclamation on the grounds of fraud, it would follow that “a seller who is unable to utilize Section 2-702(2) for [procedural reasons] will also usually be unable to employ Section 546(c) in which case the availability of common law fraud remedies will be of little avail also, because they too depend upon these requirements under section 546(c).” Mann and Phillips, Section 546(c) of the Bankruptcy Reform Act: An Imperfect Resolution of the Conflict Between the Reclaiming Seller and the Bankruptcy Trustee, 54 Am.Bankr.L.J. 239 at 261 n. 107 (1980). But see Id. at 267 (Section 546(c) provides the seller with a “safe harbor” against the trustee or debtor, but it is not the exclusive remedy). “In sum, the substantial weight of authority holds that section 546(c) represents an exclusive remedy, and unless a seller meets the ten-day notice requirement, it has no other common law or statutory right of action.” In re HRT Industries, Inc., 29 B.R. 861, 864 (Bankr.S.D.N.Y.1983). Allstate’s claim to the proceeds of the sale of the equipment is subordinate to the rights of GECC as the holder of a security interest in the accounts receivable. The Uniform Commercial Code provides that the rights of the secured party to an account receivable are superior to those of a seller who does not retain a purchase money security interest. See UCC §§ 9-107, 9-301 and 9-306. See also In re Samuels & Co., Inc. (Stowers, et a. v. Mahon, et al.), 526 F.2d 1238 (5th Cir.1976). Even if these general principles were not sufficient, the Second Circuit’s decisions known as (Flagstaff I) and (Flagstaff II), cited supra, would dictate this outcome. CONCLUSION Thus, this court concludes that Allstate’s demand for reclamation fails due to the finding of fact" }, { "docid": "1086291", "title": "", "text": "the letter’s status as a satisfactory U.C.C. § 2-702 reclamation demand. B. Seller’s Reclamation Right When There Is A Perfected Security Interest In the Goods As straightforward as Section 546(c) reads, courts have split over whether the seller’s right of reclamation is still available when there is a creditor with a perfected security interest in the buyer/debtor’s inventory. Some courts have held that a seller’s reclamation interest is “extinguished” by a secured creditor claim, while other courts have held that the seller’s reclamation right is not extinguished but merely subordinated to the secured creditor’s claim. See For cases holding seller’s right is not extinguished: In re Leeds Building Products, Inc., 141 B.R. 265 (Bankr N.D.Ga.1992); In re Pester Refining Co., 964 F.2d 842, 846 (8th Cir.1992); In re Bosler Supply Group, 74 B.R. 250 (N.D.Ill.1987); In re Roberts Hardware Co., 103 B.R. 396 (Bankr.N.D.N.Y.1988); For cases holding seller’s right is extinguished: In re Shattuc Cable Corp., 138 B.R. 557 (Bankr.N.D.Ill.1992); In re Coast Trading Co., 744 F.2d 686 (9th Cir.1984). This court finds that to extinguish Dynascan’s right of reclamation without granting an alternative remedy would provide an inequitable solution. Although Dy-nascan has fulfilled the requirements of § 546(c) to reclaim the goods, reclamation is impossible because the goods have already been sold. In In re Griffin Retreading Co., a strikingly similar situation was presented. 795 F.2d 676 (8th Cir.1986). In Griffin, the regular supplier of a tire retreading company shipped a supply of rubber to the tire company. Id. On the day after the shipment was received, the tire company filed for bankruptcy. Id. The supplier promptly demanded reclamation of the shipment pursuant to U.C.C. § 2-702, but the company failed to return the shipment and subsequently sold the goods in the ordinary course of business. Id. The Eighth Circuit Court of Appeals, in affirming the District Court, held that a reclaiming seller creditor that meets all the tests under § 546(c) for reclamation is entitled to either an administrative expense priority or secured lien when a right of reclamation is made impossible because the properly reclaimed goods were" }, { "docid": "14515719", "title": "", "text": "filed UCC-1 financing statements which cover Debtor’s inventory, and that these entities are deemed good faith purchasers whose interests are superior to Imperial’s right to reclamation. As a result, Imperial is unable to exercise its right of reclamation and its claim is extinguished, thereby precluding Imperial from an administrative priority claim or a substitute lien under Code § 546(c)(2)(A) or (B). Debtor asserts that Imperial is left only with a non-priority unsecured claim. DISCUSSION This Court has previously addressed the issue of whether a secured creditor with a floating lien takes precedence over a seller’s right to reclaim under Code § 546(c) . See In re Roberts Hardware Co., 103 B.R. 396 (Bankr.N.D.N.Y.1988). In that Decision, the Court observed that Code § 546(c) was enacted to dispel the confusion surrounding the application of § 2-702 of the Uniform Commercial Code in a bankruptcy context, see id. at 398, in that the intended purpose of Code § 546(c) was to preserve reclamation rights that exist outside of bankruptcy. See H.R. No. 595, 95th Cong., 1st Sess. 371-72 (1978), reprinted in 1978 U.S.C.C.A.N. 5963, 6327-28. Importantly, the section does not create an independent right of reclamation, but rather recognizes such a right if the seller has a right to reclaim under applicable non-bankruptcy law. See Toshiba America, Inc. v. Video King of Illinois, Inc. (In re Video King of Illinois, Inc.), 100 B.R. 1008, 1013 (Bankr.N.D.Ill.1989). Code § 546(e) preserves the right of a creditor/seller to reclaim goods sold to an insolvent debtor if the seller can establish: (1) that it has a statutory or common-law right to reclaim the goods; (2) that the goods were sold in the ordinary course of the seller’s business; (3) that the debtor was insolvent at the time the goods were received; and (4) that it made a written demand for reclamation within the statutory time limit after the debtor received the goods.' See 11 U.S.C. § 546(c); In re Child World, Inc., 145 B.R. 5, 7 (Bankr.S.D.N.Y.1992), aff'd, 147 B.R. 323 (S.D.N.Y.1992), aff'd, 992 F.2d 321 (2d Cir.1993); In re Leeds Bldg. Prods., Inc., 141" }, { "docid": "142452", "title": "", "text": "at the Perth Amboy plant on July 22, eight days after shipment from Providence and two days after a portion of the goods had been billed to Flagstaff’s customer. Allstate’s reclamation claim must be denied on the grounds that it has failed to prove that Flagstaff was in possession of the Equipment at the time of receipt of the reclamation demand. This court now addresses the question of whether Allstate, having failed on its Code § 546(c) claim, can avail itself of a common law fraud remedy. It appears to be well settled law that Code § 546(c) is an exclusive remedy for reclaiming creditors. See, In re HRT Industries, 29 B.R. 861 (Bankr.S.D.N.Y.1983); In re Deephouse Equipment Co., 22 B.R. 255 (Bankr.D.Conn.1982); In re Koro Corp., 20 B.R. 241 (Bankr. 1st Cir.1982); In re Ateco Equipment, Inc., 18 B.R. 917 (Bankr.W.D.Pa.1982); In re Contract Interiors, Inc., 14 B.R. 670 (Bankr.E.D.Mich.1981); In re Original Auto Parts Distributors, Inc., 9 B.R. 469 (Bankr.S.D.N.Y.1981). The courts have read a negative implication into Code § 546(c), namely that a UCC § 2-702 reclaiming seller who does not fit into Code § 546(c) is intended by Congress to be subordinate to the trustee under Bankruptcy Code § 544 et seq. See White, Summers, Uniform Commercial Code § 24-9 (2d ed. 1980). Since Section 2-702 of the Uniform Commercial Code was designed to codify the seller’s common law right to reclamation on the grounds of fraud, it would follow that “a seller who is unable to utilize Section 2-702(2) for [procedural reasons] will also usually be unable to employ Section 546(c) in which case the availability of common law fraud remedies will be of little avail also, because they too depend upon these requirements under section 546(c).” Mann and Phillips, Section 546(c) of the Bankruptcy Reform Act: An Imperfect Resolution of the Conflict Between the Reclaiming Seller and the Bankruptcy Trustee, 54 Am.Bankr.L.J. 239 at 261 n. 107 (1980). But see Id. at 267 (Section 546(c) provides the seller with a “safe harbor” against the trustee or debtor, but it is not the exclusive remedy)." }, { "docid": "6508396", "title": "", "text": "surplus collateral remaining consists of the very goods sold by the reclaiming seller or the traceable proceeds from those goods. Courts differ on the treatment to be afforded reclaiming sellers subject to the superior rights of good faith purchasers. Some courts have awarded a reclaiming seller, who otherwise meets the criteria to qualify as a reclaiming seller but is subject to a superior claim, an administrative claim or replacement lien for the full amount of the goods sought to be reclaimed. Sunstate Dairy, 145 B.R. at 345-46; In re Diversified Food Service Distributors, Inc., 130 B.R. 427, 430 (Bankr.S.D.N.Y.1991). However, the majority view appears to be some method of assuring that the reclaiming seller only receive what it would have received outside of the bankruptcy context after the superior claim was satisfied. Pester, 964 F.2d at 847; Leeds, 141 B.R. at 269; Blinn, 164 B.R. at 448; Victory Markets, 212 B.R. at 744. Thus, it is only when the reclaiming seller’s goods or traceable proceeds from those goods are in excess of the value of the superior claimant’s claim that the reclaiming seller will be allowed either to reclaim the goods or receive an administrative claim or lien in an amount equal to the goods that remain after the superior claim has been paid. Victory Markets, 212 B.R. at 744 (citing Pester 964 F.2d at 847); United States v. Westside Bank, 732 F.2d 1258, 1263 (5th Cir.1984). Allowing the reclaiming seller to recover only that to which it would be entitled absent the bankruptcy is in keeping with the purpose § 546(c) which is to preserve any common law or statutory rights to reclamation, not to enhance those rights. Victory Markets, 212 B.R. at 741 (citing, H.R. No. 595, 95th Cong., 1st Sess. 371-372 (1978), reprinted in 1978 U.S.C.C.A.N. 5963, 6327-28); Video King, 100 B.R. at 1016-17; Leeds, 141 B.R. at 269. It therefore follows that any administrative claim or lien substituted for the right to reclamation pursuant to § 546(c) should be “allowed only to the extent of the value of the lost right of reclamation.” Video King, 100" }, { "docid": "23419588", "title": "", "text": "the Bankruptcy Reform Act: An Imperfect Resolution of the Conflict Between the Reclaiming Seller and the Bankruptcy Trustee, 54 Amer.Bankr. L.J. 239, 241-57 (1980). . Unlike the UCC, § 546(c) is limited to sellers in the ordinary course of business who make a written reclamation demand within ten days of the buyer’s receipt of the goods. . See, e.g., In re Rawson Food Serv., Inc., 846 F.2d 1343, 1347 (11th Cir.1988); In re Intercity Oil Co., 122 B.R. 358 (Bankr.W.D.Wis.1990); Archer Daniels Midland Co. v. Charter Int'l Oil Co., 60 B.R. 854, 856 (M.D.Fla.1986); Matter of Flagstaff Foodserv. Corp., 14 B.R. 462, 465 (Bankr.S.D.N.Y.1981). These cases reflect the origins of reclamation as a rescissional, possessory remedy. Matter of Griffin Retreading is not to the contrary; in Griffin the buyer sold the goods after receiving the seller’s reclamation demand, 795 F.2d at 677. See Intercity Oil Co., 122 B.R. at 360. . We also reject Pester’s argument that the presence of secured creditors with \"super-priority\" status under § 364(c) (1) & (3) precludes § 546(c) relief. See In re Diversified Food Serv. Distrib., Inc., 130 B.R. 427 (Bankr.S.D.N.Y.1991). . S.Rep. No. 95-989, 95th Cong., 2d Sess., reprinted in 1978 U.S.C.C.A.N. 5787, 5873. . We summarily reject Pester's contention that the district court erred in valuing the chemicals at Ethyl's invoice price, instead of a lower fair market value that witnesses for Pester urged at trial. The court’s finding that Ethyl’s invoice prices were the fair market prices for the chemicals is not clearly erroneous. A reclaiming seller under § 546(c) is entitled to more than the \"garage sale\" price its goods would bring if resold not in the ordinary course of business. See In re Performance Papers, Inc., 119 B.R. 127, 130 (Bankr.W.D.Mich.1990). . Post-judgment interest is calculated from the \"date on which the original judgment was entered in the initial trial court proceeding and not the date of affirmance on appeal.” Total Petroleum, Inc. v. Davis, 822 F.2d 734, 738 (8th Cir.1987)." }, { "docid": "14515720", "title": "", "text": "371-72 (1978), reprinted in 1978 U.S.C.C.A.N. 5963, 6327-28. Importantly, the section does not create an independent right of reclamation, but rather recognizes such a right if the seller has a right to reclaim under applicable non-bankruptcy law. See Toshiba America, Inc. v. Video King of Illinois, Inc. (In re Video King of Illinois, Inc.), 100 B.R. 1008, 1013 (Bankr.N.D.Ill.1989). Code § 546(e) preserves the right of a creditor/seller to reclaim goods sold to an insolvent debtor if the seller can establish: (1) that it has a statutory or common-law right to reclaim the goods; (2) that the goods were sold in the ordinary course of the seller’s business; (3) that the debtor was insolvent at the time the goods were received; and (4) that it made a written demand for reclamation within the statutory time limit after the debtor received the goods.' See 11 U.S.C. § 546(c); In re Child World, Inc., 145 B.R. 5, 7 (Bankr.S.D.N.Y.1992), aff'd, 147 B.R. 323 (S.D.N.Y.1992), aff'd, 992 F.2d 321 (2d Cir.1993); In re Leeds Bldg. Prods., Inc., 141 B.R. 265, 267 (Bankr.N.D.Ga.1992). Code § 546(c) is the exclusive remedy of a creditor who seeks to reclaim goods sold to an insolvent debtor. See Flav-O-Rich, Inc. v. Rawson Food Serv., Inc. (In re Rawson Food Serv., Inc.), 846 F.2d 1343, 1346 (11th Cir.1988); In re Mayer Pollock Steel Corp., 157 B.R. 952, 959 (Bankr.E.D.Pa.1993); In re Rea Keech Buick, Inc., 139 B.R. 625, 628 (Bankr.D.Md.1992); Leeds Bldg. Prods., 141 B.R. at 267. Initially addressing the latter three elements of Code § 546(c), there is no dispute that Imperial sold the Goods to Debtor in the ordinary course of its business. Imperial is in the business of selling health and beauty aids and Debtor regularly purchased such goods from Imperial for purposes of resale. In addition, Debtor concedes that Imperial made its reclamation demand within the statutory period and that it received the Notice on the petition date. Imperial has not submitted evidence of Debtor’s insolvency on the dates the Goods were delivered, however, nor has the Debtor conceded this issue. It is Imperial’s burden" }, { "docid": "23419571", "title": "", "text": "(5th Cir.), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976). This prioritizing is consistent with the historic roots of the reclamation remedy. The UCC’s reclamation provisions raised many questions under the pre-Code bankruptcy laws, spawning nearly two decades of litigation between trustees and reclaiming sellers. Congress responded with § 546(c) of the Code: (c) ... [T]he rights and powers of a trustee under sections 544(a), 545, 547, and 549 of this title are subject to any statutory or common-law right of a seller of goods that has sold goods to the debt- or, in the ordinary course of such seller’s business, to reclaim such goods if the debtor has received such goods while insolvent, but (1) such a seller may not reclaim any such goods unless such seller demands in writing reclamation of such goods before ten days after receipt of such goods by the debtor; and (2) the court may deny reclamation to a seller with such a right of reclamation that has made such a demand only if the court— (A) grants the claim of such a seller priority as a claim of a kind specified in section 503(b) of this title; or (B) secures such claim by a lien. Section 546(c) recognizes, with some limitations, the seller’s state law right to reclaim under § 84-2-702, but also gives the bankruptcy court broad power to substitute a lien or a priority claim for the seller’s right to reclaim possession. This remedial discretion allows the court to leave the goods in the debtor’s possession to facilitate a Chapter 11 reorganization. It also provides flexibility in enforcing secured creditors’ superior rights. See Matter of Griffin Retreading Co., 795 F.2d 676, 679 (8th Cir.1986). III. Does Ethyl Have a Right To Reclaim On this appeal, we begin with uncontested findings that Ethyl satisfied the statutory prerequisites for reclamation under § 546(c) and Kan.Stat.Ann. § 84-2-702(2): (1) Ethyl sold the chemicals in the ordinary course of its business; (2) Pester received the chemicals while insolvent; (3) Ethyl demanded return of the chemicals in writing within ten days after" }, { "docid": "1086305", "title": "", "text": "or secures the reclaiming seller’s claim by a lien. The case law to date is divergent on the measure of the reclaiming seller’s remedy. One line of cases holds the reclaiming seller is given either an administrative expense or a lien on the debtor’s property in the full amount of the valid reclamation claim; the other line of cases holds the reclaiming seller is given either an administrative expense or a lien on the debtor’s property only to the extent the value of the debtor’s collateral exceeds the amount of the floating lien on the collateral. Compare American Saw & Mfg. Co. v. Bosler Supply Group (In re Bosler Supply Group), 74 B.R. 250, 254-255 (N.D.Ill.1987), and In re Diversified Food Serv. Distribs., 130 B.R. at 430, with In re Leeds Bldg. Prods., 141 B.R. 265, 270 (Bankr.N.D.Ga.1992); Toshiba America, Inc. v. Video King, Inc. (In re Video King, Inc.), 100 B.R. 1008, 1016-1017 (Bankr.N.D.Ill.1989); and Pillsbury Co. v. FCX, Inc. (In re FCX, Inc.), 62 B.R. 315, 322-323 (Bankr.E.D.N.C.1986). This Court adopts the former view with the understanding the bankruptcy court has the authority under Section 546(c) to establish a lien on any property of the debtor, not just the property sold to the debtor by the reclaiming seller. The Court would not, however, grant a super priority lien under Section 546(c). Western Farmers Ass’n v. Ciba Geigy (In re Western Farmers Ass’n), 6 B.R. 432 (Bankr.W.D.Wash.1980); McCain Foods, Inc. v. Flagstaff Foodservice Co. New England (In re Flagstaff Foodservice Corp.), 14 B.R. 462 (Bankr.S.D.N.Y.1981). In the instant case, since Barclays has a pre-petition lien on all of Debtor’s collateral, the granting of a security interest may be a hollow victory unless mar-shalling or equitable subordination is available. Despite the virtual ineffectiveness of a secured claim, the award of an administrative expense under Section 546(c) is appropriate. Section 546(c) merely recognizes that a statutory or common law right to reclaim goods can survive the bankruptcy. Section 546(c) does not expand Klondike’s state law reclamation rights. In re Pester Ref Co., 964 F.2d at 842; In re Video King, Inc.," }, { "docid": "8306735", "title": "", "text": "demand a requirement under § 546(c). See, e.g., In re Rawson Food Service, 846 F.2d 1343 (11th Cir. 1988); American Saw & Mfg. Co. v. Bosler Supply Group, (Matter of Bosler Supply Group), 74 B.R. 250 (N.D.Ill.1987); In re Flagstaff Foodservice, 56 B.R. 899 (Bankr. S.D.N.Y.1986); In re Landy Beef, 30 B.R. 19 (Bankr.D.Mass.1983). In Rawson Food Service, the Eleventh Circuit Court of Appeals concluded that: ... an implicit requirement of a § 546(c) reclamation claim is that the debtor must possess the goods when the reclamation demand is made and therefore that the seller must prove possession as part of its prima facie case. 846 F.2d at 1344. The blanket requirement of possession in the caselaw, while true in general, is overly broad. The cases do not distinguish whether possession is an element under § 546(c) of the Bankruptcy Code or in establishing an independent right of reclamation under nonbankruptcy law to be recognized under § 546(c). The latter thesis is more defensible. Section 2-702(3) of the U.C.C. makes a seller’s reclamation rights subject to any sale by the debtor of those goods to a buyer in the ordinary course of business or by a disposition to another good faith purchaser as that term is defined in § 2-403 of the U.C.C. Thus, if before the reclamation demand is made, the debtor sells the goods to a buyer in the ordinary course, the seller cannot recover the goods from the buyer. In re Landy Beef Co., Inc., 30 B.R. 19, 21 (Bankr.D.Mass.1983). Toshiba and Panasonic seem to recognize this rule and thus some requirement of possession by seeking only partial summary judgment and seek to recover only the value of the goods still in the debtor’s possession at the time of the demand. However, the logic then follows that the possession requirement is not absolute. If the goods are in possession of one who is neither a buyer in the ordinary course nor a good faith purchaser, the reclaiming seller’s rights would not be subject to the rights of such a party under § 2-702(3). See Monsanto Co. v." }, { "docid": "10278687", "title": "", "text": "dismissal and the District Court affirmed. Flav-O-Rich now appeals. II. DISCUSSION The question before us is whether the Bankruptcy Court, affirmed by the district court, erred in its conclusion that Flav-O-Rich failed to present a claim upon which relief could be granted because it did not present any proof in its case-in-chief that Rawson possessed the reclamation goods when it received Flav-O-Rich’s reclamation demand. To determine the requisite elements of a seller’s prima facie case for reclamation, we must look to § 546(c) of the Bankruptcy Code and the case law interpreting it. Section 546(c) of the Bankruptcy Code provides the exclusive remedy for a seller who seeks to reclaim goods from a debtor in bankruptcy. In re Rozel Industries, Inc., 74 B.R. 643, 646 (Bkrtcy.N.D.Ill.1987). Although the § 546(c) reclamation right is “akin to that provided by the Uniform Commercial Code,” In re Deephouse Equipment Co., Inc., 22 B.R. 255, 258 (Bkrtcy.D.Conn.1982), compliance with the U.C.C. requirements is insufficient to allow reclamation unless the § 546(c) requirements also are met. Id.; In re Charter Co., 52 B.R. 263, 265-66 (Bkrtcy.M.D.Fla.1985) (“Charter I\"); In re Flagstaff Food- service Corp., 56 B.R. 899, 909 (Bkrtcy.S.D.N.Y.1986) (“Flagstaff II\"). The primary differences between § 546(c) of the Bankruptcy Code and § 2-702(2) of the U.C.C. are that the U.C.C. waives the ten-day prior notice requirement if the buyer fraudulently misrepresents its solvency to the seller within three months prior to the receipt of the goods and that the U.C.C. does not specify that the reclamation demand must be in writing. See In re Flagstaff Foodservice Corp., 14 B.R. 462, 467 (Bkrtcy.S.D.N.Y.1981) (“Flagstaff I\"); Matter of AIC Photo, Inc., 57 B.R. 56, 59 (Bkrtcy.E.D.N.Y.1985); In re Landy Beef Co., Inc., 30 B.R. 19, 20 (Bkrtcy.D.Mass.1983). It is settled in the case law that the seller is required to establish the following in order to reclaim goods from a debtor in bankruptcy pursuant to § 546(c): (1) a statutory or common law right to reclaim the goods; (2) the debtor’s insolvency when it received the goods; and (3) a written reclamation demand made within ten" }, { "docid": "19078784", "title": "", "text": "debts in the ordinary course of business.” Tenn.Code Ann. § 47-1-201(23). In contrast, 11 U.S.C. § 546(c) allows a seller to successfully reclaim his property as against the trustee only when, among other things: 1) the buyer is insolvent, as the term is defined in the Bankruptcy Code, at the time of receipt of the goods; 2) the seller satisfied state statutory or common law reclamation requirements; and 3) the seller made a written demand for reclamation within ten days of the delivery. As an initial matter, while Oakland satisfied § 47-2-702(2), Oakland failed to meet § 546(c)’s reclamation requirements. Oakland offered, no evidence that Julien Co.’s liabilities actually exceeded its assets at the time that Oakland demanded that Federal return the cotton to Oakland. Instead, Oakland had only “heard” that the buyer was having financial difficulty. Also, Oakland failed to make the mandatory written demand. Oakland contends that the lower courts erred in applying § 546(c) to the present case. In Oakland’s view, as the inter-pleader suit was filed prior to the debtor’s bankruptcy, Tenn.Code Ann. § 47-2-702(2), rather than federal bankruptcy law, governs the reclamation claim. A minority of courts favor Oakland’s position, holding that a court cannot retroactively apply § 546(c) to a creditor once the creditor has satisfied state law reclamation prior to the debtor’s bankruptcy. In re Bearhouse, Inc., 84 B.R. 552 (Bankr.W.D. Ark.1988); In re A. G. S. Food Systems, Inc., 14 B.R. 27 (Bankr.D.S.C.1980). However, an overwhelming majority of jurisdictions have held that “§ 546(c) provides the exclusive remedy for a seller who seeks to reclaim goods from a debtor in bankruptcy.” In re Rawson Food Service, Inc., 846 F.2d 1343, 1346 (11th Cir.1988); see, e.g., In re Dynamic Technologies Corp., 106 B.R. 994, 1003 (Bankr.D.Minn.1989); In re Rozel Industries, Inc., 74 B.R. 643, 644 (Bankr.N.D.Ill.1987) (offering an exhaustive list of courts following the majority approach); In re HRT Industries, Inc., 29 B.R. 861 (Bankr.S.D.N.Y.1983); In re Jeanes Mechanical Contractors, Inc., 32 B.R. 657, 658-59 (Bankr.W.D.Ky.1983); In re Contract Interiors, Inc., 14 B.R. 670, 675 (Bankr.E.D.Mich.1981). These courts base this conclusion, in part," }, { "docid": "10278689", "title": "", "text": "days after the debtor received the goods. See, e.g., In re New York Wholesale Distributors Corp., 58 B.R. 497, 500 (Bkrtcy.S.D.N.Y. 1986) (“the conditions imposed by Code § 546(c) on a seller who seeks to recover goods sold and delivered to a debtor may be briefly summarized as follows....” (listing above requirements) (emphasis added)); In re Rozel Industries, Inc., 74 B.R. at 646 (“the seller must meet the following re-quirements_” (listing above requirements) (emphasis added)); Flagstaff II, 56 B.R. at 905. The parties agree that all of the above requirements are satisfied in this case. It also is well established that a seller cannot reclaim goods which the debt- or does not possess when it receives the reclamation demand. See In re Coupon Carriers Co., 77 B.R. 650, 652 (N.D.Ill.1987); In re Wheeling-Pittsburgh Steel Corp., 74 B.R. 656, 659 (Bkrtcy.W.D.Pa.1987) (“the seller may only reclaim ‘the goods’ in the buyer’s possession on the date the written demand for reclamation is made.”); In re Bosler Supply Group, 74 B.R. 250, 252 (N.D.Ill.1987) (“various courts have also required that the goods be in the debtor’s possession at the time of the demand.”); Archer Daniels Midland Co. v. Charter International Oil Co., 60 B.R. 854, 856 (M.D.Fla.1986) (“the predominant view allows a seller to reclaim only those goods which are identifiable and in the buyer’s possession at the time the reclamation demand is received.”); In re New York Wholesale Distributors Corp., 58 B.R. at 500 (“the courts have consistently required that the goods still be in the debtor’s possession at the time the demand for reclamation is received.”); Flagstaff II, 56 B.R. at 908 n. 7 (“It is well settled that the seller may only reclaim such goods actually on hand at the time of the demand.”); Oliver Rubber Co. v. Griffin Retreading Co., Inc., 56 B.R. 239, 241 (D.Minn.1985) (“A seller seeking reclamation ... must make a demand for the goods ... while the goods remained in the insolvent buyer’s possession.”), aff'd sub nom. In Re: Griffin Retreading Co., 795 F.2d 676 (8th Cir.1986); In re Charter Co., 54 B.R. 91, 92" }, { "docid": "1086287", "title": "", "text": "& U.C.C. § 2-702 Section 546(c) allows a creditor to reclaim goods delivered to a debtor when certain conditions are met. The statute provides in relevant part that: Except as provided ... the rights and powers of a trustee under sections 544(a), 545, 547, and 549 of this title are subject to any statutory or common-law right of a seller of goods that has sold goods to the debtor, in the ordinary course of such seller’s business, to reclaim such goods if the debtor has received such goods while insolvent, but— (1) such a seller may not reclaim any such goods unless such seller demands in writing reclamation of such goods before ten days after receipt of such goods by the debtor; and (2) the court may deny reclamation to a seller with such a right of reclamation that has made such a demand only if the court— (A) grants the claim of such seller priority as a claim of a kind specified in section 503(b) of this title; or (B) secures such claim by a lien. 11 U.S.C. § 546(c). In other words, a seller is entitled to reclamation if: (1) there is a statutory or common law right to reclaim the goods; (2) the buyer was insolvent when the goods were received; and (3) the seller made a demand on the buyer in writing within ten days of the buyers receipt of the goods. If the seller fulfills these requirements, then a Court should allow the seller the right to reclaim its goods. In re Roberts Hardware Co., 103 B.R. 396, 398 (Bankr.N.D.N.Y.1988). If for some reason a court chooses to deny a seller the right of reclamation of properly reclaimed goods, then the Court must either grant the seller a priority claim such as an administrative claim or a lien. Id; see also Griffin Retreading Co. v. Oliver Rubber Co. (In re Griffin Retreading Co.), 795 F.2d 676, 679 (8th Cir.1986); American Saw & Mfg. Co. v. Bosler Supply Group (In re Bosler Supply Group), 74 B.R. 250, 254 (N.D.Ill.1987). Dynascan easily fulfills Section 546(c)’s three primary" }, { "docid": "6508375", "title": "", "text": "right to reclaim the goods; (2) that the goods were sold in the ordinary course of the seller’s business; (3) that the debtor was insolvent at the time the goods were received; and (4) that it made a written demand for reclamation within the statutory time limit after the debtor received the goods. Victory Markets, 212 B.R. at 741. The reclaiming seller has the burden of establishing each element of § 546(c) by a preponderance of the evidence. Victory Markets, 212 B.R. at 741. Thus, in addition to establishing the requirements necessary to obtain reclamation under common law or any statutory right for such relief, the seller seeking reclamation under § 546(c) must prove that it sold the goods in the ordinary course of business and it made a written demand within ten days of the receipt of the goods. Pester Refining Co. v. Ethyl Corp. (In re Pester Refining Co.), 964 F.2d 842, 845 (8th Cir.1992). Moreover, Bankruptcy Code § 546(c) limits the definition of insolvency to that found in 11 U.S.C. § 101(31). Video King, 100 B.R. at 1013. In addition, to be subject to reclamation, goods must be identifiable and cannot have been processed into other products. Party Packing Corporation v. Rosenberg (In re Landy Beef Co., Inc.), 30 B.R. 19, 21 (Bankr.D.Mass.1983). It has also been noted that “an implicit requirement of a § 546(c) reclamation claim is that the debtor must possess the goods when the reclamation demand is made.” Flav-O-Rich, Inc. v. Rawson Food Service, Inc. (In re Rawson Food Service, Inc.), 846 F.2d 1343, 1344 (11th Cir.1988). See In re Adventist Living Centers, Inc., 52 F.3d 159, 163 (7th Cir.1995); Eighty-Eight Oil Co. v. Charter Crude Oil Co. (In re Charter Co.), 54 B.R. 91, 92 (Bankr.M.D.Fla.1985). However, it is not clear “whether possession is an element under § 546(c) of the Bankruptcy Code or in establishing an independent right of reclamation under nonbankruptcy law to be recognized under § 546(c).” Video King, 100 B.R. at 1014. Logic dictates that, if not possession, the debtor should at least have control over the goods" }, { "docid": "23419572", "title": "", "text": "court— (A) grants the claim of such a seller priority as a claim of a kind specified in section 503(b) of this title; or (B) secures such claim by a lien. Section 546(c) recognizes, with some limitations, the seller’s state law right to reclaim under § 84-2-702, but also gives the bankruptcy court broad power to substitute a lien or a priority claim for the seller’s right to reclaim possession. This remedial discretion allows the court to leave the goods in the debtor’s possession to facilitate a Chapter 11 reorganization. It also provides flexibility in enforcing secured creditors’ superior rights. See Matter of Griffin Retreading Co., 795 F.2d 676, 679 (8th Cir.1986). III. Does Ethyl Have a Right To Reclaim On this appeal, we begin with uncontested findings that Ethyl satisfied the statutory prerequisites for reclamation under § 546(c) and Kan.Stat.Ann. § 84-2-702(2): (1) Ethyl sold the chemicals in the ordinary course of its business; (2) Pester received the chemicals while insolvent; (3) Ethyl demanded return of the chemicals in writing within ten days after Pester received them; and (4) Pester was still in possession of the chemicals when it received Ethyl’s reclamation demand. See Griffin Retreading Co., 795 F.2d at 679. However, Ethyl’s right to reclaim is “subject to” the rights of good faith purchasers, § 84-2-702(3). When Pester received the chemicals from Ethyl, it owed some $42,000,000 to various secured creditors who held perfected floating security interests in Pester’s property, including the chemicals. It is undisputed that these secured creditors were good faith purchasers, and that their security interests were undersecured when Pester filed its petition for Chapter 11 protection. Pester argues that the mere presence of secured creditors with superior rights under § 84-2-702(3) extinguished Ethyl’s right of reclamation. This contention does obvious violence to the statutory language. In the UCC context, when the right to reclaim is “subject to” the rights of secured creditors, that means the right is subordinate or inferior to the security interests, not that it is automatically and totally extinguished. See Toyota Ind. Trucks U.S.A., Inc. v. Citizens Nat’l Bank, 611 F.2d" }, { "docid": "14515721", "title": "", "text": "B.R. 265, 267 (Bankr.N.D.Ga.1992). Code § 546(c) is the exclusive remedy of a creditor who seeks to reclaim goods sold to an insolvent debtor. See Flav-O-Rich, Inc. v. Rawson Food Serv., Inc. (In re Rawson Food Serv., Inc.), 846 F.2d 1343, 1346 (11th Cir.1988); In re Mayer Pollock Steel Corp., 157 B.R. 952, 959 (Bankr.E.D.Pa.1993); In re Rea Keech Buick, Inc., 139 B.R. 625, 628 (Bankr.D.Md.1992); Leeds Bldg. Prods., 141 B.R. at 267. Initially addressing the latter three elements of Code § 546(c), there is no dispute that Imperial sold the Goods to Debtor in the ordinary course of its business. Imperial is in the business of selling health and beauty aids and Debtor regularly purchased such goods from Imperial for purposes of resale. In addition, Debtor concedes that Imperial made its reclamation demand within the statutory period and that it received the Notice on the petition date. Imperial has not submitted evidence of Debtor’s insolvency on the dates the Goods were delivered, however, nor has the Debtor conceded this issue. It is Imperial’s burden to establish this fact, along with every other element of Code § 546(c), by a preponderance of the evidence. See Video King, 100 B.R. at 1015; see also Monfort, Inc. v. Kunkel (In re Morken), 182 B.R. 1007, 1021 (Bankr.D.Minn.1995) (stating that presumption of insolvency is for preference purposes only under Code § 547(f)). Imperial also bears the burden of demonstrating that Debtor had possession of the Goods at the time the Notice was received. See Rawson Food Serv. 846 F.2d at 1347; In re New York Wholesale Distribs. Corp., 58 B.R. 497, 500 (Bankr.S.D.N.Y.1986); Allstate Fabricators, Inc. v. Flagstaff Foodservice Corp. (In re Flagstaff Foodservice Corp.), 56 B.R. 899, 908 n. 7 (Bankr.S.D.N.Y.1986). Returning to the first requirement of Code § 546(c) of a statutory or common-law right to reclaim, a seller in New York has a statutory right of reclamation where the buyer has received goods on credit while insolvent and where the seller has demanded return of the goods within the statutory time limit after receipt by the buyer. See NYUCC §" }, { "docid": "23419587", "title": "", "text": "deemed to have contemplated post-judgment interest on that court order. Therefore, Ethyl is entitled to post-judgment interest on its money judgment from the date of the judgment, September 19, 1990. The judgment of the district court is modified to provide for post-judgment interest in accordance with 28 U.S.C. § 1961 from September 19, 1990. As so modified, the judgment is affirmed. . The HONORABLE HAROLD D. VIETOR, Chief Judge of the United States District Court for the Southern District of Iowa. The district court summarily affirmed the decision of the HONORABLE RUSSELL J. HILL, United States Bankruptcy Judge for the Southern District of Iowa. . Kansas law governs this transaction. Kansas has adopted the UCC and its numbering methodology in Chapter 84 of the Kansas Statutes. Thus, UCC § 2-702 is found at Kan.Stat.Ann. § 84-2-702. The remainder of this opinion will cite to the Kansas provisions, rather than their UCC counterparts. . See Matter of PFA Farmers Market Ass'n, 583 F.2d 992 (8th Cir.1978). See generally Richard Mann & Michael Phillips, Section 546(c) of the Bankruptcy Reform Act: An Imperfect Resolution of the Conflict Between the Reclaiming Seller and the Bankruptcy Trustee, 54 Amer.Bankr. L.J. 239, 241-57 (1980). . Unlike the UCC, § 546(c) is limited to sellers in the ordinary course of business who make a written reclamation demand within ten days of the buyer’s receipt of the goods. . See, e.g., In re Rawson Food Serv., Inc., 846 F.2d 1343, 1347 (11th Cir.1988); In re Intercity Oil Co., 122 B.R. 358 (Bankr.W.D.Wis.1990); Archer Daniels Midland Co. v. Charter Int'l Oil Co., 60 B.R. 854, 856 (M.D.Fla.1986); Matter of Flagstaff Foodserv. Corp., 14 B.R. 462, 465 (Bankr.S.D.N.Y.1981). These cases reflect the origins of reclamation as a rescissional, possessory remedy. Matter of Griffin Retreading is not to the contrary; in Griffin the buyer sold the goods after receiving the seller’s reclamation demand, 795 F.2d at 677. See Intercity Oil Co., 122 B.R. at 360. . We also reject Pester’s argument that the presence of secured creditors with \"super-priority\" status under § 364(c) (1) & (3) precludes § 546(c) relief." } ]

[ { "docid": "1428435", "title": "", "text": "law that plaintiff “had achieved such pervasive fame and notoriety as of ... the date of publication ... that he had become a public figure ‘for all purposes and in all context’ ” (quoting Gertz v. Robert Welch, Inc., 418 U.S. at 351, 94 S.Ct. at 3012). Our review of this conclusion requires that we consider, first, whether plaintiff’s purported status as a public figure is appropriate for decision on summary judgment and, second, whether the evidence considered in a light most favorable to plaintiff, shows him to be a public figure for the purposes of this litigation. The Supreme Court has on numerous occasions, treated the public figure and public official questions as matters of law, for the trial court to decide. See, e. g., Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154; Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789; Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 677, 15 L.Ed.2d 597 (1966). This Court has observed in this same context that “where undisputed facts admit to but one conclusion, then, on motion for summary judgment, the court properly decides the issue.” Rosanova v. Playboy Enterprises, Inc., 580 F.2d 859, 862 (5th Cir. 1978). Even if summary judgment were improper because of issues of fact that could only be resolved after evidentiary hearing, the trial court, not a jury, must determine whether the evidence showed that plaintiff was a public figure. Brewer v. Memphis Publishing Co., 626 F.2d 1238 (5th Cir. 1980). In the absence of conflicting inferences to be drawn from the record in this case, we conclude the district court was justified in considering the public figure question on summary judgment. The record in this case contains sufficient undisputed facts to show that Rebozo, at the time of publication, was a public figure. As is well known, Rebozo was President Nixon’s closest friend while Nixon was in the White House. While this in and of itself has considerable significance, we need not decide whether a confidential relationship with the President of the United" } ]

[ { "docid": "12564505", "title": "", "text": "411 F.Supp. 440, 443 (S.D.Ga.1976), aff'd, 580 F.2d 859 (5th Cir.1978). (“Defining public figure is much like trying to nail a jellyfish to the wall”) Defendants argue that Parting-ton is a general purpose public figure “be cause of his constant thirst to seek the public spotlight.” Book Defendants’ Reply Memorandum In Support of Motion to Dismiss at 2 (note 3). Generally speaking, a person becomes a general purpose public figure only if he or she is a well-known celebrity; that is, if his name is a household word. Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1293, n. 12 (D.C.Cir.1980); cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980). Such persons knowingly relinquish their anonymity in return for fame or fortune. It is thus reasonable “to attribute a public character to all aspects of their lives.” Tavoulareas, 817 F.2d at 772. Though Earle Partington is an attorney of some notoriety in the Honolulu community, his celebrity does hot nearly approach that of a well-known athlete, entertainer, or politician — the archetypes of the general purpose public figure. See, e.g. [Johnny] Carson v. Allied News Co., 529 F.2d 206 (7th Cir.1976); Chuy v. Philadelphia Eagles Football Club, 431 F.Supp. 254 (E.D.Pa.1977), aff'd, 595 F.2d 1265 (3d Cir.1979) (en bane). Since the standard applied to. determining whether a person is a general purpose public figure is so strict, the court has no difficulty in concluding that Partington is not a general purpose public figure. The issue is somewhat less clear with respect to Partington’s status as a limited purpose public figure. Gertz establishes a two-part analysis to determine whether an individual is a limited purpose public figure; First, does a public controversy exist? Second, what was the “nature and extent of [the] individual’s participation” in the public controversy? 418 U.S. at 352, 94 S.Ct. at 3013. Three factors determine the “nature and extent” of an individual’s involvement in a public controversy: The extent to which participation in it is voluntary, the extent to which there is access to channels of effective communication in order to counteract false statements, and" }, { "docid": "15695312", "title": "", "text": "was found to be sufficient, by contrast, the facts indicated strongly that the challenged allegations had been completely fabricated by the writer. See Carson v. Allied News Co., 529 F.2d 206, 213 (7th Cir. 1976); Davis v. Schuchat, 510 F.2d 731, 735-36 (D.C.Cir.1975). 634 F.2d at 734. See also Jenoff v. Hearst Corp., 453 F.Supp. at 548-50. The court’s task of assessing the existence of actual malice in this case has been made somewhat easier because it is undisputed that the evidence relating to that issue has been fully developed, and the plaintiff has not requested further discovery into the defendants’ “state of mind.” See Yiamouyiannis v. Consumer’s Union of the United States, Inc., 619 F.2d at 940; Velle Transcendental Research Association, Inc. v. Sanders, 518 F.Supp. 512, 518 (C.D.Cal.1981). Cf. Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979) (permitting discovery into state of mind of a media defendant). See also Hutchinson v. Proxmire, 443 U.S. at 120 n. 9, 99 S.Ct. at 2680 n. 9 (noting potential state of mind problem when determining actual malice question on summary judgment). Fitzgerald contends that actual malice is present in this case due to the following: (1) neither the author nor the editors attempted to verify with Fitzgerald the accuracy of the informant’s statements concerning him; (2) no verification was attempted through any government agency; (3) neither the author nor the editors required the informant to produce documents verifying independently the accuracy of the information; (4) the editors and the author failed to inquire fully into the informant’s background; (5) the editors failed to train and supervise adequately the researcher assigned to the article; (6) the author used some of his own words to characterize Fitzgerald’s conduct; and (7) the fact that changes were made in the informant’s curriculum vitae should have put the defendants on notice that the informant’s information may have been inaccurate. The following undisputed facts, revealed during the extensive discovery that occurred in this case, make it plain that the above contentions are without merit. Prior to submitting the dolphin article to Penthouse," }, { "docid": "15695307", "title": "", "text": "it was inappropriate to grant summary judgment on the issues of defamatory meaning and the truth of the article’s statements. Before addressing the substance of the parties’ contentions regarding actual malice, it is necessary to consider the propriety of ruling on the malice question on a motion for summary judgment. Prior to 1979, several courts were apparently of the view that summary judgment on the malice question was “especially appropriate” in First Amendment cases due to the chilling effect of a protracted trial. See, e. g., Anderson v. Stanco Sports Library, Inc., 542 F.2d 638, 641 (4th Cir. 1976); Washington Post Co. v. Keogh, 365 F.2d 965, 967-68 (D.C.Cir.1966), cert. denied, 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967). In both Hutchinson v. Proxmire, 443 U.S. at 120 n. 9, 99 S.Ct. at 2680 n. 9, and Wolston v. Reader’s Digest Association, 443 U.S. at 161 n.3, 99 S.Ct. at 2704 n.3, however, the Court cast considerable doubt on the notion that the chilling effect of a protracted trial justified any “presumption” in favor of summary judgment on the actual malice question. In light of the Court’s comments, the Second Circuit has approved the use of summary judgment, combining the usual Rule 56 standards with the higher degree of proof required in defamation cases. Accepting the plaintiff’s version of disputed facts, summary judgment is appropriate when “no reasonable jury could find with convincing clarity that [the defendants] acted with actual malice” in the constitutional sense. Yiamouyiannis v. Consumers Union of the United States, Inc., 619 F.2d 932, 940 (2d Cir.), cert. denied, 449 U.S. 839, 101 S.Ct. 117, 66 L.Ed.2d 46 (1980). See Rebozo v. Washington Post Co., 637 F.2d at 380-82 (articulating same standard but finding disputed issues of fact regarding defendant’s awareness of falsity). Although the Fourth Circuit has not expressly considered the issue in light of Wolston and Hutchinson, that court did note, without criticism, Judge Harvey’s grant of summary judgment on the malice question in Jenoff v. Hearst Corp., 453 F.Supp. 541, 548-50 (D.Md.1978), aff’d, 644 F.2d at 1005 n. 3. In the absence" }, { "docid": "2969983", "title": "", "text": "(3rd Cir.), cert. denied, 449 U.S. 982, 101 S.Ct. 398, 66 L.Ed.2d 244 (1980) (allowing the plaintiff to maintain his action in defamation). However the vast weight of case law involves an offending item which actually names the plaintiff or product. See e.g., Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 159, 99 S.Ct. 2701, 2703, 61 L.Ed.2d 450 (1979); Hutchinson v. Proxmire, 443 U.S. 111, 116-117, 99 S.Ct. 2675, 2678-2679, 61 L.Ed.2d 411 (1979); Time Inc. v. Firestone, 424 U.S. 448, 452, 96 S.Ct. 958, 964, 47 L.Ed.2d 154 (1976); Gertz v. Robert Welch, Inc., 418 U.S. 323, 325-326, 94 S.Ct. 2997, 3000, 41 L.Ed.2d 789 (1974); Bose Corp. v. Consumers Union of United States, Inc., 692 F.2d 189, 191-195 (1st Cir.1982), 508 F.Supp. 1249, 1252-1254 (D.Mass.1981); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 585, 224 Ct.Cl. 583 (1st Cir.1980); Harkaway v. Boston Herald Traveler Corp., 418 F.2d 56, 57-58 (1st Cir.1969); National Foundation for Cancer Research, Inc. v. Council of Better Business Bureaus, Inc., 705 F.2d 98, 99 (4th Cir.1983), cert. denied, 464 U.S. 830, 104 S.Ct. 108, 78 L.Ed.2d 110; Golden Bear Distributors v. Chase Revel, Inc., 708 F.2d 944, 953 (5th Cir.); Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 267-269 (3rd Cir.1980); Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1290 (D.C.Cir.), cert. denied 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980); Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 851-853, 330 N.E.2d 161 (1975); Brady v. Hearst Corporation, 281 F.Supp. 637, 641 (D.Mass.1968); Reliance Insurance Co. v. Barrons, 442 F.Supp. 1341, 1354, 1355-1358 (S.D.N.Y.1977); Trans World Accounts, Inc. v. Associated Press, 425 F.Supp. 814, 817 (N.D.Cal.1977). But see two cases in which the alleged defamation did not mention the plaintiff by name: New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (ruling no defamation existed) and Edgartown Police Patrolmen’s Ass’n v. Johnson, 522 F.Supp. 1149 (D.Mass.1981) (holding no defamation existed). . For the complete discussion of this issue, see Goldstein at 250-251, 479 N.E.2d 728. . Speaking directly to" }, { "docid": "12189365", "title": "", "text": "Ass’n of Gov’t Employees, Inc. v. Central Broadcasting Corp., 379 Mass. 220, 396 N.E.2d 996 (1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2152, 64 L.Ed.2d 788 (1980); Kutz v. Independent Publishing Co., 97 N.M. 243, 638 P.2d 1088 (N.M.Ct.App.1981); Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977). . See Restatement (Second) Torts § 566 (1977) and accompanying comments, discussed in text infra at notes 90-94. . See, e.g., Christie, Defamatory Opinions and the Restatement (Second) of Torts, 75 Mich.L.Rev. 1621 (1977); Keeton, Defamation and Freedom of the Press, 54 Tex L.Rev. 1221 (1976); Wade, The Communicative Torts and the First Amendment, 48 Miss.L.J. 671 (1977); Note, Fact and Opinion After Gertz v. Robert Welch, Inc.: The Evolution of a Privilege, 34 Rutgers L.Rev. 81 (1981). . Cf. Gertz v. Robert Welch, Inc., supra note 3, 418 U.S. 339-348, 94 S.Ct. at 3007-3011, 41 L.Ed.2d at 805-810 (balancing the needs of the First Amendment with society’s concern for protection of reputation, to arrive at a standard of culpability in private-figure libel actions); Waldbaum v. Fairchild Publications, 201 U.S.App.D.C. 301, 305-312, 627 F.2d 1287, 1291-1298, cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980) (similar balancing, to arrive at a standard for identifying public figures). . The privilege varies, of course, with the status of the plaintiff. Public officials and public figures can recover for defamatory factual misstatements only on clear and convincing proof that the misstatement was published either with knowledge that it was false or in reckless disregard of its truth or falsity. Gertz v. Robert Welch, Inc., supra note 3, 418 U.S. at 336 & n. 7, 342, 94 S.Ct. at 3005 & n. 7, 3008, 41 L.Ed.2d at 803 & n. 7, 806-807; New York Times Co. v. Sullivan, supra note 5, 376 U.S. at 279-280, 84 S.Ct. at 726, 11 L.Ed.2d at 706; Curtis Publishing Co. v. Butts, 388 U.S. 130, 162-165, 87 S.Ct. 1975, 1995-1996, 18 L.Ed.2d 1094, 1115-1117 (1967). Private-figure plaintiffs" }, { "docid": "23381955", "title": "", "text": "so broadly. Thus, we do not reach the question whether the First Amendment would protect more general statements regarding a lack of professional ability on Partington’s part. . The Supreme Court has specifically declined to address whether an individual's status as a public figure can change over time. Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 166 n. 7, 99 S.Ct. 2701, 2706 n. 7, 61 L.Ed.2d 450 (1979). Few circuits have addressed this issue, and the Ninth Circuit is not among them. However, it appears that eveiy court of appeals that has specifically decided this question has concluded that the passage of time does not alter an individual's status as a limited purpose public figure. See Street v. National Broadcasting Co., 645 F.2d 1227 (6th Cir.1981), cert. dismissed, 454 U.S. 1095, 102 S.Ct. 667, 70 L.Ed.2d 636 (1981); see also Contemporary Mission v. New York Times Co., 842 F.2d 612 (2d Cir.1988), cert. denied, 488 U.S. 856, 109 S.Ct. 145, 102 L.Ed.2d 117 (1988); Wolston v. Reader’s Digest Ass’n, Inc., 578 F.2d 427, 431 (D.C.Cir.1978), rev’d on other grounds, 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979); Brewer v. Memphis Publishing Co., Inc., 626 F.2d 1238 (5th Cir.1980), cert. denied, 452 U.S. 962, 101 S.Ct. 3112, 69 L.Ed.2d 973 (1981); Time, Inc. v. Johnston, 448 F.2d 378, 381 (4th Cir.1971). .Only two circuits have addressed cases in which a defamation claim is based upon the implication arising from the true facts stated by the author; both have held that the mere reporting of facts is not enough to establish liability. The District of Columbia Circuit and the Fourth Circuit agree that a plaintiff cannot succeed on his claim simply by demonstrating that a defamatory implication arises from the factual statements of the defendant or even by proving that the defamation would otherwise be actionable; he must also prove that the defendant endorsed the implication. Chapin v. Knight-Ridder, 993 F.2d 1087, 1093 (4th Cir.1993); White v. Fraternal Order of the Police, 909 F.2d 512, 520 (D.C.Cir.1990). The District of Columbia Circuit has justified this approach by noting" }, { "docid": "12564504", "title": "", "text": "been identified by the Supreme Court: general purpose and limited purpose public figures. “In some instances, an individual may achieve such fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” Gertz, 418 U.S. at 351, 94 S.Ct. at 3012. The extent of the individual’s participation in public affairs and assumption of the risk of 'adverse publicity determines the weight of the government’s interest in protecting his or her reputation. Tavoulareas v. Piro, 817 F.2d 762, 772 (D.C.Cir.1987). Whether, and for what purposes, a person is a public figure is a matter of law for the court to decide. Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966). Unfortunately, determining precisely what individuals are public officials is an uncertain practice and is not readily susceptible to the application of mechanical rules. See, e.g., Rosanova v. Playboy Enterprises, Inc., 411 F.Supp. 440, 443 (S.D.Ga.1976), aff'd, 580 F.2d 859 (5th Cir.1978). (“Defining public figure is much like trying to nail a jellyfish to the wall”) Defendants argue that Parting-ton is a general purpose public figure “be cause of his constant thirst to seek the public spotlight.” Book Defendants’ Reply Memorandum In Support of Motion to Dismiss at 2 (note 3). Generally speaking, a person becomes a general purpose public figure only if he or she is a well-known celebrity; that is, if his name is a household word. Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1293, n. 12 (D.C.Cir.1980); cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980). Such persons knowingly relinquish their anonymity in return for fame or fortune. It is thus reasonable “to attribute a public character to all aspects of their lives.” Tavoulareas, 817 F.2d at 772. Though Earle Partington is an attorney of some notoriety in the Honolulu community, his celebrity does hot nearly approach that of a well-known athlete, entertainer, or politician — the archetypes of" }, { "docid": "19023514", "title": "", "text": "to media comment as such. The trial court held that it was the duty of the trial judge to determine whether or not the appellant was a public figure. Inasmuch as, in this case, the undisputed evidence required a finding that Rosanova was a public figure, the trial court was clearly correct. We need not decide whether or not, in all cases, the determination of that issue would be a function of the court. The majority of courts have treated it as a court question and not one for the jury. E. g., Hoffman v. Washington Post Co., 433 F.Supp. 600, 604 (D.D.C.1977); Hutchinson v. Proxmire, 431 F.Supp. 1311, 1326 (W.D. Wis.1977), aff’d, 579 F.2d 1027 (7th Cir. 1978); Wolston v. Reader’s Digest Association, 429 F.Supp. 167, 176 (D.D.C.1977); Hotchner v. Castillo-Puche, 404 F.Supp. 1041, 1045 (S.D.N.Y.1975), rev’d on other grounds, 551 F.2d 910 (1977). Some appear to hold otherwise. Reliance Insurance Co. v. Barron’s, 442 F.Supp. 1341, 1346 (S.D.N.Y.1977); Martin Marietta Corp. v. Evening Star Newspaper, 417 F.Supp. 947, 954 (D.D.C.1976). Nevertheless, where undisputed facts admit to but one conclusion, then, on motion for summary judgment, the court properly decides the issue. Golden v. Kentile Floors, Inc., 475 F.2d 288, 291 (5th Cir. 1973); Fed.R.Civ.P. 56(c). Having correctly concluded that the plaintiff is a public figure for purposes of this case, the district court then properly turned to the actual malice test as set out in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). No affidavit or deposition filed before the trial judge created a genuine issue concerning the possible presence of malice or reckless disregard of the truth. The subjective awareness of probable falsity required by St. Amants v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), cannot be found where, as here, the publisher’s allegations are supported by a multitude of previous reports upon which the publisher reasonably relied. Playboy is required to show only that the single allegation involved in this suit was made on the basis of sources which were not believed to" }, { "docid": "2921944", "title": "", "text": "“Although we are not in a position to judge the credibility of witnesses, our duty is to make an independent examination of the evidence and determine whether there was a clear and convincing showing of actual malice.” Long 618 F 2d at 1147 Absent an admission by the defendant that he knew his material was false or that he doubted its truth, a public figure must rely upon circumstantial evidence to prove his case. See Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979). In conducting our sufficiency review, certain principles guide our assessment of the evidence. In essence, these rules delineate the permissible inferences, in a constitutional sense, that may be drawn from a public figure plaintiff’s proof. It is well established that evidence that a publisher failed to investigate prior to publication does not, by itself, prove actual malice. St. Amant, 390 U.S. at 732-33, 88 S.Ct. at 1326, 20 L.Ed.2d at 268; Brewer v. Memphis Publishing Co., Inc., 626 F.2d 1238, 1258 n. 26 (5th Cir.1980), cert. denied, 452 U.S. 962, 101 S.Ct. 3112, 69 L.Ed.2d 973 (1981); Vandenburg II, 507 F.2d at 1026; New York Times Co. v. Connor, 365 F.2d 567 (5th Cir.1966). However, when an article is not in the category of “hot news,” that is, information that must be printed immediately or it will lose its newsworthy value, “actual malice may be inferred when the investigation for a story ... was grossly inadequate in the circumstances.” Vandenburg v. Newsweek, Inc., 441 F.2d 378, 380 (5th Cir.1971) (“Vandenburg I”), cert. denied, 404 U.S. 864, 92 S.Ct. 49, 30 L.Ed.2d 108 (1971), appeal after remand, 507 F.2d 1024, 1027 (5th Cir.1975). See also Curtis Publishing, 388 at 157, 87 S.Ct. at 1992, 18 L.Ed.2d at 1112; Ryan v. Brooks, 634 F.2d 726, 733 (4th 1980). The Supreme Court has cited certain eircumstances which may support a finding of actual malice. The defendant in a defamation action brought by a public official cannot, however> automatically ensure a favorable verdict by testifying that he published with a belief that the statements were true." }, { "docid": "15695311", "title": "", "text": "truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” 390 U.S. at 731, 88 S.Ct. at 1325 (emphasis supplied). Recently, in Ryan v. Brooks, 634 F.2d 726 (4th Cir. 1980), Judge Phillips undertook an exhaustive analysis of the meaning of the phrase “actual malice.” Judge Phillips noted the continued validity of the St. Amant formulation, and concluded: “As long as the sources of the libelous information appeared reliable, and the defendant had no doubts about its accuracy, the courts have held the evidence of malice insufficient to support a jury verdict, even if a more thorough investigation might have prevented the admitted error. See Dickey v. CBS Inc., 583 F.2d 1221, 1227 (3d Cir. 1978); Hotchner v. Castillo-Puche, 551 F.2d 910, 912-14 (2d Cir. 1977); Grzelak v. Calumet Publishing Co., 543 F.2d 579, 583 (7th Cir. 1975); Vandenburg v. Newsweek, 507 F.2d at 1026-28; Drotzmann’s, Inc. v. McGrawHill, Inc., 500 F.2d 830, 834 (8th Cir. 1974). In two cases in which the evidence of malice was found to be sufficient, by contrast, the facts indicated strongly that the challenged allegations had been completely fabricated by the writer. See Carson v. Allied News Co., 529 F.2d 206, 213 (7th Cir. 1976); Davis v. Schuchat, 510 F.2d 731, 735-36 (D.C.Cir.1975). 634 F.2d at 734. See also Jenoff v. Hearst Corp., 453 F.Supp. at 548-50. The court’s task of assessing the existence of actual malice in this case has been made somewhat easier because it is undisputed that the evidence relating to that issue has been fully developed, and the plaintiff has not requested further discovery into the defendants’ “state of mind.” See Yiamouyiannis v. Consumer’s Union of the United States, Inc., 619 F.2d at 940; Velle Transcendental Research Association, Inc. v. Sanders, 518 F.Supp. 512, 518 (C.D.Cal.1981). Cf. Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979) (permitting discovery into state of mind of a media defendant). See also Hutchinson v. Proxmire, 443 U.S. at 120 n. 9, 99 S.Ct. at 2680 n. 9 (noting potential state of" }, { "docid": "15695285", "title": "", "text": "In other words, “[b]y voluntarily abandoning anonymity in favor of the public spotlight and its attendant heat, public figures have knowingly exposed themselves to a predictable risk of being burned.” Eaton, supra note 9, at 1420. Cf. Ashdown, Gertz and Firestone: A Study in Constitutional Policy-Making, 61 Minn.L.Rev. 645, 662-65 (1977) (criticizing the Court’s articulated justifications for granting preferential treatment to private persons). In determining whether a defamation plaintiff is a limited-purpose public figure, the trial court is to focus upon “the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.” 418 U.S. at 352, 94 S.Ct. at 3013. Subsequent Supreme Court decisions have, to a degree, clarified the Court’s position regarding the proper application of the Gertz formulation. See, e. g., Wolston v. Reader’s Digest Association, 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979); Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979); Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976). In addition, guidance is available from several recent decisions by the Courts of Appeals. See, e. g., Jenoff v. Hearst Corp., 644 F.2d 1004 (4th Cir. 1981); Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C.Cir.), cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980). The defendants contend that Fitzgerald is a public figure only with respect to the issue of the application of dolphin technology to military and intelligence uses. Accordingly, the court’s analysis will focus upon the limited-purpose public figure aspect of Gertz and its progeny. An initial consideration is the propriety of determining the plaintiff’s status on a motion for summary judgment. In Rosenblatt v. Baer, 383 U.S. at 88, 86 S.Ct. at 677, the Court noted that the question of the plaintiff’s status in a defamation action, like questions of privilege generally, “is for the trial judge in the first instance to determine.” Consequently, if no genuine issue of material fact exists, when the evidence is viewed in the light most favorable to the plaintiff, the court may determine the plaintiff’s status" }, { "docid": "10601826", "title": "", "text": "know that he was simply being informed of the NTSB’s view and could then evaluate the statement accordingly. The defamatory potential of an unattributed statement of what is apparently an accepted fact presents a far different situation. We also reject the suggestion that the researcher’s actual reliance on the NTSB’s report is sufficient to qualify the resulting statement for the privilege. We think this is an example of the government report being “merely part of one’s research” and that such a showing, although perhaps tending to demonstrate good faith, is insufficient to establish an entitlement to the protection of this particular libel defense. Allowing mere reliance to suffice would in no way advance the underlying purposes of the exception. Consequently, we conclude that the fair report privilege is inapplicable. Our resolution of this issue renders it unnecessary to decide whether the statement, if properly attributed, would have satisfied the additional requirements of fairness and accuracy. III. The Public Figure Doctrine The defendants also argue- that the grant of summary judgment should be affirmed because Dameron is a “public figure” (as distinguished from a “public official”) and consequently cannot prevail absent proof of malice. Whether the plaintiff is a public figure is a question of law to be resolved by the court. See Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1293 n. 12 (D.C.Cir.), cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980). Here, the district judge ruled that Dameron was not a public figure. It is true, as the district court held, that Dameron can not fairly be said to have “injected” himself into the controversy. This one factor, however, is not the be-all and end-all of public figure status. Injection is not the only means by which public-figure status is achieved. Persons can become involved in public controversies and affairs without their consent or will. Air-controller Dameron, who had the misfortune to have a tragedy occur on his watch, is such a person. We conclude that Dameron did become an in voluntary public figure for the limited purpose of discussions of the Mt. Weather crash." }, { "docid": "11051690", "title": "", "text": "motivated by a desire for profit. Bell was well paid to publish the Hutton Report. If it can be proven that he negligently published false information about a private individual, there is no reason why he should not be held accountable for any harm caused. A qualified privilege is thus inapplicable to the instant case. B. Limited-Purpose Public Figure In abandoning the public or general interest approach of Rosenbloom v. Metromedia, Inc., the Supreme Court settled on a compromise approach in Gertz v. Robert Welch, Inc. to accommodate the competing values of uninhibited debate with the need to protect reputation. The Gertz approach is grounded in a dichotomy between public and private figures. The Court in Gertz subdivided its discussion of public figures into two categories: general purpose or universal public figures, and limited or vortex public figures. 418 U.S. 323, 345-46, 94 S.Ct. 2997, 3009-3010, 41 L.Ed.2d 789 (1974). The former consists of those individuals with such tremendous notoriety that they have sufficient power and influence to counteract or respond to defamatory statements. Id. The latter consists of those thrust to the forefront of particular controversies and who are defamed in connection with those controversies. Id. It is the limited-purpose public figure that has produced the greater volume of cases and that involves more problematic judgment calls. See, e.g., Rosanova v. Playboy Enterprises, Inc., 411 F.Supp. 440, 443 (S.D.Ga.1976) (“Defining public figures is much like trying to nail a jellyfish to the wall.”), aff'd, 580 F.2d 859 (5th Cir.1978). In the instant case, there is no colorable argument that Pearce is a general-purpose public figure. It is Bell’s contention, however, that plaintiff is a limited-purpose public figure because his voluntary activities at Hutton drew him into a significant public controversy. This Circuit has adopted a three-part test for determining whether an individual is a limited-purpose public figure. Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296-98 (D.C.Cir.), cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980). First, the controversy at issue must be isolated “because the scope of the controversy in which the plaintiff involves himself" }, { "docid": "15695286", "title": "", "text": "available from several recent decisions by the Courts of Appeals. See, e. g., Jenoff v. Hearst Corp., 644 F.2d 1004 (4th Cir. 1981); Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C.Cir.), cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980). The defendants contend that Fitzgerald is a public figure only with respect to the issue of the application of dolphin technology to military and intelligence uses. Accordingly, the court’s analysis will focus upon the limited-purpose public figure aspect of Gertz and its progeny. An initial consideration is the propriety of determining the plaintiff’s status on a motion for summary judgment. In Rosenblatt v. Baer, 383 U.S. at 88, 86 S.Ct. at 677, the Court noted that the question of the plaintiff’s status in a defamation action, like questions of privilege generally, “is for the trial judge in the first instance to determine.” Consequently, if no genuine issue of material fact exists, when the evidence is viewed in the light most favorable to the plaintiff, the court may determine the plaintiff’s status on a motion for summary judgment, rather than wait until the close of the evidence. See, e. g., Rebozo v. Washington Post Co., 637 F.2d 375, 379 (5th Cir. 1981); Waldbaum v. Fairchild Publications, Inc., 627 F.2d at 1293 n. 12. The court’s first inquiry under Gertz is whether there existed the requisite public controversy. This requirement would appear to have two principal aspects. First, the topic of the alleged defamation must concern matters of some significance for persons who are not direct participants in the dispute. Second, there must have been some level of awareness of, or participation in, the subject matter of the alleged defamation by persons other than the litigants. Waldbaum v. Fairchild Publications, Inc., 627 F.2d at 1296-97. See Avins v. White, 627 F.2d 637, 647-48 (3d Cir. 1980), cert. denied, 449 U.S. 982, 101 S.Ct. 398, 66 L.Ed.2d 244 (1980). Although it is clear that the Gertz public controversy requirement is not satisfied simply when the topic involved is newsworthy, e. g., Wolston v. Reader’s Digest Association, 443 U.S. at" }, { "docid": "17681922", "title": "", "text": "N.E.2d 996 (1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2152, 64 L.Ed.2d 788 (1980); Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 366 N.E.2d 1299, 397 N.Y. S.2d 943, cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977). . See Restatement (Second) of Torts § 566 and accompanying comment. . See, e.g., Carman, Hutchinson v. Proxmire and the Neglected Fair Comment Defense: An Alternative to “Actual Malice,” 30 DePaul L.Rev. 1 (1980); Christie, Defamatory Opinions and the Restatement (Second) of Torts, 75 Mich.L.Rev. 1621 (1977); Keeton, Defamation and Freedom of the Press, 54 Tex.L.Rev. 1221 (1976); Wade, The Communicative Torts and the First Amendment, 48 Miss.L.J. 671 (1977); Note, Fact and Opinion After Gertz v. Robert Welch, Inc.: The Evolution of a Privilege, 34 Rutgers L.Rev. 81 (1981). . Cf. Gertz v. Robert Welch, Inc., supra note 17, 418 U.S. 339-348, 94 S.Ct. at 3007-3011, 41 L.Ed.2d at 805-810 (balancing the needs of the First Amendment with society’s concern for protection of reputation, to arrive at a standard of culpability in private-figure libel actions); Waldbaum v. Fairchild Publications, 201 U.S. App.D.C. 301, 305-312, 627 F.2d 1287, 1291-1298, cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980) (similar balancing, to arrive at a standard for identifying public figures). . The degree of privilege afforded false and defamatory statements of fact varies, of course, with the status of the plaintiff. Public officials and public figures can recover for defamatory factual misstatements only on clear and convincing proof that the misstatement was published either with knowledge that it was false or in reckless disregard of its truth or falsity. New York Times Co. v. Sullivan, supra note 19, 376 U.S. at 279-280, 84 S.Ct. at 726, 11 L.Ed.2d at 706; Curtis Publishing Co. v. Butts, 388 U.S. 130, 162-165, 87 S.Ct. 1975, 1995-1996, 18 L.Ed.2d 1094, 1115-1117 (1967). Private-figure plaintiffs must show at least negligence and, unless they can go further and prove actual malice, may recover only compensatory damages. Gertz v. Robert Welch, Inc., supra note 17, 418 U.S. 347-350, 94 S.Ct. at" }, { "docid": "11051691", "title": "", "text": "The latter consists of those thrust to the forefront of particular controversies and who are defamed in connection with those controversies. Id. It is the limited-purpose public figure that has produced the greater volume of cases and that involves more problematic judgment calls. See, e.g., Rosanova v. Playboy Enterprises, Inc., 411 F.Supp. 440, 443 (S.D.Ga.1976) (“Defining public figures is much like trying to nail a jellyfish to the wall.”), aff'd, 580 F.2d 859 (5th Cir.1978). In the instant case, there is no colorable argument that Pearce is a general-purpose public figure. It is Bell’s contention, however, that plaintiff is a limited-purpose public figure because his voluntary activities at Hutton drew him into a significant public controversy. This Circuit has adopted a three-part test for determining whether an individual is a limited-purpose public figure. Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296-98 (D.C.Cir.), cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980). First, the controversy at issue must be isolated “because the scope of the controversy in which the plaintiff involves himself defines the scope of the public personality.” Tavoulareas v. Piro, 817 F.2d 762, 772 (D.C.Cir.1987) (en banc). Second, the plaintiff’s role in the controversy must be examined. Waldbaum, 627 F.2d at 1297. Finally, whether the alleged defamation was germane to the plaintiff’s participation in the controversy must be determined. Id. at 1298. Applying these tests to the case at hand, it is clear that there was a significant pub-lie controversy involving the overdrafting and chaining activities by Hutton. While a public controversy involves more than a public interest, plaintiff has conceded that the plea by Hutton to a 2,000 count indictment did create a public controversy. Nevertheless, plaintiff’s participation in the controversy was not such as would make him a limited-purpose public figure. Pearce’s role in the public debate was negligible. Once the original story about the chaining and overdrafting broke in the news, plaintiff had no further involvement in the furor that developed. Furthermore, plaintiff’s name never came up until defendant Bell mentioned it prominently in his Report. A new controversy, this time directly" }, { "docid": "22305449", "title": "", "text": "must “have thrust themselves to the forefront of particular public controversies” would seem to imply a pre-existing controversy. This implication is reinforced by the stricture that “Those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.” Hutchinson v. Proxmire, supra, 443 U.S. at 135, 99 S.Ct. at 2688. See also Waldbaum v. Fairchild Publications, 627 F.2d 1287, 1295 n.19 (D.C.Cir. 1980). Thus, even in the case so strongly relied upon by the Globe, Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264 (3d Cir. 1980), where plaintiff complained about television broadcasts highly critical of the price and quality of plaintiff’s meat products, both the television stations and the Bureau of Consumer Affairs had, well before the broadcasts, received numerous telephone complaints from consumers. Id. at 273-74. In Trans World Accounts, Inc. v. Associated Press, 425 F.Supp. 814 (N.D.Cal.1977), the plaintiff corporation, engaged in debt collecting, claimed to be libelled by erroneous reports of an impending Federal Trade Commission complaint against it. Plaintiff was held to have become a public figure not because of the alleged defamatory newspaper stories, but because an “integral feature of the Commission’s enforcement effort . . . [was] the publicity which attends the issuance of proposed complaints”, the purposes being both to warn consumers and to induce prompt compliance with remedial orders. Id. at 820. See also Orr v. Argus-Press Co., 586 F.2d 1108 (6th Cir. 1978) (prior criminal proceeding); Hoffman v. Washington Post Co., 433 F.Supp. 600 (D.D. C.1977) (prior Federal Trade Commission proceeding). In the instant case the record reveals no public controversy antedating the publication of the Globe articles. The articles report that a number of owners of company-built boats had had unhappy-or worse-experiences but we know little or nothing of ongoing private controversies, not to mention public ones. This case is to be contrasted with one where “persons actually were discussing some specific question . . . [and] a reasonable person would have expected persons beyond the immediate participants in the dispute to feel the impact of its resolution.” Waldbaum v. Fairchild Publications," }, { "docid": "10601827", "title": "", "text": "is a “public figure” (as distinguished from a “public official”) and consequently cannot prevail absent proof of malice. Whether the plaintiff is a public figure is a question of law to be resolved by the court. See Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1293 n. 12 (D.C.Cir.), cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980). Here, the district judge ruled that Dameron was not a public figure. It is true, as the district court held, that Dameron can not fairly be said to have “injected” himself into the controversy. This one factor, however, is not the be-all and end-all of public figure status. Injection is not the only means by which public-figure status is achieved. Persons can become involved in public controversies and affairs without their consent or will. Air-controller Dameron, who had the misfortune to have a tragedy occur on his watch, is such a person. We conclude that Dameron did become an in voluntary public figure for the limited purpose of discussions of the Mt. Weather crash. The public-figure doctrine originated in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). In that case the Supreme Court added “public figures” to the category of plaintiffs who must plead and prove actual malice to recover in a libel action. The Court indicated that public figure status could be attained “by position alone” or “by ... purposeful activity amounting to a thrusting of [one’s] personality into the ‘vortex’ of an important public controversy,” id. at 155, 87 S.Ct. at 1991, and that such a person normally “commanded sufficient continuing public interest and had sufficient access to the means of counter-argument to be able ‘to expose through discussion the falsehood and fallacies’ of the defamatory statements.” Id. (quoting Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (Brandéis, J., dissenting)). As the public figure doctrine has developed, a distinction has grown up between general and limited-purpose public figures. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 351-52, 94 S.Ct. 2997, 3012-13, 41" }, { "docid": "15598462", "title": "", "text": "two classes of public figures in addition to government officials: general purpose and limited purpose public figures. “In some instances, an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” Gertz, 418 U.S. at 351, 94 S.Ct. at 3013. The extent of the individual’s participation in public affairs and assumption of the risk of adverse publicity determines the weight of the government’s interest in protecting, his or her reputation. Whether (and to what extent) a person is a public figure is a matter of law for the court to decide. Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 677, 15 L.Ed.2d 597 (1966); Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1293 n. 12 (D.C.Cir.), cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980). This is a difficult and sensitive exercise unsusceptible to the application of rigid or mechanical rules. See, e.g., Rosanova v. Playboy Enterprises, Inc., 411 F.Supp. 440, 443 (S.D.Ga.1976) (“Defining public figures is much like trying to nail a jellyfish to the wall.”), aff'd, 580 F.2d 859 (5th Cir.1978). In this circuit, our determination is guided by Waldbaum. A person becomes a general purpose public figure only if he or she is “a well-known ‘celebrity,’ his name a ‘household word.’ ” Waldbaum, 627 F.2d at 1294. Such persons have knowingly relinquished their anonymity in return for fame, fortune, or influence. They are frequently so famous that they “may be able to transfer their recognition and influence from one field to another.” Id. at 1294 n. 15. Thus, it is reasonable to attribute a public character to all aspects of their lives. William Tavoulareas is a highly prominent individual, especially in business circles, but his celebrity in society at large does not approach that of a well-known athlete or entertainer — apparently the archetypes of the general purpose public figure. See, e.g., [Johnny] Carson" }, { "docid": "2305412", "title": "", "text": "controversy is clearly a public controversy involving questions of “public concern.” See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761-62, 105 S.Ct. 2939, 2946-47, 86 L.Ed.2d 593 (1985) (plurality opinion); Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296-97 (D.C.Cir.) (defining a public controversy as one raising issues that might reasonably be expected to have an impact beyond the parties directly enmeshed in the particular controversy), cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980); Johnson v. Nickerson, 542 N.W.2d 506, 511 (Iowa 1996) (same). After identifying the particular controversy giving rise to the defamation, we then examine the “nature and extent” of Lundell's involvement. Bagley, 797 F.2d at 645. This inquiry is necessary to determine whether Lundell has “thrust [itself] to the forefront of [this] particular public eontroversfy] in order to influence the resolution of the issues involved.” Gertz, 418 U.S. at 345, 94 S.Ct. at 3009. The Supreme Court faced a situation very similar to this case in Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979). Hutchinson did research with primates and received research grants from three federal agencies. Id. at 115, 99 S.Ct. at 2678. Senator William Proxmire began a public campaign to expose wasteful government spending by giving a “Golden Fleece” award to federal agencies who funded what Proxmire considered to be wasteful projects. Id. at 114, 99 S.Ct. at 2677-78. After denying protection under the Speech and Debate Clause, id. at 123-33, 99 S.Ct. at 2682-87, the Court reversed lower court rulings that Hutchinson was a public figure, id. at 133-36, 99 S.Ct. at 2687-89. The Court observed that Hutchinson’s activities and public profile were like many members of his profession, and that his public writings reached a relatively small category of professionals concerned with research in human behavior. Id. at 135, 99 S.Ct. at 2688. “To the extent the subject of his published writings became a matter of controversy, it was a consequence of the Golden Fleece Award.” Id. The Court emphasized that, “those charged with defamation cannot, by their own conduct," } ]

[ { "docid": "23326818", "title": "", "text": "v. Powers, 278 U.S. 149, 49 S.Ct. 84, 73 L.Ed. 236 (1928). There, Mr. Justice Brandéis observed that the validity and construction of a lien or contract for attorneys fees presents a question of state law. 278 U.S. 149, 153-54, 49 S.Ct. 84, 85. This proposition has since been consistently adhered to by the federal courts in caselaw developed under the former Bankruptcy Act. See In re Bain, 527 F.2d 681, 685 (6th Cir. 1975); Quaker Oats Company v. Burnett, 289 F.Supp. 283, 286 (E.Tenn.1968); In re Crafty Fox, Ltd., 5 B.R. 820, 821 (W.D.Va.1980). Both the House and Senate Reports point to the conclusion that at that period in the legislative evolution of the Code, Congress certainly did not intend to effect a change by supplanting state law. Certain remarks made during the concluding Congressional debates on the Code, however, indicate that Congress subsequently clarified its intentions on the subject. These late remarks indicate that the Senate’s version of Section 506(b) was adopted with the specific intention of overriding any state law which would otherwise deny an award of attorneys fees to an oversecured creditor with a contractual right to reimbursement. Representative Edwards, the floor manager of the bill in the House of Representatives, observed that: Section 506(b) of the House amendment adopts language contained in the Senate amendment and rejects language contained in H.R.8200 as passed by the House. If the security agreement between the parties provides for attorneys fees, it will be enforceable under title 11 notwithstanding contrary law .... 124 Cong.Rec.H. 11095 (daily ed. Sept. 28, 1978) (emphasis added). Senator DeConci-ni, who managed the bill in the Senate, echoed this intention in his remarks before the Senate just prior to final enactment. See 124 Cong.Rec.S. 17411 (daily ed. Oct. 6, 1978). These remarks must be taken as the most reliable and persuasive indication of Congressional intent regarding the meaning and effect of Section 506(b). See K. Klee, Legislative History of the New Bankruptcy Code, 54 Am.Bankr.L.J. 275, 294-95 (1980). They make it quite clear that attorneys fees and costs that are agreed to by contracting parties" } ]

[ { "docid": "14573680", "title": "", "text": "allowing recovery of “any reasonable fees, costs, or charges provided for under the agreement”. 11 U.S.C. § 506(b) (emphasis added). The inclusion of the reasonableness requirement indicated Congressional intent to impose a federal standard on recovery of contractual fees, costs, and charges. In re A.J. Lane & Co., Inc., 113 B.R. at 824. “To give § 506(b)’s limitation meaning, we must read it to provide for an ex post reasonableness determination by the bankruptcy court.” Matter of 268 LTD, 789 F.2d 674, 676 (9th Cir.1986). The statute is silent, however, as to whether a claim for charges must still be valid under applicable state law. Fees, costs, and charges must be provided for under the loan agreement, but the language and legislative history of § 506(b) provide little additional guidance. An early version of § 506(b) in the House of Representatives allowed reasonable attorney’s fees “to the extent collectible under applicable law.” H.R. 8200, 95th Cong., 1st Sess. (1977). By contrast, the Senate version omitted this language. S.2266, 95th Cong., 1st Sess. (1977). Both the House and Senate Judiciary Committee Reports stated, “Subsection (b) codifies current law”, despite each containing different statutory language. Compare H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 356-57 (1977) with S.Rep. No. 95-989, 95th Cong., 2nd Sess. 68 (1978) [U.S.Code Cong. & Admin.News pp. 5787, 5854, 6311-6513], Adding further confusion, Representative Edwards and Senator De Concini, floor managers of the Bankruptcy Reform Act of 1978, stated that “if the security agreement between the parties provides for at- tomeys’ fees, it will be enforceable under Title 11 notwithstanding contrary law.” 124 Cong.Rec. H11095 (1978); See also 124 Cong.Rec. S17411 (1978) (emphasis added). The Fourth Circuit Court examined the legislative history of § 506(b) to determine whether state or federal law controls an award of attorneys’ fees to an oversecured creditor, and concluded that federal law controlled. Unsecured Creditors’ Committee v. Walter E. Heller & Company, 768 F.2d 580 (4th Cir.1985). Attorneys’ fee agreements were held enforceable under § 506(b) notwithstanding contrary state law. The court stated: [W]e conclude that ... Congress intended to abrogate the pre-existing requirement" }, { "docid": "18571690", "title": "", "text": "that “[a]dequate protection of an interest of an entity in property is intended to protect a creditor’s allowed secured claim.” (Emphasis added). 124 Cong.Rec. H11092 (daily ed. Sept. 28, 1978) (remarks.of Representative Edwards); 124 Cong.Rec. H17409 (daily ed. Oct. 6, 1978) (remarks of Senator DeConcini). It should also be noted, as this Court has previously pointed out, that nowhere in the legislative history have lessors been mentioned as being entitled to adequate protection. In re Alyucan Interstate Corp., supra, 12 B.R. at 806 n. 5. Thus, the policies underlying Chapter 11 and the legislative history of Section 361 lend no support to the view that lessors are entitled to adequate protection. However, considering the language of Section 363(e), the Court is met by the argument that a lessor is entitled to adequate protection of its property while the same is being used by the debtor in possession. It is to this issue that the Court now turns. SECTION 365 CONTAINS THE LESSOR’S EXCLUSIVE REMEDY The Relation of Sections 361, 363(e) and 365(b)(1) Considered by itself, the language of Section 363(e) would at first appear to support the construction of the Bankruptcy Code urged by First Security. Under Section 363(e), an entity having an “interest in property,” which the debtor proposes to use, is entitled to adequate protection of its interest. See In re Alpa Corp., 11 B.R. 281, 289, 7 B.C.D. 791 (Bkrtcy.D.Utah 1981). Section 363(e) provides: Notwithstanding any other provision of this section, at any time, on request of an entity that has an interest in property used, sold, or leased, or proposed to be used, sold, or leased, by the trustee, the court shall prohibit or condition such use, sale, or lease as is necessary to provide adequate protection of such interest. In any hearing under this section, the trustee has the burden of proof on the issue of adequate protection. Section 363(e) was intended to protect the collateral of secured creditors while the debtor in possession or trustee operated the business. In re Curlew Valley Associates, 14 B.R. 506, 514 n. 13, 8 B.C.D. 495 (Bkrtcy.D.Utah 1981)." }, { "docid": "18560336", "title": "", "text": "claim is secured by property the value of which after any recovery under subsection (c) of this section is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim and any reasonable fees, costs or charges provided under the agreement under which such claim arose. 11 U.S.C. § 506(b). Therefore, attorneys’ fees and costs can be recovered from the debtor’s estate if the secured creditor can demonstrate that the value of the collateral securing its claim exceeds the fees requested, the underlying agreement provides for payment of such fees and costs, and the fees sought are reasonable in amount. In re David N. Rausch, Inc., 41 B.R. 833 (Bkrtcy.D.S.D.1984); In re Rutherford, 28 B.R. 899 (Bkrtcy.N.D.Ill.1983); In re Masnorth Corp., 28 B.R. 892, 10 B.C.D. 553 (Bkrtcy.N.D.Ga.1983). Fees and costs allowed under this section are added to the value of the creditor’s allowed secured claim. H.R. Rep. No. 95-595, 95th Cong., 1st Sess. 356 (1977), 1978 U.S.Code Cong. & Admin. News, p. 6312. See e.g. In re Calzaretta, 35 B.R. 92, 94 (Bkrtcy.N.D.Ill.E.D.1983); In re Marino, 23 B.R. 321, 7 C.B.C.2d 182 (Bkrtcy.W.D.Mich.1982); In re Dye Master Realty, 15 B.R. 932, 936 (Bkrtcy.W.D.N.C.1981); In re Klein, 10 B.R. 657, 4 C.B.C.2d 412, 7 B.C.D. 668 (Bkrtcy.E.D.N.Y.1981). This concept is not a departure from prior case law, although the former Bankruptcy Act contained no express provision allowing secured creditors to add additional charges to their claims. See Vanston Bondholders Protection Comm. v. Green, 329 U.S. 156, 67 S.Ct. 237, 91 L.Ed. 162 (1946); Sexton v. Dreyfus, 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244 (1911); In re Magnus Harmonica Corp., 262 F.2d 515 (3rd Cir.1958). In this case, Deseret Federal’s secured claim includes the outstanding obligation on the second lien of $22,676.76, and attorneys’ fees and costs of $6,425.00. However, Section 506(b) provides for only the allowance, but does not specify the time or manner of payment. See 3 COLLIER ON BANKRUPTCY If 506.05 at 506-40 (15th ed. 1985); In re Simpkins, 16 B.R. 956, 965, 6 C.B.C.2d 1081," }, { "docid": "1767720", "title": "", "text": "§ 1322(b)(2) is to preserve payment rights, then it should also preserve these. Section 506 does not determine the right to payment, but only whether the claim is secured or unsecured. Chapter 13 may require full payment of some unsecured claims. Priority claims are another example. 16 B.R. at 965. This court agrees with the analysis of 11 U.S.C. § 1322(b)(2) contained in the In re Simpkins opinion. To apply the cram-down provisions of 11 U.S.C. § 506 to creditors whose claims are secured solely by the debtor’s principal residence, would in large part vitiate the protections of 11 U.S.C. § 1322(b)(2). It would also be at odds with the clear intent of Congress to protect a lender’s security when a lender is secured only by a security interest in a Chapter 13 debtor’s home. The Congressional history of 11 U.S.C. § 1322(b)(2) provides: Section 1322(b)(2) of the House Amendment represents a compromise agreement between similar provisions in the House bill and Senate amendment. Under the House amendment, the plan may modify the rights of holders of secured claims other than a claim secured by a security interest in real property that is the debtor’s principal residence. It is intended that a claim secured by the debtor’s principal residence may be treated with under section 1322(b)(5) of the House amendment. 16 B.R. at 963 (quoting 124 Cong.Rec. § 17,424 (daily ed. Oct. 6, 1978) (remarks of Sen. DeConcini); 124 Cong.Rec. Hll, 106-11,107 (daily ed. Sept. 28, 1978) (remarks of Rep. Edwards)). This court has examined the cases relied upon by the debtor in her brief in support of the confirmation of the Chapter 13 plan. This court finds that the cases of In re Tanner, 14 B.R. 933 (Bkrtcy.W.D.Pa.1981) and In re Bracken, 35 B.R. 84 (Bkrtcy.E.D.Pa.1983), are inapplicable to the case at bar since they involve Chapter 7 proceedings. The debtor also relied upon the case of In re Everett, 48 B.R. 618 (Bkrtcy.E.D.Pa.1985). In that case, the court held that, pursuant to 11 U.S.C. § 506(a) and (d), a Chapter 13 debtor may avoid a mortgage on a" }, { "docid": "6452774", "title": "", "text": "meaning of § 506(b). Therefore, I conclude that the § 506(b) reasonableness requirement does not create an exception to the requirement that the validity of claims should be determined under applicable state law. Rather, § 506(b) creates a supplemental requirement that the charge be reasonable. Two other courts and one commentator, all relying on the legislative history of § 506(b), have concluded otherwise — that reasonable attorney’s fees and costs that are agreed to by contracting parties should be allowed an oversecured claimant regardless of contrary law. Matter of 268 Limited, 789 F.2d 674, 675-677 (9th Cir.1986); In re Carey, 8 B.R. 1000, 1002-1004 (Bankr.S. D.Cal.1981); 3 Collier on Bankruptcy ¶ 506.05 (15th ed. 1988) at 506-49. I need not recount here the entire legislative history on which these authorities rely. See In re Carey, supra, at 1003-1004, and Matter of 268 Limited, supra, at 676-677, for that purpose. Both courts relied upon statements made by the floor managers of the Bankruptcy Reform Act of 1978, in which § 506(b) was enacted. With respect to that subsection, Representative Edwards and Senator De Concini said that, “[i]f the security agreement between the parties provides for attorney’s fees, it will be enforceable under Title 11 notwithstanding contrary law.” 124 Cong.Rec. H11095 (daily ed. September 28, 1978) (emphasis added); see also 124 Cong.Rec. S17411 (daily ed. October 6, 1978). From these statements, the courts and commentator concluded that the words “notwithstanding contrary law” represented the intent of the Congress and, as such, should dictate our interpretation of § 506(b). I think it is a mistake to decide this issue on the basis of the floor managers’ remarks. A court should not invoke legislative intent to interpret a statute where that statute is unambiguous and where compliance with the statute would not produce absurd results. In re George Rodman, Inc., 792 F.2d 125, 128 (10th Cir.1986); Aviation Consumer Action Project v. Washburn, 535 F.2d 101, 106-107 (D.C.Cir.1976); Peare v. McFarland, 577 F.Supp. 791, 794 (D.Ind.1984), aff'd 778 F.2d 354 (7th Cir.1985). No court should look behind an unambiguous statute for a contrary intent because," }, { "docid": "10272867", "title": "", "text": "statutes. They likewise held that any attorney’s fees awarded a secured creditor must be awarded under the usual guidelines for awarding attorney’s fees under the Bankruptcy Code. In re Hudson Shipbuilders, Inc., 794 F.2d at 1054-58; In re 268 Ltd., 789 F.2d at 675-78. See also Unsecured Creditors’ Committee v. Walter E. Heller & Co. Southeast (In re K.H. Stephenson Supply Co.), 768 F.2d 580 (4th Cir.1985); Neville v. Eufaula Bank & Trust Co. (In re U.S. Golf Corp.), 639 F.2d 1197 (5th Cir.1981); American Benefit Life Insurance Co. v. Baddock (In re First Colonial Corp. of America), 544 F.2d 1291, 1298-1300 (5th Cir.), cert. den. 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977); In re Dooley, 41 B.R. 31 (Bankr.N.D.Ga.1984); Bank of New Jersey v. Larson (In re Kennedy Mortgage Co.), 23 B.R. 466, 473-474 (Bankr.D.N.J.1982); In re Elmwood Farm, Inc., 19 B.R. 338, 341 (Bankr.S.D.N.Y.1982). Further, the court in In re 268 Ltd., supra, held as follows: To give § 506(b)’s limitation meaning, we must read it to provide for an ex post reasonableness determination by the bankruptcy court ... Section 506(b)’s legislative history also favors reading the statute as preempting the state law governing the reasonableness of fee provisions ... State law thus functions as a default rule for the determination of property interests in a bankruptcy proceeding. But-ner [Butner v. United States, 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979)] does not, however, require that we read § 506(b) to enforce contractual fee arrangements simply because the state law governing the contract would do so. Congress has chosen to treat contractual fees as part of the secured claim only to the extent that they are “reasonable.” This express displacement of any contrary pre-bankruptcy state law entitlement of the oversecured creditor takes this case outside of Butner*s default provision. 789 F.2d at 676-77. Similarly, in ITT Industrial Credit Co. v. Scarboro (In re Scarboro), 13 B.R. 439 (M.D.Ga.1981), the District Court reached the same conclusion in reference to the specific Georgia statute [formerly O.C. G.A. Section 20-506(b) (1977), now O.C.G.A. Section 13-1-11 (Michie" }, { "docid": "4787824", "title": "", "text": "from conduct, which if sanctioned by law, would secure an unconscionable advantage. Whiteco Properties, Inc. v. Theilbar, 467 N.E.2d 433 (Ind.App.3rd Dist.1984); See also, Abdulrahim v. Gene B. Glick Co., Inc., 612 F.Supp. 256 (N.D.Ind.1985); Crook v. Shearson Loeb Rhoades, Inc., 591 F.Supp. 40 (N.D.Ind.1983). This is to be compared with the clear legislative intent of the provisions of § 523(a)(2)(A). The relevant legislative statements are as follows: [t]hus, under section 523(a)(2)(A) a creditor must prove that the debt was obtained by false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insiders financial condition. Subpara-graph (A) is intended to codify current case law e.g., Neal v. Clark, 95 U.S. 704 [, 24 L.Ed. 586] (1887), which interprets “fraud” to mean actual or positive fraud rather than fraud implied in law. Sub-paragraph (A) is mutually exclusive from subparagraph (B). Subparagraph (B) pertains to the so-called false financial statement.... 124 Cong.Rec. H11095-96 (Daily Ed. Sept. 28, 1978); S17412 (Daily Ed. Oct. 6, 1978). Reprinted in 4 Norton Bankruptcy Law and Practice, Annotated Legislative History, § 523, page 397 (Callaghan and Company, 1983). The Courts have consistently held in construing § 523(a)(2)(A) that there must be proof of positive fraud and this involves showing that the acts which constitute fraud involved moral turpitude or an intentional wrong; and fraud implied in law which does not require a showing of bad faith or immorality is insufficient. See, e.g., In re Gilman, 31 B.R. 927, 929 (Bankr.S.D.Fla.1983); In re Slutzky, 22 B.R. 270, 271 (Bankr.E.D.Mich.1982); In re Montbleau, 13 B.R. 47, 48 (Bankr.D.Mass.1981); In re Byrd, 9 B.R. 357, 359 (Bankr.D.C.1981); In re McAdams, 11 B.R. 153, 155 (Bankr.D.Vt.1980). Thus, from the mere fact that a state fraud or conversion case is fully tried on its merits and judgment entered, it does not follow that the Court’s finding of fact in such a case (assuming that Court used the clear and convincing evidence standard discussed above) would collaterally estop or operate as issue preclusion in a subsequent nondischargeability proceeding in the Bankruptcy Court as for example, the" }, { "docid": "22209543", "title": "", "text": "41 B.R. 565, 574, Bankr.L.Rep. (CCH) ¶ 69,913 (Bkrtcy.E.D.N.Y.1984); In re Calumet Realty Co., 34 B.R. 922, 11 B.C.D. 361, Bankr.L.Rep. (CCH) ¶ 69,489 (Bkrtcy.E.D.Pa.1983); In re J.V. Knitting Services, Inc., 22 B.R. 543, 545 (Bkrtcy.S.D.Fla.1982); In re Richton International Corp., 15 B.R. 854, Bankr.L.Rep. (CCH) 1168,489, 5 C.B.C.2d 1019 (Bkrtcy.S.D.N.Y.1981). W. Norton, 1 NORTON BANKRUPTCY LAW AND PRACTICE § 12.32, at pt.12 — pg.49 (1981); 3 COLLIER ON BANKRUPTCY 11503.04, at 503-38 (15th ed.1984). The professional services of Teitelbaum & Gamberg were rendered on behalf of a committee of creditors attempting to fashion a nonbankruptcy workout. The committee was obviously unsuccessful in its endeavor. Moreover, this applicant is unable to point to. any direct benefit to the debtor's estate arising out of the prepetition services. It is the opinion of this Court that participation in negotiating a nonbankruptcy workout will not give rise to a claim for compensation from the estate. This is a service for which attorneys must ordinarily look to their own clients for payment. (2) The “Equitable Benefit” Doctrine. If a bankruptcy case supersedes a general assignment for the benefit of creditors or a receivership the Bankruptcy Code permits expenses incurred in those proceedings to enjoy an administrative priority. See 11 U.S.C. § 503(b)(3)(E); 11 U.S.C. § 543(c)(2). In their joint statement, the floor managers explained that “[section 503(b)(3)(E) codifies present law in cases such as Randolph v. Scruggs, 190 U.S. 533, 23 S.Ct. 710, 47 L.Ed. 1165, which accords administrative expense status to services rendered by a prepetition custodian or other party to the extent such services actually benefit the estate.” 124 Cong. Rec. H11095 (daily ed. Sept. 29, 1978) (remarks of Representative Edwards); 124 Cong.Rec. S17411 (daily ed. Oct. 6, 1978) (remarks of Senator DeConcini). (Emphasis added). It is argued, with some cogency, that this provision authorizes the bankruptcy court to make an allowance of pre-petition attorneys’ fees incurred on behalf of the unofficial creditors’ committee as an administrative expense. It is therefore not surprising that one bankruptcy court has interpreted the words “or other party” in the statement of the floor managers to" }, { "docid": "6452775", "title": "", "text": "that subsection, Representative Edwards and Senator De Concini said that, “[i]f the security agreement between the parties provides for attorney’s fees, it will be enforceable under Title 11 notwithstanding contrary law.” 124 Cong.Rec. H11095 (daily ed. September 28, 1978) (emphasis added); see also 124 Cong.Rec. S17411 (daily ed. October 6, 1978). From these statements, the courts and commentator concluded that the words “notwithstanding contrary law” represented the intent of the Congress and, as such, should dictate our interpretation of § 506(b). I think it is a mistake to decide this issue on the basis of the floor managers’ remarks. A court should not invoke legislative intent to interpret a statute where that statute is unambiguous and where compliance with the statute would not produce absurd results. In re George Rodman, Inc., 792 F.2d 125, 128 (10th Cir.1986); Aviation Consumer Action Project v. Washburn, 535 F.2d 101, 106-107 (D.C.Cir.1976); Peare v. McFarland, 577 F.Supp. 791, 794 (D.Ind.1984), aff'd 778 F.2d 354 (7th Cir.1985). No court should look behind an unambiguous statute for a contrary intent because, by using the contrary intent as a guide, the court would be favoring the unenacted history over the statute itself. Therefore, the plainer the language of the statute, the more convincing the contrary legislative history must be to overcome it. Peare v. McFarland, supra. In this ease, the statute (sections 101(4), 502(b)(1) and 506(b) of the Bankruptcy Code) is relatively clear; its ambiguity can be eliminated with rudimentary princi-pies of statutory interpretation, as was demonstrated above. The legislative history, on the other hand, is unconvincing and less reliable than the statute itself. The legislative history reveals that although the House and the Senate used different phraseology in their original versions of § 506(b), the reports of both chambers indicated that the language used was intended to preserve the status quo— that § 506(b) would not supplant state law as to the validity of contracts for attorney’s fees. The differences were worked out without formal conference, and, in its final version, § 506(b) incorporated the phraseology of the Senate bill. See In re Carey, supra, at" }, { "docid": "23462703", "title": "", "text": "so long as a check is presented for payment within 30 days of delivery and is duly honored, the date of payment relates back to the date of delivery. A problem of interpretation arises however since the legislative history to paragraphs (c)(2) and (c)(4) is silent on the issue of when a transfer by check occurs. Courts that have considered this issue take one of three approaches. The first line of cases holds that a transfer by check generally occurs on the date of delivery under paragraphs (c)(2) and/or (c)(4) as well as paragraph (c)(1). See In re O’Neill, 729 F.2d 35, 11 B.C.D. 1027 (1st Cir.1984) (decision under § 547(c)(2); In re Gold Coast Seed Co., 30 B.R. 551, 10 B.C.D. 1049 (9th Cir.Bankr.App.1983) (decision under § 547(c)(4)); In re Georgia Steel, Inc., 38 B.R. 829, 11 B.C.D. 1163 (Bankr.M.D.Ga.1984) (decision under § 547(c)(2) and (c)(4)); In re Philadelphia Light Supply Co., 33 B.R. 734, 11 B.C.D. 284 (Bankr.E.D.Pa.1983) (decision under § 547(c)(4)); In re Hoover, 32 B.R. 842, 10 B.C.D. 1347 (Bankr.W.D.Okla.1983) (decision under § 547(c)(2)); In re Saco Local Development Corp., 25 B.R. 876 (Bankr.D.Me.1982) (decision under § 547(c)(2); In re Garland, Inc., 19 B.R. 920 (Bankr.E.D.Mo.1982) (decision under § 547(c)(4)). These cases generally rely on a statement made in the legislative debates on the Bankruptcy Reform Act of 1978: Contrary to language contained in the House Report, payment of a debt by means of a check is equivalent to a cash payment, unless the check is dishonored. Payment is considered to be made when the check is delivered for purposes of sections 547(c)(1) and (2). 124 Cong.Rec. S17414 (daily ed. Oct. 6, 1978) (statement of Sen. DeConcini); 124 Cong.Rec. H11097 (daily ed. Sept. 28, 1978) (statement of Rep. Edwards). The first four cited cases also rely on policy considerations behind the enactment of paragraphs (c)(2) and (c)(4), namely, to encour age trade creditors to continue dealing with troubled businesses by insulating normal business transactions from the trustee’s avoiding power. Lastly, this approach is said to accord with commercial reality “[sjince checks are normally considered present payments" }, { "docid": "10219083", "title": "", "text": "the amount of the allowed secured claim. To the extent the deferred payments exceed the value of the allowed amount of the secured claim and the debtor subsequently defaults, the lien will not secure unaccrued interest represented in such deferred payments. 124 Cong.Rec. H11,107 (daily ed. Sept. 28, 1978) (remarks of Rep. Edwards); 124 Cong.Rec. § 17,423 (daily ed. Oct. 6, 1978) (remarks of Sen. De Concini). The issue in the cases sub judice is the proper determination of interest rates for secured claims; specifically, whether such rates must be the same as those fixed by contract. Bankruptcy Code § 506[b], applicable in Chapter 13 as well as in Chapter 7 and Chapter 11 cases, see Bankruptcy Code § 103[a], allows interest on a secured claim to the extent that the collateral has a value greater than the amount of the underlying claim. See, e.g., In re Smith, 4 B.R. 12, 13, 6 B.C.D. 424, 426, 2 C.B.C.2d 77, 79 (Bkrtcy.E.D.N.Y.1980). Bankruptcy Code § 506[a] provides that an undersecured creditor has a secured claim to the extent of the value of his collateral, and an unsecured claim for the balance of his claim. Interest on un-dersecured claims is not allowed. 11 U.S.C. § 506[b]. See In re American Mariner Indus., 10 B.R. 711, 7 B.C.D. 614, 614 (Bkrtcy.C.D.Cal.1981), In re Anderson, 6 B.R. 601, 608, 6 B.C.D. 1155 (Bkrtcy.S.D.Ohio 1980). In a legislative obeisance to the time-value of money, § 1325[a][5][B][ii] requires that the creditor receive payments with the same economic value on the effective date of the plan as a lump-sum payment equal to the value of the collateral. That, in fact, is the very meaning of the term the “present value” of the allowed secured claim. Otherwise put, “present value” is the allowed amount of the creditor’s secured claim “plus incremental adjustments.” In re Crockett, 3 B.R. 365, 368 (Bkrtcy.N.D.Ill.1980). The problem of determining the present value of the proposed deferred cash payments, as of the effective date of the plan, whereby, as mandated by § 1325[a][5][B][ii], the creditor will receive economic value equivalent to the value of" }, { "docid": "23702812", "title": "", "text": "construction of § 506(b) seems misplaced. The language of § 726(a)(5) implies a construction opposite that made by the court in Marx. Since § 726(a)(5) expressly requires the payment of interest at the legal rate, the omission in § 506(b) of any reference to the legal rate, coupled with the “provided under the agreement” language immediately following the provision for interest in § 506(b), suggest strongly that the legislative intention was that interest under 506(b) is to be at the contractual rate. Id. at 282. These criticisms are persuasive. Relying on Marx’s attempt to apply Section 726(a)(5) to give meaning to Section 506(b), debtors argue that the appropriate rate of interest under Section 506(b) is the legal rate. As noted by the commentators just quoted, however, Section 726(a)(5) does not support the conclusion reached in Marx. Moreover, even if the “legal rate” of interest is the appropriate rate to be applied under Section 506(b), that term is not defined by the Bankruptcy Code and may well mean the contract rate of interest where there is a contract. See Fortgang and King, “The 1978 Bankruptcy Code: Some Wrong Policy Decisions,” 56 N.Y.U.L. Rev. 1148, 1151-1153 (1981). The overwhelming majority of courts which have interpreted or applied Section 506{b)’s provision for interest have held or assumed that the contract rate of interest would apply where there is a contract. See In re American Metals Corp., 31 B.R. 229 (Bkrtcy.D.Kan.1983); In re Langley, 30 B.R. 595 (Bkrtcy.N.D.Ind.1983); In re Rutherford, 28 B.R. 899 (Bkrtey.N.D.Ill.1983); In re Masnorth Corp., 28 B.R. 892 (Bkrtcy.N.D.Ga.1983); In re Anderson, 28 B.R. 231 (Bkrtcy.N.D.Ga.1983); In re Redeker, 27 B.R. 734 (Bkrtcy.D.Kan.1983); In re Elmwood Farm, Inc., 19 B.R. 338 (Bkrtcy.S.D.N.Y.1982); In re McLean, 17 B.R. 1 (Bkrtcy. W.D.Mo.1981); In re Dye Master Realty, Inc., 15 B.R. 932 (Bkrtcy.W.D.N.C.1981); In re Davis, 14 B.R. 226 (Bkrtcy.D.Me.1981); In re Roll, 13 B.R. 918 (Bkrtcy.D.Haw. 1981); In re Caudle, 13 B.R. 29 (Bkrtcy.W.D.Tenn.1981); In re Eastern Equipment Co., 11 B.R. 732 (Bkrtcy.S.D.W.Va.1981); In re American Properties, Inc., 8 B.R. 68 (Bkrtcy.D.Kan.1980); In re Bagley, 6 B.R. 387 (Bkrtcy.N.D.Ga.1980); In re Smith," }, { "docid": "23702813", "title": "", "text": "a contract. See Fortgang and King, “The 1978 Bankruptcy Code: Some Wrong Policy Decisions,” 56 N.Y.U.L. Rev. 1148, 1151-1153 (1981). The overwhelming majority of courts which have interpreted or applied Section 506{b)’s provision for interest have held or assumed that the contract rate of interest would apply where there is a contract. See In re American Metals Corp., 31 B.R. 229 (Bkrtcy.D.Kan.1983); In re Langley, 30 B.R. 595 (Bkrtcy.N.D.Ind.1983); In re Rutherford, 28 B.R. 899 (Bkrtey.N.D.Ill.1983); In re Masnorth Corp., 28 B.R. 892 (Bkrtcy.N.D.Ga.1983); In re Anderson, 28 B.R. 231 (Bkrtcy.N.D.Ga.1983); In re Redeker, 27 B.R. 734 (Bkrtcy.D.Kan.1983); In re Elmwood Farm, Inc., 19 B.R. 338 (Bkrtcy.S.D.N.Y.1982); In re McLean, 17 B.R. 1 (Bkrtcy. W.D.Mo.1981); In re Dye Master Realty, Inc., 15 B.R. 932 (Bkrtcy.W.D.N.C.1981); In re Davis, 14 B.R. 226 (Bkrtcy.D.Me.1981); In re Roll, 13 B.R. 918 (Bkrtcy.D.Haw. 1981); In re Caudle, 13 B.R. 29 (Bkrtcy.W.D.Tenn.1981); In re Eastern Equipment Co., 11 B.R. 732 (Bkrtcy.S.D.W.Va.1981); In re American Properties, Inc., 8 B.R. 68 (Bkrtcy.D.Kan.1980); In re Bagley, 6 B.R. 387 (Bkrtcy.N.D.Ga.1980); In re Smith, 4 B.R. 12 (Bkrtcy.E.D.N.Y.1980). Only Marx and Minguey hold to the contrary. Collier’s opinion is that “postpetition interest [under Section 506(b)] should be computed at the rate provided in the agreement under which the claim arose, the so-called ‘contract rate’ of interest.... this result appears consistent with prior case law.” COLLIER, supra at 506-36 to 506-37 (citing cases) Accord, 3 COLLIER BANKR.PRACT. GUIDE ¶ 52.17 at 52-28 (1983) (“[I]nterest on [an oversecured claim] is recoverable from the excess collateral at the rate chargeable under the security agreement.”); Blum, “Treatment of Interest on Debtor Obligations in Reorganizations Under the Bankruptcy Code,” 50 U.CHI.L.REV. 430, 432 n. 9 (1983) (“The Code still allows interest on secured obligations, at the contract rate, up to the value of the collateral. 11 U.S.C. § 506(b)”). See also Fortgang and King, supra at 1152 n. 18 (“Courts under the Old Act routinely awarded postpetition interest at the contract rate in appropriate cases.”) Based on these authorities, and for the reasons already explained, Northwest’s allowed secured claim will bear interest, if debtors’" }, { "docid": "12577803", "title": "", "text": "506(b) of the House amendment adopts language contained in the Senate amendment and rejects language contained in H.R. 8200 as passed by the House. If the security agreement between the parties provides for attorneys fees, it will be enforceable under title 11 notwithstanding contrary law... ” Most courts agree that legislative intent was that § 506(b) apply notwithstanding contrary state law. See In re Virginia Foundry Co., Inc., 9 B.R. 493, 496-497 (D.C. W.D.Va.1981); In re Carey, 8 B.R. 1000, 7 B.C.D. 310, 311-312, CCH ¶ 67,847 (Bkrtcy. S.D.Cal.1981); In re Scarboro, 13 B.R. 439, 442, 8 B.C.D. 72, 4 C.B.C.2d 1222 (D.C.M.D. Ga.1981). The purportedly contrary cases cited by the trustee and creditors’ committee are distinguishable or actually in accord with the above cited cases. In re East Side Investors, supra.; Security Mortgage Co. v. Powers, supra.; and Rubenstein v. Nourse, 70 F.2d 482 (8th Cir.1934) are distinguishable as cases decided under the Bankruptcy Act of 1898. In re Cipriano, 8 B.R. 697, CCH ¶67828 (Bkrtcy.D.R.1.1981) is a distinguishable Chapter 13 ease regarding the allowability of attorney fees to a creditor for its contributions in a valuation hearing. Butner v. U.S., 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979) was an Act case regarding whether state law or a federal rule of equity should determine a mortgagee’s rights to rents collected. Furthermore, commentators agree that § 506(b) provides for the enforcement of attorneys’ fee clauses in security agreements although such clauses may be invalid under state law. See 3 Collier on Bankruptcy ¶ 506.06 (15th ed.) at 506-16 et seq.; Clark, The Law of Secured Transactions under the Uniform Commercial Code, ¶ 6.1 (1980) at 6-4. Therefore, this Court finds that Heller’s attorney fees provided for in the security agreement are allowable as secured under § 506(b) notwithstanding contrary Kansas law and irrespective of which state’s law governs the note and security agreement. Given that Heller’s attorney fees are allowable, the next issue is whether the amount requested, $39,924.75, is “reasonable” within the meaning of § 506(b). This requirement, that the fee be reasonable, gives the Court" }, { "docid": "12577802", "title": "", "text": "1st Sess. (1977) 356-357, S.R. 95-989, 95th Cong., 2d Sess. (1978) 68, U.S. Code Cong. & Admin.News 1978, p. 5787. Clearly, the then prevailing case law was that state law determined the allowance of attorney fees under secured instruments. Security Mortgage Co. v. Powers, 278 U.S. 149, 153-54, 49 S.Ct. 84, 85-86, 73 L.Ed. 236 (1928); In re East Side Investors, 7 B.R. 515, 517 (D.C.N.D.Ga.1980) [Act of 1898 case]. Thus, the House and Senate Reports are not accommodative in determining legislative intent. However, the final statements with respect to the passage of a bill are generally more accurate expressions of legislative intent than earlier House or Senate Reports out of committee. See K. Klee, “Legislative History of the New Bankruptcy Code”, 54 Am.Bankr.L.J. 275, 294-295 (1980). Here, the final statements of Rep. Edwards and Sen. DeConcini, the managers of the respective bills in the House and Senate, are consistent. They agree that § 506(b) applies irrespective of state law, as Rep. Edwards stated in 124 Cong.Rec. H 11095 (daily ed. Sept. 28, 1978): “Section 506(b) of the House amendment adopts language contained in the Senate amendment and rejects language contained in H.R. 8200 as passed by the House. If the security agreement between the parties provides for attorneys fees, it will be enforceable under title 11 notwithstanding contrary law... ” Most courts agree that legislative intent was that § 506(b) apply notwithstanding contrary state law. See In re Virginia Foundry Co., Inc., 9 B.R. 493, 496-497 (D.C. W.D.Va.1981); In re Carey, 8 B.R. 1000, 7 B.C.D. 310, 311-312, CCH ¶ 67,847 (Bkrtcy. S.D.Cal.1981); In re Scarboro, 13 B.R. 439, 442, 8 B.C.D. 72, 4 C.B.C.2d 1222 (D.C.M.D. Ga.1981). The purportedly contrary cases cited by the trustee and creditors’ committee are distinguishable or actually in accord with the above cited cases. In re East Side Investors, supra.; Security Mortgage Co. v. Powers, supra.; and Rubenstein v. Nourse, 70 F.2d 482 (8th Cir.1934) are distinguishable as cases decided under the Bankruptcy Act of 1898. In re Cipriano, 8 B.R. 697, CCH ¶67828 (Bkrtcy.D.R.1.1981) is a distinguishable Chapter 13 ease regarding the" }, { "docid": "12574644", "title": "", "text": "each case for the $50 attorney’s fee. A hearing was conducted and the Court determines that in each case the debtors had equity in their homestead so that Trans-america is overseeured within the meaning of § 506(b). The services performed by the attorney of merely filing a proof of claim are not required to be performed by an attorney and such type of services are not forbidden for nonlawyers. CONCLUSIONS OF LAW I. THE VALIDITY AND CONSTRUCTION IS A MATTER OF STATE LAW It is well established that in a bankruptcy proceeding the validity and construction of a clause in a note or mortgage providing for attorney’s fees is a matter of state law. Security Mortgage Company v. Powers, 278 U.S. 149, 49 S.Ct. 84, 73 L.Ed. 236 (1928); In re Morris, 602 F.2d 826 (8th Cir.1979); In re Atlanta Int’l Raceway, Inc., 513 F.2d 546, 548 (5th Cir.1975); In re Sonoma V., 23 B.R. 789 (9th Cir.Bkrtcy.App. 1982); In re Dye Master Realty, Inc., 15 B.R. 932, 8 B.C.D. 475 (Bkrtcy.W.D.N.C. 1981); In re Crafty Fox Ltd., 5 B.R. 820, 821 (D.C.W.D.Va.1980). II. ALABAMA LAW CONTROLS VALIDITY AND CONSTRUCTION The language in the mortgages is limited in that attorney’s fees are allowed for “advertising, selling and conveying, including such attorney’s fees as are allowed by law”, so that under the language of such mortgage an attorney’s fee would only be allowed if there was a foreclosure sale and not for filing of a proof of claim or attendance of any hearings. Consequently, the language in the mortgages does not authorize the $50 attorney’s fee in these three cases. However, the case of Taylor v. Jones, 290 Ala. 268, 276 So.2d 130, cert. denied, 414 U.S. 879, 94 S.Ct. 126, 38 L.Ed.2d 124 (1973), allowed the recovery of reasonable attorney’s fees where the language in the note so authorized even though the language of the mortgage did not permit a recovery and, further the claim for attorney’s fees became a part of the main debt. The language in the notes in the three cases is substantially similar by providing that" }, { "docid": "23666562", "title": "", "text": "debt by the debtor is not actually in the nature of alimony, maintenance, or support of debtor’s spouse, former spouse, or child. 124 Cong.Rec. H11096 (daily ed. Sept. 28, 1978) (remarks of Rep. Edwards) (emphasis added). See also 124 Cong.Rec. S17412 (daily ed. Oct. 6, 1978) (remarks of Sen. De Concini). These concluding observations must be taken as the most authoritative and persuasive indicator of congressional purpose in this area. See Klee Legislative History of the New Bankruptcy Code, 54 Am.Bankr.L.J. 275, 294-95 (1980). Admittedly, there are suggestions in the legislative history, and in the section itself, evidencing a concern that payment be made directly to a spouse or former spouse. See House Report, supra, at 364; 11 U.S.C. § 523(a)(5)(A); In re Knabe, supra, 8 B.R. 53 (quoting from the early congressional hearings). Undeniably, however, there is a corresponding congressional desire that obligations in favor of certain third party creditors should survive discharge. While this does make the matter appear somewhat contradictory in nature, the Court concludes that Congress did not intend that the form of a creditor — debtor relationship should in every case override what is in substance, an attempt to provide alimony or support. Here, the debtor was ordered by the state court to in effect “assume” his former spouse’s obligation to Prante. The Court concludes that this will not preclude a determination that the debt is nondischargeable, if that arrangement can be characterized as payment of alimony or support and maintenance. B. Payment of the Attorneys Fees as Payment of Alimony or Support and Maintenance The question of whether the fees owed Prante actually are in the nature of alimony or support involves an analysis of the claim which underlies that obligation. See e. g, In re Fox, 5 B.R. 317, 320, 6 B.C.D. 709, 711 (Bkrtcy., N.Tex.1980). This inquiry is strictly a matter of federal law. See e. g., In re Warner, 5 B.R. 434, 439, 6 B.C.D. 788, 791 (Bkrtcy., Utah 1980). The Court must focus on the substance of the result achieved in the state court. See In re Warner, supra, 5" }, { "docid": "22209529", "title": "", "text": "security holder, or a committee representing creditors or equity security holders other than a committee appointed under section 1102 of this title, in making a substantial contribution in a case under chapter 9 or 11 of this title; or (E)a custodian superseded under section 543 of this title, and compensation for the services of such custodian; (4) reasonable compensation for professional services rendered by an attorney or an accountant of an entity whose expense is allowable under paragraph (3) of this subsection, based on the time, the nature, the extent, and the value of such services, and the cost of comparable services other than in a case under this title, and reimbursement for actual, necessary expenses incurred by such attorney or accountant; Subsection (b) is derived mainly from section 64a(l) of the Bankruptcy Act, with some changes. S.Rep. No. 95-989, 95th Cong., 2d Sess. 66 (1978), 1978 U.S.Code Cong. & Admin.News, p. 5787, 5852. The language is relatively clear; it permits certain creditors, indenture trustees, or unofficial committees to receive as an administrative expense their actual, necessary expenses for a “substantial contribution” to a case under Chapter 9 or Chapter 11. See 3 COLLIER ON BANKRUPTCY 11 503.04, at 503-36 (15th ed. 1984). Subsection (b) also contemplates that certain qualifying expenses incurred prepetition receive an administrative priority. See 11 U.S.C. § 503(b)(3)(E); Matter of Pride Foods Inc., 22 B.R. 356, 9 B.C.D. 480, 6 C.B.C.2d 1412 (Bkrtcy.D.Neb.1982); 124 Cong.Rec. H11094-95 (daily ed. Sept. 28, 1978) (remarks of Rep. Edwards); 124 Cong.Rec. S17411 (daily ed. Oct. 6, 1978) (remarks of Sen. DeConcini). The legislative history of Section 503(b) indicates that Congress intended to adhere to the “direct benefit” rule of decisions under Sections 242 and 243 of the Bankruptcy Act, without the requirement of a confirmed plan, and, with respect to superseded custodianships, to the “equitable benefit” doctrine of Randolph v. Scruggs, 190 U.S. 533, 23 S.Ct. 710, 47 L.Ed. 1165 (1903). See 124 Cong.Rec. H11095 (daily ed. Sept. 28, 1978) (remarks of Representative Edwards); 124 Cong. Rec. S17411 (daily ed. Oct. 6, 1978) (remarks of Senator DeConcini). (1) The “Direct" }, { "docid": "23370115", "title": "", "text": "5787, 5873. The joint explanatory statement of the floor managers of the compromise bill notes only that Section 546(a) was derived from Section 546(c) of the Senate bill. 124 Cong.Rec. S 17,413-14 (daily ed. Oct. 6, 1978) (remarks of Sen. DeConcini); 124 Cong.Rec. H 11,-097 (daily ed. Sept. 28, 1978) (remarks of Rep. Edwards). While the avoiding powers of the bankruptcy trustee were completely rewritten by Congress in 1978, much is simply a restatement of existing law. Levin, An Introduction to the Trustee's Avoiding Powers, 53 Am.Bankr.L.J. 173, 198-99 (1979). Where Congress intended to make significant changes, as for example when it completely overhauled the preference section, it did so after much consideration and discussion. See, e.g., Report of the Corn- mission on the Bankruptcy Laws of the United States, H.R.Doc. No. 93-137, 93d Cong., 1st Sess., Pt. I, at 201-11 (1973); H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 177-79 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News, pp. 6138-40. The legislative history thus affords no basis for concluding that Congress intended to fundamentally change existing law with respect to limitations on avoidance power actions by trustees. B. Policy Reasons for Extending the Statute'of Limitations Upon Conversion to Chapter 7 Section 546(a) provides that an action or proceeding under Section 544 (rights derived from hypothetical judicial lien creditor), 545 (to avoid fixing of certain statutory liens), 547 (to avoid a preference), 548 (to avoid a fraudulent conveyance), or 553 (to recover when setoff is disallowed) may not be commenced after the earlier of two years after the appointment of a trustee and the time the case is closed or dismissed. This period applies only to actions by trustees, and not actions by others such as debtors in possession in Chapter 11 cases who perform the duties and exercise the functions of a trustee under Section 1107. P. Murphy, CREDITORS’ RIGHTS IN BANKRUPTCY § 14.03, at 14-5 (1985). See Matter of Silver Mill Frozen Foods, Inc., 23 B.R. 179, 181, 9 B.C.D. 786, 7 C.B.C.2d 443 (Bkrtcy.W.D.Mich.1982); In re One Marketing Co., 17 B.R. 738, 739-40, 8 B.C.D. 917, 5 C.B.C.2d" }, { "docid": "22102297", "title": "", "text": "cause” other than for lack of adequate protection. See H.R.Rep. No. 95-595, supra, at 344; S.Rep. No. 95-989, supra, at 54; 124 Cong.Rec. H11093, H11108 (daily ed. Sept. 28, 1978) (remarks of Representative Edwards); 124 Cong.Rec. S17409, S17425 (daily ed. Oct. 6, 1978) (remarks of Senator DeConcini). Collier observes that \"[t]o some extent, the Code attempts to follow the practice in the [former] Rules by requiring a showing of cause by the party requesting relief under Section 362(d)(1) and then in Section 362(g) placing the burden of proof (risk of non persuasion) on the party opposing relief for all issues other than that of ‘the debtor’s equity in property.’” 2 COLLIER ON BANKRUPTCY U 362.10, at 362-58 (15th ed. 1984). This Court holds that one who seeks relief from the automatic stay must, in the first instance, establish a legally sufficient basis, i.e., “cause,” for such re- lief. The burden then lies with the debtor to demonstrate that it is entitled to the stay. See In re Kane, supra, 27 B.R. at 902; In re the Overmeyer Company, Inc., supra, 2 B.C.D. at 992; 2 COLLIER ON BANKRUPTCY, supra, at ¶ 362.10. See also In re Ludwig Honold Mfg. Co., 33 B.R. 722, 723 (Bkrtcy.E.D.Pa.1983); In re Ram.Mfg., Inc., 32 B.R. 969, 971 (Bkrtcy.E.D.Pa.1983); In re Food Fair, Stores, Inc., 16 B.R. 387, 291 (Bkrtcy.S.D.N.Y.1982); In re Wynn Homes, Inc., 14 B.R. 520, 522-23 (Bkrtcy.D.Mass. 1981); In re Rutter, 9 B.R. 878, 879 (Bkrtcy.E.D.Pa.1981); In re Soltoff, 1 B.R. 180, 182 (Bkrtcy.E.D.Pa.1979); In re Oakdale Associates, 5 B.C.D. 1136, 1139 (Bkrtcy.E.D.N.Y.1979); Matter of Nevada Towers Associates, 3 B.C.D. 583, 584-85 (Bkrtcy.S.D.N.Y.1977). A creditor’s mere unsupported allegation that continuance of the stay will cause it irreparable harm will not suffice. APPLICATION TO THIS PROCEEDING In applying the foregoing considerations to the facts of this case, the Court finds that movants have failed to make out a prima facie case for granting relief from the automatic stay “for cause.” The determination of “cause” is one that necessarily requires exercise of judicial judgment and involves mixed questions of fact and law. Kennedy, “Automatic" } ]

[ { "docid": "4068727", "title": "", "text": "other for permission to disclose documents or other information in a manner other than as contemplated by this Stipulation or from asking a court for such relief.” The court, however, views this problem in a different light. Rather than deciding whether relief is appropriate pursuant to the stipulation, the issue is the effect to be given the agreement between the parties that has not been “So Ordered” by the court. The stipulation affects one of the basic premises of discovery: that “discovery must take place in the public unless compelling reasons exist for denying the public access to the proceedings.” American Tel. & Tel. Co. v. Grady, 594 F.2d 594, 596 (7th Cir.1978) (per curiam), cert. denied, 440 U.S. 971, 99 S.Ct. 1533, 59 L.Ed.2d 787 (1979). Protective orders, which deny such public access, are issued only where good cause is shown. United States v. International Business Machines Corp., 67 F.R.D. 40, 46 (S.D.N.Y.1975); Fed.R.Civ.P. 26(c); see in re Halkin, 598 F.2d 176, 191 (D.C.Cir.1979). The enforcement of the stipulation would eliminate the requirement of demonstrating a compelling reason for denying public access. Such a practice cannot be accepted. Although accepting this stipulation would certainly reduce the court’s burden in supervising discovery, it would be improper to grant a protective order without first determining there is good cause as required by Rule 26(c). Note, Nonparty Access to Discovery Materials in the Federal Courts, 94 Harv.L.Rev. 1085, 1089 (1981) [hereinafter cited as Nonparty Access]. Further, this approach to stipulations of confidentiality is in accord with a recent ruling in the court of appeals. Judge Pratt, sitting as a single judge, was presented with a stipulation of confidentiality to be “So Ordered.” Judge Pratt de dined to “So Order” the agreement because the parties did not indicate why the information warranted protection, s.a.r.l. Orliac v. Berthe, 765 F.2d 30 (2d Cir.1985). Even if the court had “So Ordered” the stipulation, the order could not withstand appellate scrutiny because of the failure to establish good cause. In Martindell v. International Tel. & Tel. Corp., 594 F.2d 291 (2d Cir.1979), the court noted that" } ]

[ { "docid": "5870904", "title": "", "text": "the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to the business and to its competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.” Haber, 188 F.3d at 44 (internal quotation marks and citation omitted). “A trade secret ‘differs from other secret information in a business in that it is not simply information as to single or ephemeral events in the conduct of the business [but rather] is a process or device for continuous use in the operation of the business.’ ” Bear, Stearns Funding, Inc. v. Interface Group-Nevada, Inc., 361 F.Supp.2d 283, 305 (S.D.N.Y. 2005) (quoting Restatement (First) of Torts § 757 cmt. b.); Lehman v. Dow Jones & Co., 783 F.2d 285, 298 (2d Cir. 1986) (holding that a trade secret is information “used in running the business ... like the formulas or processes used in manufacturing”). Here, the Plaintiff has set forth facts plausibly alleging that the information allegedly utilized by the Defendant constituted “confidential information” and/or “trade secrets.” In the complaint, the Plaintiff identifies the alleged confidential information as “checkout counter programs and its business model, plan-o-grams and designs, methods and procedures ... including creating and designing the specific Program for Unified.” (Compl., ¶ 85.) In addition, the Plaintiff alleges that: it “has taken reasonable efforts to guard the secrecy of such information” by “restrict[ing] access to certain information even within the company, using password protected computer systems and limiting remote access to those with authority, and limiting access to documents containing Confidential Information within Dorset”. Also, it has done so by requiring Unified and other Dorset customers, “to execute a Confidentiality and Non-Disclosure Agreement which defines such confidential and proprietary information and which contains several express restrictive covenants, including specific covenants of non-disclosure of trade secrets and confidential and proprietary information”. (Compl., ¶¶ 130-32.) Finally, the Plaintiff alleges that it “has spent tens of thousands of dollars in implementing these safeguards”" }, { "docid": "16364149", "title": "", "text": "that in order to establish that documents properly come within “confidential information” under 5 U.S.C. § 552(b)(4) (Freedom of Information Act) and 21 U.S.C. §§ 331(j) and 360j(c) (Food, Drug & Cosmetic Act), actual competition must be shown as well as that “substantial competitive injury would likely result from disclosure.” Anderson, 907 F.2d at 947, quoting National Parks & Conservation Ass’n. v. Kleppe, 547 F.2d 673, 679 (D.C.Cir.1976). In Waelde v. Merck, Sharp & Dohme, 94 F.R.D. 27, 29 (E.D.Mich.1981) the court pointed out that “to be completely exempt from disclosure by the FDA, the contents of an NDA file must be a trade secret or confidential information as well as not previously publicly disclosed.” (Emphasis added.) The Utah Supreme Court adopted Restatement of Torts § 757 and defined trade secrets in J & K Computer Systems, Inc. v. Parrish, 642 P.2d 732, 735 (Utah 1982) as “any formula, patent, device, plan or compilation of information which is used in one’s business and which give him an opportunity to obtain an advantage over competitors who do not know it.” The Supreme Court of Iowa in Far-num v. G.D. Searle & Co., 339 N.W.2d 384, 389 (Iowa 1983) also adopted the Restatement definition, and quoted the factors which the Restatement enumerates in comment b thereof: 1) the extent to which the information is known outside of [the party’s] business; 2) the extent to which it is known by [those] involved in his business; 3) the extent of measures taken by him to guard the secrecy of the information; 4) the value of the information to him and to his competitors; 5) the amount of effort or money expended by him in developing the information; 6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Confidential information is often regarded as information which if disclosed, “will cause a ‘clearly defined, serious injury’ to the defendant's business.” Under the above formulations, Upjohn cannot claim trade secrets or confidentiality as to information set forth in the case report forms (“CRFs”). Typically, these are not written or filled" }, { "docid": "4878722", "title": "", "text": "A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which give him an opportunity to obtain an advantage over competitors, who do not know or use it 4 Restatement of Torts § 757, at 5 (1939). The Restatement also details a number of factors that may be employed by a court in determining whether particular data rises to the level of a trade secret: (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. 4 Restatement of Torts § 757, Comment b, at 6 (1939). In Ashland the district court, applying this definition, found that an oil company’s reserve estimates for natural gas leases and contracts on federal lands constituted a trade secret of great competitive value. 409 F.Supp. at 303. The court refused, however, to enjoin the FTC under section 6(f) from releasing the information to a House subcommittee investigating a natural gas shortage because there was no showing that the information would be made public if it were turned over to the Congress and section 6(f) only prohibits public disclosure of trade secrets. Id. at 308. On appeal all parties conceded that the information was a trade secret of great competitive value to Ashland. 548 F.2d at 979. The legislative history of the Federal Trade Commission Act does not clarify what Congress intended to fall within the definition of a trade secret. It appears to the Court, however, that the production, shipment, pricing, customer, and marketing data contained in the Mitchell transcript do not constitute trade secrets within the meaning of section 6(f) of the Federal Trade Commission Act." }, { "docid": "22273796", "title": "", "text": "in camera review is a highly appropriate and useful means” of handling this kind of privilege claim). At each point both sides must consider the effect of a protective order restricting disclosure to the plaintiff and the plaintiffs attorney, or to the plaintiffs attorney alone. Such an order can mitigate many if not all of the oft-alleged injuries to the police and to law enforcement. See Kelly, supra, 114 F.R.D. at 666; Mercy v. County of Suffolk, 93 F.R.D. 520, 524 (E.D.N.Y.1982) (sample order). Protective orders should not be granted without good reason. They restrict public access to discovery materials and depart from the “general proposition [that] pretrial discovery must take place in the public unless compelling reasons exist for denying the public access to the proceedings.” American Telephone & Telegraph Co. v. Grady, 594 F.2d 594, 596 (7th Cir.1978), cert. denied, 440 U.S. 971, 99 S.Ct. 1533, 59 L.Ed.2d 787 (1979). Under Fed.R.Civ.P. 26(c) the burden is on the party seeking the protective order to show “good cause,” with particular factual support, why the order is necessary. See General Dynamics Corp. v. Selb Manufacturing Co., 481 F.2d 1204, 1212 (8th Cir.1973). Lawfulness of police operations is a matter of great concern to citizens in a democracy and protective orders must not be granted without that public interest in mind. The parties and the court should consider carefully the benefits and costs of a properly designed protective order. “Routinely” issuing protective orders, see Kelly, supra, 114 F.R.D. at 662, will not necessarily promote justice or the proper balance of interests; in particular cases, the court may find them an effective way to permit discovery without undermining law enforcement. The court should also be alert for opportunities to redact the submitted documents to remove sensitive bits of information not useful to the plaintiffs. An obvious example is the desirability of deleting officers’ home addresses when the lawsuit involves past violence between the officers and the plaintiffs. Disclosure of that information, in some cases, might put the officers at risk without protecting any of the plaintiffs’ legitimate interests in discovery. Such redactions" }, { "docid": "4878721", "title": "", "text": "U.S.C. § 46(f) (1976). Because the FTC has indicated that names of customers will be deleted from the Mitchell transcript before its release, the question becomes whether the transcript contains trade secrets precluded from disclosure under section 6(f). If the transcript contains trade secrets, its release would violate section 6(f) and the provisions of the Trade Secrets Act. If the transcript did not contain trade secrets, its release would be permitted by section 6(f) and section 1905 would not be violated because the release was “authorized by law.” In order to prevent defendants from releasing the Mitchell transcript, Martin Marietta must establish that it contains trade secrets or alternatively, that its disclosure to the Arizona Attorney General constitutes making the information public. Neither the Federal Trade Commission Act nor agency regulations define “trade secret.” One court, in construing section 6(f), has adopted the definition of a trade secret contained in the Restatement of Torts. Ashland Oil, Inc. v. FTC, 409 F.Supp. 297, 303 (D.D.C.), aff’d, 179 U.S.App.D.C. 22, 548 F.2d 977 (1976). That definition states: A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which give him an opportunity to obtain an advantage over competitors, who do not know or use it 4 Restatement of Torts § 757, at 5 (1939). The Restatement also details a number of factors that may be employed by a court in determining whether particular data rises to the level of a trade secret: (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. 4 Restatement of Torts § 757, Comment b, at 6 (1939). In" }, { "docid": "22268786", "title": "", "text": "to examine the materials in any event.”), cert. denied, 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989); American Telephone & Telegraph Co. v. Grady, 594 F.2d 594, 596 (7th Cir.1978) (“As a general proposition, pretrial discovery must take place in the public unless compelling reasons exist for denying the public access to the proceedings. F.R.Civ.P. 26(c).”), cert. denied, 440 U.S. 971, 99 S.Ct. 1533, 59 L.Ed.2d 787 (1979). In this case, we need not consider whether information subject to a protective order which is either advertently or inadvertently disclosed could be considered to be received pursuant to a “public disclosure.” There was no reason to shield from public access the information referring to Prudential appearing in the Provident discovery, and Stinson does not suggest any. Therefore, disclosure of discovery material to a party who is not under any court imposed limitation as to its use is a public disclosure under the FCA. Nonetheless, Stinson draws a distinction for purposes of the FCA statute based on whether or not the discovery was filed with the court. Compare Public Citizen v. Liggett Group, Inc., 858 F.2d 775 (1st Cir.1988) (effect of nonfiling was to deny the public the right it would otherwise have had to inspect freely the discovery materials in this case) with Avirgan v. Hull, 118 F.R.D. 252, 255-56 (D.D.C.1987) (holding, in reliance on “the presumption inherent in Rule 26(c) ... [that] discovery should be open,” that, absent a showing of good cause, press and public had right to attend deposition of third-party deponent). We do not think that it is significant, for purposes of interpreting the “public disclosure” provision of the FCA, whether the discovery has in fact been filed. Due to the large volume of discovery materials, many district courts have adopted local rules which provide that discovery materials should not be filed with the court except by order of the court. Such local rules do not generally preclude access by interested persons to nonfiled material. In fact, the Local Rules of some district courts provide that the court may order the filing of discovery materials" }, { "docid": "16364150", "title": "", "text": "do not know it.” The Supreme Court of Iowa in Far-num v. G.D. Searle & Co., 339 N.W.2d 384, 389 (Iowa 1983) also adopted the Restatement definition, and quoted the factors which the Restatement enumerates in comment b thereof: 1) the extent to which the information is known outside of [the party’s] business; 2) the extent to which it is known by [those] involved in his business; 3) the extent of measures taken by him to guard the secrecy of the information; 4) the value of the information to him and to his competitors; 5) the amount of effort or money expended by him in developing the information; 6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Confidential information is often regarded as information which if disclosed, “will cause a ‘clearly defined, serious injury’ to the defendant's business.” Under the above formulations, Upjohn cannot claim trade secrets or confidentiality as to information set forth in the case report forms (“CRFs”). Typically, these are not written or filled out solely by Upjohn. Upjohn claims that they should be regarded as confidential because they are a part of its drug application, and that the Federal Food and Drug Administration would not release these reports to the public. As we have seen, however, these documents are subject to FOIA access in that they contain safety and effectiveness data which is publicly accessible on request, except under extraordinary circumstances. See 21 U.S.C. § 355(Z) (1984 & Supp.1991). In any event, this court finds that Upjohn has not met the burden of showing good cause for keeping those reports under the protective order, and Upjohn has not demonstrated any proprietary or commercial rights in such reports which would preclude removal from the protective order. Technical and statistical reports not authored by Upjohn cannot properly be classified as confidential to Upjohn. However, certain executive summaries, technical reports and statistical reports may contain a “compilation of information” used in Upjohn’s business which gives it certain competitive advantages over those who do not have the documents. The Tenth Circuit has" }, { "docid": "426578", "title": "", "text": "or to deal with it as he pleases. As a property right, the trade secret is protected against its appropriation or use without the consent of the owner. The trade secret is a type of intellectual property, in effect, a property right in discovered knowledge. Muna, 625 P.2d at 696 (footnotes omitted). . Factors relevant to a determination whether a trade secrets exists include the following: (1) the extent to which the information is known outside of [the party's] business; (2) the extent to which it is known by [those] involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Famum v. G.D. Searle & Co., 339 N.W.2d 384, 389 (Iowa 1983) (quoting Restatement of Torts § 757 cmt. b (1939)). . The Archives and Records Services and Information Practices Act defines \"public records\" as follows: all books, papers, letters, documents, maps, plans, photographs, sound recordings, management information systems, or other documentary materials, regardless of physical form or characteristics, made or received, and retained by any state public office under state law or in connection with the transaction of public business by the public offices, agencies, and institutions of the state and its counties, municipalities, and other political subdivisions. Utah Code Ann. § 63-2-61(1) (1989) (emphasis added). “Under this provision, [public] disclosure is required of documentary materials made or returned ... 'in connection with the transaction of public business.’ \" Barnard v. Utah State Bar, 804 P.2d 526, 527 (Utah 1991)." }, { "docid": "23291505", "title": "", "text": "both INSLAW and DOJ to be part of the public domain. When a work passes into the public domain, “anyone can copy, distribute or sell it for his own benefit.” Burke v. NBC, 598 F.2d 688, 691 (1st Cir.1979), cert. denied, 444 U.S. 869, 100 S.Ct. 144, 62 L.Ed.2d 93 (1980). Therefore, INSLAW, as anyone, has every right to market PROMIS and to prepare derivative works based upon the public domain software. 6. Aside from the physical media that may be used to store or represent software code {e.g., magnetic tape, floppy disk, printout of source code), software code constitutes intellectual property that may be protected under trade secret laws. See, e.g., Restatement of Torts § 757; Uniform Trade Secrets Act § 1(4). 7. Computer programs may be protected and maintained as trade secrets. Dickerman Associates, Inc. v. Tiverton Bottled Gas Co., 594 F.Supp. 30 (D.Mass.1984). Under the definition of “trade secret” accepted in this jurisdiction, “[a] trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors, who do not know or use it.” Ashland Oil, Inc. v. FTC, 409 F.Supp. 297, 303 (D.D.C.), aff'd 548 F.2d 977 (D.C.Cir.1976), quoting 4 Restatement of Torts § 757 (1939). See also, Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984); Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 474-475, 94 S.Ct. 1879, 1883, 40 L.Ed.2d 315 (1974). Several factors, none individually dispositive, aid in the determination of whether information constitutes a trade secret: (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be" }, { "docid": "22273795", "title": "", "text": "the materials. Plaintiff’s motion to compel must be accompanied by an affidavit explaining (not merely stating conclusorily) how the requested material is relevant to the specific lawsuit or is reasonably calculated to lead to the discovery of admissible evidence; how the plaintiff or the public would be injured by nondisclosure of each item; and the severity of each such injury. Plaintiff may also submit a brief arguing in favor of disclosure. After giving defendants an opportunity to respond (with a brief and possible supplemental affidavits or declarations), the court can determine whether the defendants have made the requisite threshold showing to invoke the privilege. If the court finds the defendant has not satisfied its threshold burdens, direct disclosure is in order. If the threshold burdens are met, the court may then review the materials at issue in camera and decide which, if any, to withhold from disclosure. See Kerr v. United States District Court, supra, 426 U.S. at 405-06, 96 S.Ct. at 2125 (upon appropriate threshold showing, “this Court has long held the view that in camera review is a highly appropriate and useful means” of handling this kind of privilege claim). At each point both sides must consider the effect of a protective order restricting disclosure to the plaintiff and the plaintiffs attorney, or to the plaintiffs attorney alone. Such an order can mitigate many if not all of the oft-alleged injuries to the police and to law enforcement. See Kelly, supra, 114 F.R.D. at 666; Mercy v. County of Suffolk, 93 F.R.D. 520, 524 (E.D.N.Y.1982) (sample order). Protective orders should not be granted without good reason. They restrict public access to discovery materials and depart from the “general proposition [that] pretrial discovery must take place in the public unless compelling reasons exist for denying the public access to the proceedings.” American Telephone & Telegraph Co. v. Grady, 594 F.2d 594, 596 (7th Cir.1978), cert. denied, 440 U.S. 971, 99 S.Ct. 1533, 59 L.Ed.2d 787 (1979). Under Fed.R.Civ.P. 26(c) the burden is on the party seeking the protective order to show “good cause,” with particular factual support, why the" }, { "docid": "22278358", "title": "", "text": "a secret formula will almost invariably result in this injury, 58 F.T.C. at 1188-89, but the disclosure of two-and-a-half-year-old sales data will not. 71 F.T.C. at 1714. Although no “good cause” standard such as binds the FTC governs the receipt of trade secret information in a court, this court finds the experience of the FTC, which has regularly handled sensitive commercial data in public proceedings, very useful in formulating its own standard. In this court an applicant will have to demonstrate that disclosure of allegedly confidential information will' work a clearly defined and very serious injury to his business. A review of the case law reveals that where public policy outweighs any possibility of a miscarriage of justice or where the protection of a witness can be afforded without prejudice to a defendant’s constitutional rights, or in order to prevent irreparable injury, courts in civil and in criminal proceedings have used their discretion to accept evidence in camera. The use of such discretion to protect commercial data appears limited to cases where the information sought to be protected is shown to be a “trade secret.” In light of the foregoing discussion, the court adopts the position that where commercial information may be subject to protection under Fed.R.Civ.P. 26(c) it will look to determine if its disclosure will work a clearly defined and very serious injury. In so doing the court will be guided by considerations commonly employed when determining if certain information rises to the level of a trade secret such as is embodied in Section 757 of the Restatement of Torts. There, it is suggested that factors of secrecy to be considered when determining if given information ought to be treated as a trade secret are: (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money" }, { "docid": "23291506", "title": "", "text": "business, and which gives him an opportunity to obtain an advantage over competitors, who do not know or use it.” Ashland Oil, Inc. v. FTC, 409 F.Supp. 297, 303 (D.D.C.), aff'd 548 F.2d 977 (D.C.Cir.1976), quoting 4 Restatement of Torts § 757 (1939). See also, Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984); Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 474-475, 94 S.Ct. 1879, 1883, 40 L.Ed.2d 315 (1974). Several factors, none individually dispositive, aid in the determination of whether information constitutes a trade secret: (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. 4 Restatement of Torts § 757, Comment b, p. 6 (1939). Ashland Oil, supra, 409 F.Supp. at 303; (footnote omitted). Thus, the owner of a program “need only show that the particular architecture of its program is valuable, that it is not a matter of common knowledge or readily duplicated, and that it was developed and has been kept secret through plaintiff’s efforts.” Dickerson Associates, supra, 594 F.Supp. at 35. Whether the PROMIS enhancements constitute a trade secret is a question of fact. See, e.g., Lear Siegler, Inc. v. Ark-Ell Springs, Inc., 569 F.2d 286 (5th Cir.1978); Kodekey Electronics, Inc. v. Mechanex Corp., 486 F.2d 449 (10th Cir.1973). 8. Even though INSLAW has licensed the software and provided the source code to its users, the restrictions on their use and disclosure by INSLAW’s licensees entitles the enhancements to trade secret protection. “This necessary element of secrecy is not lost, however, if the holder of the trade secret reveals the trade secret to another ‘in confidence, and under an implied" }, { "docid": "8701179", "title": "", "text": "28; United States v. Exxon Corp., 94 F.R.D. 250, 251 (D.D.C.1981), United States v. Hooker Chemicals, 90 F.R.D. 421, 425 (W.D.N.Y.1981). Where a business is the party seeking protection, it will have to show that disclosure would cause significant harm to its competitive and financial position. That showing requires specific demonstrations of fact, supported where possible by affidavits and concrete examples, rather than broad, conelusory allegations of potential harm. Cipollone v. Liggett Group, supra, 785 F.2d at 1121; Waelde v. Merck, Sharp & Dohme, supra, 94 F.R.D. at 28, United States v. Exxon Corp., supra, 94 F.R.D. at 251, United States v. Hooker Chemicals, supra, 90 F.R.D. at 425, Parsons v. General Motors, 85 F.R.D. 724, 726 (N.D.Ga.1980). The parties agree that the criteria for determining whether information is a trade secret are set forth in Waelde v. Merck, Sharp & Dohme, supra, which in turn relied on the elements in the Restatement of Torts, Section 757. The factors to be considered are: (1) The extent to which the information is known outside his business; (2) The extent to which it is known by employees and others involved in his business; (3) The extent of measures taken by him to guard the secrecy of the information; (4) The value of the information, to him or his competitors; (5) The amount of effort or money expended by him in developing the information; (6) The ease or difficulty with which the information could be properly acquired or duplicated by others. 94 F.R.D. at 28-29. See also, United States v. IBM, 67 F.R.D. 40, 46 n. 9 (S.D.N.Y.1975). Defendant’s counsel asserts that the Baker and Bing affidavits incorporated in this case by reference demonstrate that each of Waelde’s criteria apply. (See, Reply Memo to Plaintiffs’ Opposition to Protective Order, at 1). Several of the factors in Waelde, however, are not addressed by those affidavits. The affidavits recite that Schmid considers its research confidential but provides no specific information regarding the clinical study files sought in this case, such as the extent to which Schmid employees and outside persons already have access to the" }, { "docid": "8701180", "title": "", "text": "(2) The extent to which it is known by employees and others involved in his business; (3) The extent of measures taken by him to guard the secrecy of the information; (4) The value of the information, to him or his competitors; (5) The amount of effort or money expended by him in developing the information; (6) The ease or difficulty with which the information could be properly acquired or duplicated by others. 94 F.R.D. at 28-29. See also, United States v. IBM, 67 F.R.D. 40, 46 n. 9 (S.D.N.Y.1975). Defendant’s counsel asserts that the Baker and Bing affidavits incorporated in this case by reference demonstrate that each of Waelde’s criteria apply. (See, Reply Memo to Plaintiffs’ Opposition to Protective Order, at 1). Several of the factors in Waelde, however, are not addressed by those affidavits. The affidavits recite that Schmid considers its research confidential but provides no specific information regarding the clinical study files sought in this case, such as the extent to which Schmid employees and outside persons already have access to the information, or the particular measures taken by Schmid to safeguard its confidentiality. See, Parsons v. General Motors, supra, 85 F.R.D. at 726; United States v. IBM, supra, 67 F.R.D. at 47-49. Nor do the affidavits explain why complaints received from outside sources should be considered part of Schmid’s confidential research. Even assuming that the information Schmid seeks to protect generally falls within the category of confidential commercial information, only a speculative showing of potential harm has been made. The bulk of the documents sought are over ten years old. Schmid has not marketed the Saf-T-Coil in the United States since 1982. Ms. Bing’s affidavit asserts that in 1980, before the Saf-T-Coil was voluntarily withdrawn, Schmid received an offer of $1,200,-000 from a prospective purchaser of the SAf-T-Coil. It was her understanding that the offeror wished to acquire information about clinical studies, complaints and related documentation “as part of its asset acquisition.” No attempt was made, however, in Ms. Bing’s affidavit to assess the relative value of such documents, as compared to the patents, trademarks, inventory" }, { "docid": "8151001", "title": "", "text": "the nondisclosure agreements signed by Newlin and Vafa. However, DTI and the individual defendants contend that the district court erred in finding that the “architecture” of ICM’s system was a protectable trade secret. We disagree. “The most comprehensive and influential definition of a trade secret is that set out in § 757, comment b of the Restatement of Torts (1939).... ” Lehman v. Dow Jones & Co., 783 F.2d 285, 297 (2d Cir.1986) (footnote omitted); accord Aronson v. Quick Point Pencil Co., 440 U.S. 257, 266, 99 S.Ct. 1096, 1101, 59 L.Ed.2d 296 (1979); see FMC Corp. v. Taiwan Tainan Giant Industrial Co., 730 F.2d 61, 63 (2d Cir.1984) (per curiam) (stating that New York follows Restatement of Torts § 757, comment b). That definition, in pertinent part, provides: A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. Restatement of Torts § 757, comment b; see Delta Filter Corp. v. Morin, 108 A.D.2d 991, 992, 485 N.Y.S.2d 143, 144 (3d Dep’t 1985); see also Support Sys. Assocs. v. Tavolacci, 135 A.D.2d 704, 706, 522 N.Y.S.2d 604, 606 (2d Dep’t 1987). In determining whether a trade secret exists, the New York courts have considered the following factors to be relevant: (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Eagle Comtronics, Inc. v. Pico, Inc., 89 A.D.2d 803, 803-04, 453 N.Y.S.2d 470, 472 (4th Dep’t 1982) (quoting Restatement of Torts § 757, comment b); see Lehman, 783 F.2d at 298 (secrecy is most" }, { "docid": "22278359", "title": "", "text": "to be protected is shown to be a “trade secret.” In light of the foregoing discussion, the court adopts the position that where commercial information may be subject to protection under Fed.R.Civ.P. 26(c) it will look to determine if its disclosure will work a clearly defined and very serious injury. In so doing the court will be guided by considerations commonly employed when determining if certain information rises to the level of a trade secret such as is embodied in Section 757 of the Restatement of Torts. There, it is suggested that factors of secrecy to be considered when determining if given information ought to be treated as a trade secret are: (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. If disclosure is shown to work a clearly defined and very serious injury, continued sealed protection of the information will be maintained until the requirements of the fair administration of justice overrule this protection. We now turn to the instant motions before the court. Dr. Sidney Fernbach received protection under Pretrial Order No. 13 as Amended (entered May 6, 1974) in the form of an order entered August 16, 1974 temporarily sealing portions of testimony pertaining to Dr. Fernbach’s consultancy to the Energy Fund, Inc., a mutual fund. The testimony involved discusses in general terms Dr. Fernbach’s opinions related to the Energy Fund regarding growth and developments in the electronic data processing (EDP) industry. Dr. Fernbach provides his services on a commercial basis and no representation has been made that his opinions are disclosed to or must be maintained by the client on a confidential basis. Accordingly, this court finds that" }, { "docid": "13417211", "title": "", "text": "business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; [and] (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Restatement of Torts § 757 cmt. b (1939); Integrated Cash Mgmt. Servs., Inc. v. Digital Transactions, Inc., 920 F.2d at 173; Lehman v. Dow Jones & Co., 783 F.2d at 297-98; Rapco Foam, Inc. v. Scientific Applications, Inc., 479 F.Supp. at 1029. . In Richter, the plaintiff alleged that’ the defendant had misappropriated his idea for a fashion product and a marketing concept, claiming that his marketing concept was a protectible trade secret. The Sixth Circuit, applying the Restatement, rejected that argument and held that, even if a confidential relationship existed between the parties, the marketing concept was not protecti-ble: Trade secret law is designed to protect a continuing competitive advantage, which a company enjoys due to confidential information it possesses, from destruction due to disclosure by a departed former employee. A marketing concept does not by confidentiality create a continuing competitive advantage because once it is implemented it is exposed for the world to see and for competitors to legally imitate. 529 F.2d at 900." }, { "docid": "5870903", "title": "", "text": "[or confidential information], and (2) that the defendants used that trade secret [or confidential information] in breach of an agreement, confidential relationship or duty, or as a result of discovery by improper means.” Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110, 117 (2d Cir.2009) (quoting N. Atl. Instruments, Inc. v. Haber, 188 F.3d 38, 43-44 (2d Cir.1999)). Under New York law, “a trade secret can exist in a combination of characteristics and components, each of which, by itself, is in the public domain, but the unified process, design and operation of which, in unique combination, affords a competitive advantage and is a protectable secret.” Integrated, Cash Mgmt. Serv., Inc. v. Digital Transactions, Inc., 920 F.2d 171, 174 (2d Cir.1990) (citation omitted). The Second Circuit has identified the following six factors for courts to consider in determining whether certain information constitutes a trade secret: “(1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to the business and to its competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.” Haber, 188 F.3d at 44 (internal quotation marks and citation omitted). “A trade secret ‘differs from other secret information in a business in that it is not simply information as to single or ephemeral events in the conduct of the business [but rather] is a process or device for continuous use in the operation of the business.’ ” Bear, Stearns Funding, Inc. v. Interface Group-Nevada, Inc., 361 F.Supp.2d 283, 305 (S.D.N.Y. 2005) (quoting Restatement (First) of Torts § 757 cmt. b.); Lehman v. Dow Jones & Co., 783 F.2d 285, 298 (2d Cir. 1986) (holding that a trade secret is information “used in running the business ... like the formulas or processes used in manufacturing”). Here, the" }, { "docid": "14775999", "title": "", "text": "device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers. Id. at 1255 (Emphasis supplied.) See also: Project Development Group, Inc. v. O.H. Materials Corp., 766 F.Supp. 1348, 1355 (W.D.Pa.1991), aff'd without op., 993 F.2d 225 (3d Cir.1993). The Third Circuit culled from Restatement of Torts, § 757 comment b, six factors “to be considered in determining whether given information is a trade secret:” 1) the extent to which the information is known outside of the owner’s business; 2) the extent to which it is known by employees and others involved in the owner’s business; 3) the extent of measures taken by the owner to guard the secrecy of the information; 4) the value of the information to the owner and to his competitors; 5) the amount of effort or money expended by the owner in developing the information; and 6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Id. at 1256, citing Restatement of Torts, § 757 comment b (1939); and International Election Systems Corp. v. Shoup, 452 F.Supp. 684, 706 (E.D.Pa.1978), aff'd, 595 F.2d 1212 (3d Cir.1979). Customer lists receive protection as trade secrets, Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d 838, 842-43 (1957), only if they cannot be “easily or readily obtained” from an independent source. National Risk Management, Inc. v. Bramwell, 819 F.Supp. 417, 431 (E.D.Pa.1993). The courts will not grant protection to customer lists which are readily and easily generated from trade journals, telephone book listings, or other sources of information available generally. Bell Fuel Corp. v. Cattolico, 375 Pa.Super. 238, 544 A.2d 450, 461 (1988) (collecting cases). To prevail on a claim of confidentiality, the moving party must also demonstrate that reasonable precautions under the circumstances were taken to prevent unauthorized disclosure" }, { "docid": "13417210", "title": "", "text": "change of label were sufficient to avoid proof of novelty and originality, many idea cases decided under New York law on novelty grounds would have reached the opposite conclusion if those plaintiffs merely pleaded the misappropriation of a trade secret. We believe, however, that the courts of New York neither countenance nor intend to foster a body of law that breeds inconsistent results on the basis of fortuitous or artful pleading. CONCLUSION Because the district court erred as a matter of law in allowing this action for the misappropriation of the Microtel concept to proceed to trial under a trade secret theory once Hudson had affirmatively abandoned any claim of novelty, the judgment of the district court is vacated, and the case is remanded with instructions to dismiss the Amended Complaint. . Factors that may be considered in determining whether a plaintiff possessed a trade secret include: (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; [and] (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Restatement of Torts § 757 cmt. b (1939); Integrated Cash Mgmt. Servs., Inc. v. Digital Transactions, Inc., 920 F.2d at 173; Lehman v. Dow Jones & Co., 783 F.2d at 297-98; Rapco Foam, Inc. v. Scientific Applications, Inc., 479 F.Supp. at 1029. . In Richter, the plaintiff alleged that’ the defendant had misappropriated his idea for a fashion product and a marketing concept, claiming that his marketing concept was a protectible trade secret. The Sixth Circuit, applying the Restatement, rejected that argument and held that, even if a confidential relationship existed between the parties, the marketing concept was not protecti-ble: Trade secret law is designed to protect a continuing competitive advantage, which a company enjoys" } ]

[ { "docid": "9534950", "title": "", "text": "January 15, 1987, by five black citizens and registered voters of Granville County, North Carolina, on behalf of themselves and all other black voters of the county against the County, the County Board of Commissioners, its members, the County Board of Elections, its members, and the County Supervisor of Elections. The plaintiffs alleged that the then existing at-large method of electing the Granville County Board of County Commissioners (the Board) had the result of “diluting minority voting strength and denying members of the black community the opportunity to elect representatives of their choice” to the Board, in violation of § 2 of the Voting Rights Act of 1965, as amended. 42 U.S.C. § 1973 (§ 2, or the Act). The Board is the governing body of Granville County. At the time the plaintiffs brought this action, the Board consisted of five members, on a county-wide at- large basis, but required to reside in particular residence districts. Each member was elected for a four-year term. The terms of the various Board members were staggered, with elections being held in even numbered years. Three of the five incumbent members were serving terms which expired in 1988. The remaining two incumbent members were serving terms which expire in 1990. Black citizens make up 43.9% of the county’s total population (1980 data), 40.8% of its voting age population (1980 data), and 39.5% of its registered voters (1987 data). Despite these population numbers, and despite the fact that a number of black residents have run for election to the Board, no black has ever been elected to the Board. On the parties’ joint pre-trial motion, in which the County stipulated that the challenged electoral scheme “does not comply with the requirements of § 2 of the Voting Rights Act,” the district court entered a consent order which required the parties to attempt to agree upon a remedial plan, failing which the county would submit a proposed remedial plan, to which plaintiffs might submit a response for consideration by the court. In accordance with the order, after the parties failed to agree upon a remedy, the" } ]

[ { "docid": "22056878", "title": "", "text": "council members. In this regard, District 2 also received significant attention because it was likely to feature a race between incumbent councilmen James Lawson and Lloyd Giar-dina. During the ensuing negotiations, a number of proposals surfaced among the council members. Councilman James Lawson’s plan (the “Lawson Plan” or “modified plan”) garnered the most support because it permitted other incumbents to maintain as much of their pre-1988 districts as possible. It retained the six-and-one council-manic scheme, with six single-member councilmanic districts and one at-large seat (“6-1”). Additional adjustments were made to accommodate a particularly vocal constituent, Ida Saik, a resident of Maple-wood. The Lawson Plan split some precincts to accommodate changes in the numbers of registered voters and included a black majority councilmanic district, District 3, with a BVAP of 57.40%. By resolution No. 69122, passed on May 8, 1991, the Jefferson Parish Council adopted the modified plan. All of the council mem bers, with the exception of Giardina, voted in favor of the modified plan. On May 15, 1991, Jefferson Parish filed the modified plan with the district court but the district court rejected the modified plan and admonished the parties for letting “politics” enter the districting process. The district court appointed a special master to draw up a redistricting proposal for the court. On June 10, 1991, the special master submitted a 6-1 redistricting plan to the district court containing a black councilmanic district with 49% BVAP, a BVAP percentage less than the BVAP adopted in the Lawson plan. The trial court entered its judgment implementing the redistricting plan drawn by the special master but a panel of this court, in an unpublished per curiam opinion, found that the plan was a “Judge Made Plan” and impermissibly intruded “into the bailiwick of the legislative branch of local governments.” This court further found that the special master’s plan “must fall for failure to include one district with a majority black voting age population.” We held that the district court “should promptly adopt and implement a plan that, while applying the 1990 census data, otherwise remains as faithful as practicable to" }, { "docid": "22056877", "title": "", "text": "Feb. 1990 plan had to be modified to be in accord with the population variances triggered by the 1990 Census. The 1990 Census reflected an increase in the black voting-age population (“BVAP”). Moreover, since District 3 had lost population overall, it required reconfiguration to avoid a constitutional one-person, one-vote violation. The DOJ informed the attorneys for Jefferson Parish that it would require a benchmark, or a minimum 52.3% BVAP majority in District 3 in order to pre-clear a new redistricting plan drawn under the 1990 Census. The district court encouraged the parties to work together to formulate the necessary modifications and to adhere to a May 15, 1991 deadline for submission of the modified plan. During the subsequent meetings among the Parish council members, each councilman brought certain political concerns to the attention of other council persons. One or more of the individual incumbent council members sought to include in their districts voters who could be expected to support them in a bid to gain reelection. Additionally, the Parish sought to avoid contests between incumbent council members. In this regard, District 2 also received significant attention because it was likely to feature a race between incumbent councilmen James Lawson and Lloyd Giar-dina. During the ensuing negotiations, a number of proposals surfaced among the council members. Councilman James Lawson’s plan (the “Lawson Plan” or “modified plan”) garnered the most support because it permitted other incumbents to maintain as much of their pre-1988 districts as possible. It retained the six-and-one council-manic scheme, with six single-member councilmanic districts and one at-large seat (“6-1”). Additional adjustments were made to accommodate a particularly vocal constituent, Ida Saik, a resident of Maple-wood. The Lawson Plan split some precincts to accommodate changes in the numbers of registered voters and included a black majority councilmanic district, District 3, with a BVAP of 57.40%. By resolution No. 69122, passed on May 8, 1991, the Jefferson Parish Council adopted the modified plan. All of the council mem bers, with the exception of Giardina, voted in favor of the modified plan. On May 15, 1991, Jefferson Parish filed the modified plan" }, { "docid": "19537355", "title": "", "text": "currently in effect (typically called a 'benchmark plan'), the new plan diminishes the number of districts in which minority groups can 'elect their preferred candidates of choice' (often called 'ability-to-elect' districts).\" Harris v. Arizona Independent Redistricting Comm'n, 578 U.S. ----, ---- - ----, 136 S.Ct. 1301, 1307, 194 L.Ed.2d 497 (2016) (quoting 52 U.S.C. § 10304(b) ). The parties agree that the 12 districts at issue here, where minorities had constituted a majority of the voting-age population for many past elections, qualified as \"ability-to-elect\" districts. Most of the districts were underpopulated, however, so any new plan required moving significant numbers of new voters into these districts in order to comply with the principle of one person, one vote. Under the benchmark plan, the districts had BVAPs ranging from 62.7% down to 46.3%. Three districts had BVAPs below 55%. Seeking to maintain minority voters' ability to elect their preferred candidates in these districts while complying with the one-person, one-vote criterion, legislators concluded that each of the 12 districts \"needed to contain a BVAP of at least 55%.\" 141 F.Supp.3d, at 519. At trial, the parties disputed whether the 55% figure \"was an aspiration or a target or a rule.\" Ibid. But they did not dispute \"the most important question-whether [the 55%] figure was used in drawing the Challenged Districts.\" Ibid. The parties agreed, and the District Court found, \"that the 55% BVAP figure was used in structuring the districts.\" Ibid. In the enacted plan all 12 districts contained a BVAP greater than 55%. Who first suggested the 55% BVAP criterion and how the legislators agreed upon it was less clear from the evidence. See id., at 521 (describing the \"[t]estimony on this question\" as \"a muddle\"). In the end, the District Court found that the 55% criterion emerged from discussions among certain members of the House Black Caucus and the leader of the redistricting effort in the House, Delegate Chris Jones, \"based largely on concerns pertaining to the re-election of Delegate Tyler in [District] 75.\" Id., at 522. The 55% figure \"was then applied across the board to all twelve\" districts." }, { "docid": "491344", "title": "", "text": "structuring the districts -and in assessing whether the redistricting plan satisfied constitutional standards and the VRA, and whether the plan would be precleared by the Department of Justice (“DOJ”). At trial, two additional questions regarding the 55% figure dominated the discussion. First, whether the BVAP figure included or excluded those who identified themselves in the census process as ethnically Hispanic and racially black. And second, what'the source of the 55% BVAP figure was. • The parties hotly debated whether the appropriate measure of BVAP used in the redistricting process did or did not include individuals who identified as racially black and ethnically Hispanic in the census data. The supposed importance of this dispute was that, if black Hispanics were excluded from the black population count, three of the Enacted Plan’s majority-minority districts would actually contain a BVAP percentage just shy of 55%. Trial Tr. 280:24- 281:10 (Jones); 862:4-7 - (Intervenors). That, according to Intervenors, would support a finding that there was not a 55% BVAP floor in deciding on the twelve Challenged Districts. The ‘record shows that delegates attempting to comply with the 55% BVAP floor submitted their proposed changes using data that included black Hispanics in the BVAP count. See Pis.’ Ex. 33 at 46; Trial Tr. 40:10-25 (McClellan); Trial Tr. 68:23-69:2 (Dance); Ints.’ Pre-Trial Brief at 8. Although Delegate Jones claimed to personally believe that the DOJ would use a BVAP figure excluding black Hispanics, Trial Tr. 286:8-16 (Jones), this was not a distinction that he discussed with any other delegates, id. at 427:1-428:16 & 490:2-4, and he repeatedly asserted on the House floor that all majority-minority districts in the proposed legislation had a BVAP of 55% or higher, Pis.’ Ex. 35 at 42, 66, 108. Moreover, Delegate Jones “assumed” that Virginia, in its preclearance submissions to the DOJ; would represent that all 12 majority-minority districts contained at least 55% BVAP. Trial Tr. 447:6-8 (Jones). This turned out to be the case. Pis.’ Ex. 48 at 11 (“All 12 black majority districts were maintained with greater than 55% black YAP — a range of'-55.2% to 60.7%.”). At trial," }, { "docid": "491535", "title": "", "text": "of the 2010 census, nine of the twelve challenged districts already had a, BVAP of 55% or higher. DI Ex. 15 at 13-14 & Table 8; Pl.Ex. 50 at 9 ¶ 17, 72 Table 4. Even assuming that such figures could protect the configuration of those nine districts in the 2011 plan, the three remaining districts still would be subject to strict\" scrutiny. Moreover, given the significant population deficits in most of the challenged districts, our inquiry must focus on “which voters the legislature decide[d] to choose” when moving voters between districts in order to achieve population equality. Alabama, 135 S.Ct. at 1271 (emphasis in original). Here, the legislature’s decision to move certain voters in .order to maintain a preexisting 55% BVAP floor in the new plan is still a “mechanically numerical” method of redistricting that is subject to strict scrutiny. See id. at 1273. I therefore conclude that the majority’s approach effectively and improperly places on plaintiffs asserting racial predominance in redistricting a burden never assigned by the Supreme Court. Under the majority’s analysis, plaintiffs now will be required to show circumstantial evidence of racial motivation through “actual conflict” with traditional districting criteria, when such plaintiffs already have presented disposi-tive direct evidence that the .legislature assigned race a priority over all other dis-tricting factors. V. Even upon applying its heightened predominance standard, the majority concludes that race was the predominant1 factor in the drawing- of District 75. I would hold that, under the majority’s test, the same conclusion of predominance' holds true for neighboring District 63 as well. As a result of the “drastic maneuvering” required to reach a 55% BVAP in District 75, portions’ of a county previously in District 63 were shifted into District 75, a move that the majority agrees was “avowedly facial.” Trial Tr, at 74, 80; Maj. Op. at 553. The -plan compensated for this loss; of BVAP in District- 63 by adding to the district new areas with high BVAP concentrations. Trial Tr. at 81-83. Due to the changes in the- 2011 plan, District 63 experienced a startling reduction in 'compactness and an" }, { "docid": "22056900", "title": "", "text": "on the increase in the black population in District 3 under the findings of the 1990 Census. While the Lawson Plan overshot the benchmark by nearly 5 percentage points, the district court found that the Appellants had not demonstrated that the DOJ coerced the Parish into designing a district that maximizes District 3’s black population as criticized in Miller. We review the district court’s findings of fact for clear error and find none. See Fed.R.Civ.P. 52(a). We reject the Appellants’ reliance on Abrams and Young v. Fordice, 520 U.S. 273, 117 S.Ct. 1228, 137 L.Ed.2d 448 (1997) to argue that only the last districting scheme used by the jurisdiction to hold elections is the proper benchmark. Appellants have misread both cases. In Abrams, the Supreme Court rejected appellants’ proposed benchmark because it had never been in effect and was found to be unconstitutional. See Abrams, 521 U.S. at 96-97, 117 S.Ct. 1925. The plan for unitary voter registration for state and federal elections at issue in Young suffered similar deficiencies. Specifically, the Court found that the plan was not “in force or effect” because those seeking to administer the plan had abandoned it as soon as its unlawfulness became apparent. Appellants’ invitation to disregard census data in favor of outdated information is impractical. The parties realized the 1990 Census would impact redistricting; therefore, they promulgated an interim plan. Once the 1990 Census provided figures which were not favorable to the Appellants, they sought to disregard its import. Nevertheless, the interim plan was pre-cleared and upheld by the court. A majority-minority district which fell below the documented increase in the BVAP would have been subject to a Section 2 challenge. By insisting on benchmark figures wholly inconsistent with increases in the BVAP, Appellants attempt to sentence minorities complaining of vote-dilution to a fate similar to Sisyphus. Even though this court has found a Section 2 violation and required the parties to make adjustments based on the 1990 Census, Appellants would have us turn the Appellees away and have them prove a Section 2 violation all over again. We decline to impose" }, { "docid": "491454", "title": "", "text": "incumbent and prevent retrogression. Similarly, Delegate Jones testified: “[S]he was worried about too low of a black voting-age population for her to be able to be successful in an election.” Id. at 322:10-12. This too reflects an effort to protect the incumbent while also preserving minority voters’ ability to elect their candidate of choice. Unlike in [¶] 63, however, here there is no ambiguity about the basis upon which voters were sorted. Intervenors’ Post-Trial Brief relies upon the overlapping racial and political purposes to argue that race did not “predominate.” According to the Intervenors, Delegate Tyler’s deposition testimony “made crystal clear her view that ‘[w]hat I’m saying is most of the time blacks vote Democratic,’ and that ‘in [her] mind, the purpose of ensuring 55 percent BVAP was to help Democrats be elected.’ ” Ints.’ Post-Trial Brief at 30-31 (citing Docket No. 90-2, Ex. B, 62:17-25 & 63:19-23). But, attributing a political purpose to — or -'justification for — the 55% BVAP floor does not somehow render it a non-racial classification. Whether the changes were made to comply with Section 5, enhance Democratic performance, or protect the incumbent, the changes were still made based on voters’ skin color. Weighing all the evidence and testimony provided on the record, the Court finds that racial considerations subordinated traditional districting principles and other non-racial districting criteria in - the creation of [¶] 75. The testimony from the three delegates primarily responsible for shaping the district, Delegates Jones, Tyler, and Dance, shows that the overriding objective was to achieve a 55% BVAP in [¶] 75. Achieving a 55% BVAP floor required “drastic maneuvering” that is reflected on the face of - the district and, according to Delegate Jones, would not otherwise have been, undertaken due to the impact on traditional county boundaries. Delegate Tyler herself found the boundaries “very irregular,” worried about her ability to cover her district .with ease, and was “concern[ed] about the decrease in number of black people in [her] district.” : Intervenors attempt to explain the boundary deviations by-ascribing a political purpose to them. But that attempt is not successful." }, { "docid": "22056876", "title": "", "text": "3 contained a black majority with a total black population of 51.7%, according to the 1980 Census, and 56.3% black voter registration. On May 10, 1990, the Attorney General precleared this plan under Section 5 of the Voting Rights Act. The Department of Justice (“DOJ”) precleared the Parish’s alternative plan. On appeal, the Parish challenged the district court’s findings that the minority group was sufficiently large and geographically compact to constitute a single-member district; that the minority group is politically cohesive; and that a bloc voting white majority usually defeats the minority’s preferred candidate. See Thornburg v. Gingles, 478 U.S. 30, 50-51, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986) (establishing these as the three necessary preconditions to make a claim under § 2 of the Voting Rights Act). This court affirmed and remanded for implementation of the February 1990 Plan. See East Jefferson Coalition for Leadership & Dev. v. Parish of Jefferson (“EJC”), 926 F.2d 487, 494 (5th Cir.1991). B After remand from this court, the district court held a status conference stating that the Feb. 1990 plan had to be modified to be in accord with the population variances triggered by the 1990 Census. The 1990 Census reflected an increase in the black voting-age population (“BVAP”). Moreover, since District 3 had lost population overall, it required reconfiguration to avoid a constitutional one-person, one-vote violation. The DOJ informed the attorneys for Jefferson Parish that it would require a benchmark, or a minimum 52.3% BVAP majority in District 3 in order to pre-clear a new redistricting plan drawn under the 1990 Census. The district court encouraged the parties to work together to formulate the necessary modifications and to adhere to a May 15, 1991 deadline for submission of the modified plan. During the subsequent meetings among the Parish council members, each councilman brought certain political concerns to the attention of other council persons. One or more of the individual incumbent council members sought to include in their districts voters who could be expected to support them in a bid to gain reelection. Additionally, the Parish sought to avoid contests between incumbent" }, { "docid": "491453", "title": "", "text": "324:12-16; 325:1-5 (Jones). Delegate Jones accepted these changes even though adherence to political subdivisions and compactness would be subordinated in the process. See id. at 323:11-16 (“[W]e had two other counties whole until ... she requested that we swap [Wake-field and Dendron] out.”); 325:14-16 (“I would have never done that had it not been requested because I wanted to. split as few jurisdictional boundaries as I could[.]”). But attributing the changes -to “member requests” or performance concerns begs, rather than answers, the relevant question: was the request racial or political? Like in [¶] 63, the evidence admits of both a racial purpose and a political purpose. For instance, Delegate Jones himself testified that Delegate Tyler’s request to swap Wakefield and Dendron was based on “real concerns” stemming from the fact that she “didn’t break 51 percent” in a general election race “with a Caucasian” and that she “won by less than 300 votes” in a “five-way race in a primary with two Caucasians.” Id. at 323:19-324:3 (Jones). That bespeaks an effort to both protect the incumbent and prevent retrogression. Similarly, Delegate Jones testified: “[S]he was worried about too low of a black voting-age population for her to be able to be successful in an election.” Id. at 322:10-12. This too reflects an effort to protect the incumbent while also preserving minority voters’ ability to elect their candidate of choice. Unlike in [¶] 63, however, here there is no ambiguity about the basis upon which voters were sorted. Intervenors’ Post-Trial Brief relies upon the overlapping racial and political purposes to argue that race did not “predominate.” According to the Intervenors, Delegate Tyler’s deposition testimony “made crystal clear her view that ‘[w]hat I’m saying is most of the time blacks vote Democratic,’ and that ‘in [her] mind, the purpose of ensuring 55 percent BVAP was to help Democrats be elected.’ ” Ints.’ Post-Trial Brief at 30-31 (citing Docket No. 90-2, Ex. B, 62:17-25 & 63:19-23). But, attributing a political purpose to — or -'justification for — the 55% BVAP floor does not somehow render it a non-racial classification. Whether the changes were" }, { "docid": "19539710", "title": "", "text": "had a BVAP of around 48%, the latter a BVAP of around 43%. See App. 312, 503. Nonetheless, in five successive general elections conducted in those reconfigured districts, all the candidates preferred by most African-American voters won their contests-and by some handy margins. In District 1, black voters' candidates of choice garnered as much as 70% of the total vote, and never less than 59%. See 5 Record 636, 638, 641, 645, 647 (Pls. Exh. 112). And in District 12, those candidates won with 72% of the vote at the high end and 64% at the low. See id., at 637, 640, 643, 646, 650. Another census, in 2010, necessitated yet another congressional map-(finally) the one at issue in this case. State Senator Robert Rucho and State Representative David Lewis, both Republicans, chaired the two committees jointly responsible for preparing the revamped plan. They hired Dr. Thomas Hofeller, a veteran political mapmaker, to assist them in redrawing district lines. Several hearings, drafts, and revisions later, both chambers of the State's General Assembly adopted the scheme the three men proposed. The new map (among other things) significantly altered both District 1 and District 12. The 2010 census had revealed District 1 to be substantially underpopulated: To comply with the Constitution's one-person-one-vote principle, the State needed to place almost 100,000 new people within the district's boundaries. See App. 2690; Evenwel v. Abbott, 578 U.S. ----, ----, 136 S.Ct. 1120, 1124, 194 L.Ed.2d 291 (2016) (explaining that \"[s]tates must draw congressional districts with populations as close to perfect equality as possible\"). Rucho, Lewis, and Hofeller chose to take most of those people from heavily black areas of Durham, requiring a finger-like extension of the district's western line. See Appendix, infra . With that addition, District 1's BVAP rose from 48.6% to 52.7%. See App. 312-313. District 12, for its part, had no need for significant total-population changes: It was overpopulated by fewer than 3,000 people out of over 730,000. See id ., at 1150. Still, Rucho, Lewis, and Hofeller decided to reconfigure the district, further narrowing its already snakelike body while adding areas" }, { "docid": "491489", "title": "", "text": "Democrats happen to be black Democrats” does not mean that a political gerrymander is thereby transformed into a racial gerrymander. Cromartie I, 526 U.S. at 551,119 S.Ct. 1545. On the whole, the Court finds that the Plaintiffs have not carried the burden of demonstrating that racial considerations subordinated neutral districting criteria and other non-racial districting criteria, including incumbent pairing prevention and incumbency protection. Although the existence of the BVAP floor itself weighs in favor of a racial predominance finding, the Court finds, as a matter of fact, that— qualitatively — the “dominant and controlling” factor dictating the construction of [¶] 80 was incumbency protection, and that race did not predominate in the drawing of [¶] 80. 9. District 89 [¶] 89 is found in the Norfolk area and was represented by then-Delegate Kenneth Alexander during the 2011 redistricting process. Under both the Benchmark Plan and the Enacted Plan, the district is contained wholly within Norfolk. Pis.’ Ex. 50 at 69, Table 1. There were no county or city splits and the number of split VTDs remained the same under both plans. Pis.’ Ex. 50 at 69-70, Tables 1, 2. [¶] 89 has a core retention percentage of 76.86. Ints.’ Ex. 14 at 84. On its face, the district appears reasonably compact and generally follows precinct lines within Norfolk. The district had Reock and Polsby-Popper scores of .58 and .31 under the Benchmark Plan, which dropped to scores of .40 and .20 under the Enacted Plan. Ints.’ Ex. 15 at 15, Table 9. The district’s Schwartzberg score is 2 .263. Pis.’ Ex. 51 at 11, Table 1. Although, the district is not contiguous by land, it does contain water crossings within the district. See Pis.’ Ex. 66 at 9; Ints.’ Ex, 94 at 11. One of these crossings is largely to blame for the district’s relative drop in compactness. Trial Tr. 144:9-145:1 (Ansolabehere). The added precinct — Berkley—contains a high BVAP percentage,, see Ints.’ Ex. 92 at 19, but is also relatively close to Delegate Alexander’s residence, see Ints.’ Ex. 94 at 11. •In addition, the district added a small “pipe”" }, { "docid": "19537375", "title": "", "text": "when deciding upon the 55% BVAP target. Redrawing this district presented a difficult task, and the result reflected the good-faith efforts of Delegate Jones and his colleagues to achieve an informed bipartisan consensus. Delegate Jones met with Delegate Tyler \"probably half a dozen times to configure her district\" in order to avoid retrogression. 141 F.Supp.3d, at 558 (internal quotation marks omitted). He discussed the district with incumbents from other majority-minority districts. He also considered turnout rates, the results of the recent contested primary and general elections in 2005, and the district's large population of disenfranchised black prisoners. The challengers, moreover, do not dispute that District 75 was an ability-to-elect district, or that white and black voters in the area tend to vote as blocs. See id., at 557-559. In light of Delegate Jones' careful assessment of local conditions and structures, the State had a strong basis in evidence to believe a 55% BVAP floor was required to avoid retrogression. The challengers' responses ask too much from state officials charged with the sensitive duty of reapportioning legislative districts. First, the challengers contest the sufficiency of the evidence showing that Delegate Jones in fact performed a functional analysis, in part because that analysis was not memorialized in writing. But the District Court's factual findings are reviewed only for clear error. See Easley v. Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001). The findings regarding how the legislature arrived at the 55% BVAP target are well supported, and \"we do not ... require States engaged in redistricting to compile a comprehensive administrative record.\" Vera, 517 U.S., at 966, 116 S.Ct. 1941 (internal quotation marks omitted). The challengers argue further that the drafters of the plan had insufficient evidence to justify a 55% BVAP floor. The 2005 elections were idiosyncratic, the challengers contend; moreover, demographic information about the prison in the district is absent from the record, and Delegate Tyler's perspective was influenced by a personal interest in reelection. That may have been so, and for those reasons, it is possible that, if the State had drawn District 75 with" }, { "docid": "491477", "title": "", "text": "improved on neutral metrics over the last three district-ing cycles. See Ints.’ Ex. 14 at 60. In particular, the 2011 plan removed the water crossing discussed in Wilkins v. West. See 264 Va. at 465-66, 571 S.E.2d 100; Trial Tr. 316:15-25 (Jones). The Intervenors also noted that the BVAP percentage in the district had been lowered substantially from the Benchmark Plan. See Trial Tr. 313:3-315:6; Pis.’ Ex. 50 at 72. But the fact that the BVAP percentage dropped does not, taken alone, indicate that race was not the predominate criterion influencing the district’s construction. As the Plaintiffs observe, much of the black population ceded from [¶] 74 went to other Challenged Districts, such as [¶] 63 and [¶] 71. See Pis.’ Post-Trial Reply at 17. Unlike in a racial vote dilution claim, a racial predominance inquiry does not necessarily = concern itself with whether the BVAP went up or down.- A district formed primarily to eject black voters would employ the same racial classification as a district formed primarily to include black voters. In the end, however, the primary objection to this district amounts to a criticism that the district is too long. But predominance is not merely a beauty contest centered on Reock-style compactness. Although this district certainly does not earn high marks in a qualitative predominance analysis, the Plaintiffs' have failed to demonstrate that neutral criteria were substantially disregarded in the formation of [¶] 74. The district contains all of Charles City and, for most of its length, has readily identifiable boundaries. Moreover, the shifting of black population into [¶] 63 and [¶] 71 largely improved [¶] 74’s compliance with neutral criteria, such as contiguity and compactness. Moreover, the district has retained roughly the same long shape since 1991. Trial Tr. 315:19-318:25 (Jones). Core retention alone cannot be used to save an otherwise offensive district, but it is worth holding in the balance if the. familiarity of the boundaries has “allow[ed for the] development of relationships and communities of interest relative to election of delegates ” Wilkins, 264 Va. at 466, 476, 571 S.E.2d 100. On the whole," }, { "docid": "19539757", "title": "", "text": "State proposes. In the District Court, the parties also presented arguments relating to the first Gingles prerequisite, contesting whether the African-American community in the region was sufficiently large and compact to form a majority of a reasonably shaped district. The court chose not to decide that fact-intensive question. And aside from the State's unelaborated assertion that \"[t]here is no question that the first factor was satisfied,\" Brief for Appellants 52, the parties have not briefed or argued the issue before us. We therefore have no occasion to address it. North Carolina calls our attention to two expert reports on voting patterns throughout the State, but neither casts light on the relevant issue. The first (by Dr. Thomas Brunell) showed that some elections in many of the State's counties exhibited \"statistically significant\" racially polarized voting. App. 1001. The second (by Dr. Ray Block) found that in various elections across the State, white voters were \"noticeably\" less likely than black voters to support black candidates. Id., at 959. From those far-flung data points-themselves based only on past elections-the experts opined (to no one's great surprise) that in North Carolina, as in most States, there are discernible, non-random relationships between race and voting. But as the District Court found, see Harris v. McCrory, 159 F.Supp.3d 600, 624 (M.D.N.C.2016), that generalized conclusion fails to meaningfully (or indeed, at all) address the relevant local question: whether, in a new version of District 1 created without a focus on race, black voters would encounter \"sufficient [ ]\" white bloc-voting to \"cancel [their] ability to elect representatives of their choice,\" Gingles, 478 U.S., at 56, 106 S.Ct. 2752. And so the reports do not answer whether the legislature needed to boost District 1's BVAP to avoid potential § 2 liability. Justice ALITO charges us with \"ignor[ing]\" the State's political-gerrymander defense, making our analysis \"like Hamlet without the prince.\" Post, at 1496 (opinion concurring in judgment in part and dissenting in part) (hereinafter dissent); see post, at 1496, 1504. But we simply take the State's account for what it is: one side of a thoroughly two-sided case (and," }, { "docid": "2491424", "title": "", "text": "1990. At the trial, defendants took the position that they would need 90 days within which to draft a plan, if we found liability on their part. We are giving them considerably less time, but we are doing so, we think, for good reason. First, the 90-day time period was mentioned as being necessary to re-draw the lines for the entire State, and that will not be necessary. Second, a good deal of the groundwork has already been laid by the detailed proof made in this case at the liability stage, including the maps of alternative districts introduced by the plaintiffs. Finally, if relief is to be effective at all, it must be in place sufficiently in advance of the 1990 elections to allow the public and prospective candidates to make necessary adjustments to the new lines. All of this will require a great deal of time, expense, and dislocation, but we believe the Voting Rights Act leaves us no alternative. The Act does not permit either this Court or the defendants to subject the plaintiffs and those they represent to another election conducted on an unlawful basis. The lines will have to be re-drawn again after the 1990 census, but fair and lawful representation in the Legislature to be elected in 1990 remains of great importance, especially in view of the fact that its members will draw new lines for congressional districts. Only if relief is afforded now will plaintiffs get in on the ground floor of this process to the extent required by law. Judge Exsele has advised that he will dissent for the laches of the plaintiffs in filing this action and the inappropriateness of the requested injunctive relief so near to the next reapportionment and the 1990 elections. He further advises that he will concur with the majority in the finding that there was a Section 2 violation although he would exclude not only Pulaski County but also Jefferson County and House districts 74, 75, 82, and 100. Since he disagrees with certain of the Court’s findings and conclusions, he will in due course file a" }, { "docid": "19537374", "title": "", "text": "use race in order to satisfy the Voting Rights Act, \"even if a court does not find that the actions were necessary for statutory compliance.\" Ibid. (internal quotation marks omitted). The Court now finds no error in the District Court's conclusion that the State had sufficient grounds to determine that the race-based calculus it employed in District 75 was necessary to avoid violating § 5. As explained, § 5 at the time barred Virginia from adopting any districting change that would \"have the effect of diminishing the ability of [members of a minority group] to elect their preferred candidates of choice.\" 52 U.S.C. § 10304(b). Determining what minority population percentage will satisfy that standard is a difficult task requiring, in the view of the Department of Justice, a \"functional analysis of the electoral behavior within the particular ... election district.\" Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act, 76 Fed. Reg. 7471 (2011). Under the facts found by the District Court, the legislature performed that kind of functional analysis of District 75 when deciding upon the 55% BVAP target. Redrawing this district presented a difficult task, and the result reflected the good-faith efforts of Delegate Jones and his colleagues to achieve an informed bipartisan consensus. Delegate Jones met with Delegate Tyler \"probably half a dozen times to configure her district\" in order to avoid retrogression. 141 F.Supp.3d, at 558 (internal quotation marks omitted). He discussed the district with incumbents from other majority-minority districts. He also considered turnout rates, the results of the recent contested primary and general elections in 2005, and the district's large population of disenfranchised black prisoners. The challengers, moreover, do not dispute that District 75 was an ability-to-elect district, or that white and black voters in the area tend to vote as blocs. See id., at 557-559. In light of Delegate Jones' careful assessment of local conditions and structures, the State had a strong basis in evidence to believe a 55% BVAP floor was required to avoid retrogression. The challengers' responses ask too much from state officials charged with the sensitive duty of reapportioning" }, { "docid": "19537377", "title": "", "text": "a BVAP below 55% and had sought judicial preclearance, a court would have found no § 5 violation. But that is not the question here. \"The law cannot insist that a state legislature, when redistricting, determine precisely what percent minority population § 5 demands.\" Alabama, 575 U.S., at ----, 135 S.Ct., at 1273. The question is whether the State had \"good reasons \" to believe a 55% BVAP floor was necessary to avoid liability under § 5. Ibid. (internal quotation marks omitted). The State did have good reasons under these circumstances. Holding otherwise would afford state legislatures too little breathing room, leaving them \"trapped between the competing hazards of liability\" under the Voting Rights Act and the Equal Protection Clause. Vera, supra, at 977, 116 S.Ct. 1941 (internal quotation marks omitted). As a final point, the challengers liken the 55% BVAP floor here to the \"mechanically numerical view\" of § 5 this Court rejected in Alabama . 575 U.S., at ----, 135 S.Ct., at 1273. But Alabama did not condemn the use of BVAP targets to comply with § 5 in every instance. Rather, this Court corrected the \"misperception\" that § 5 required a State to \"maintai[n] the same population percentages in majority-minority districts as in the prior plan.\" Id., at ---- - ----, 135 S.Ct., at 1273. \"[I]t would seem highly unlikely,\" the Court explained, that reducing a district's BVAP \"from, say, 70% to 65% would have a significant impact on the black voters' ability to elect their preferred candidate.\" Id., at ----, 135 S.Ct., at 1273. Yet reducing the BVAP below 55% well might have that effect in some cases. The record here supports the legislature's conclusion that this was one instance where a 55% BVAP was necessary for black voters to have a functional working majority. IV The Court's holding in this case is controlled by precedent. The Court reaffirms the basic racial predominance analysis explained in Miller and Shaw II, and the basic narrow tailoring analysis explained in Alabama . The District Court's judgment as to District 75 is consistent with these principles. Applying these principles" }, { "docid": "22056901", "title": "", "text": "the plan was not “in force or effect” because those seeking to administer the plan had abandoned it as soon as its unlawfulness became apparent. Appellants’ invitation to disregard census data in favor of outdated information is impractical. The parties realized the 1990 Census would impact redistricting; therefore, they promulgated an interim plan. Once the 1990 Census provided figures which were not favorable to the Appellants, they sought to disregard its import. Nevertheless, the interim plan was pre-cleared and upheld by the court. A majority-minority district which fell below the documented increase in the BVAP would have been subject to a Section 2 challenge. By insisting on benchmark figures wholly inconsistent with increases in the BVAP, Appellants attempt to sentence minorities complaining of vote-dilution to a fate similar to Sisyphus. Even though this court has found a Section 2 violation and required the parties to make adjustments based on the 1990 Census, Appellants would have us turn the Appellees away and have them prove a Section 2 violation all over again. We decline to impose such a requirement. Once a litigant has demonstrated vote dilution and the court has directed redress, the litigant need not prove vote dilution once again before a court can assess the merits of the proposed remedy. Otherwise, it is conceivable that courts may never reach the merits of the proposed remedy. Appellants have failed to demonstrate clear error. Again, we are satisfied that to the extent the current District 3 exceeds the benchmark, political incumbency and other political concerns were the driving force. D Appellants argue that the trial court erred in deciding which witnesses to credit and which to discount at trial. Factual findings from a bench trial are reviewed under the clearly erroneous standard. See Odom v. Frank, 3 F.3d 839 (5th Cir.1993); Fed.R.Civ.P.Rule 52(a). A finding is clearly erroneous when despite evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed. See Cupit v. McClanahan Contractors, Inc., 1 F.3d 346, 348 (5th Cir.1993). We conduct our review to determine whether the" }, { "docid": "491455", "title": "", "text": "made to comply with Section 5, enhance Democratic performance, or protect the incumbent, the changes were still made based on voters’ skin color. Weighing all the evidence and testimony provided on the record, the Court finds that racial considerations subordinated traditional districting principles and other non-racial districting criteria in - the creation of [¶] 75. The testimony from the three delegates primarily responsible for shaping the district, Delegates Jones, Tyler, and Dance, shows that the overriding objective was to achieve a 55% BVAP in [¶] 75. Achieving a 55% BVAP floor required “drastic maneuvering” that is reflected on the face of - the district and, according to Delegate Jones, would not otherwise have been, undertaken due to the impact on traditional county boundaries. Delegate Tyler herself found the boundaries “very irregular,” worried about her ability to cover her district .with ease, and was “concern[ed] about the decrease in number of black people in [her] district.” : Intervenors attempt to explain the boundary deviations by-ascribing a political purpose to them. But that attempt is not successful. As in Bush, the record shows that, in building [¶] 75, race-was used by Delegate Tyler herself as a proxy for Democratic voters in an effort to protect her own position as an incumbent at the expense of traditional districting principles. 517 U.S. at 972-73, 116 S.Ct. 1941 (principal opinion). When a legislator sorts voters by political affiliation or performance, then the deviation from neutral principles is a political one. But, when a legislator sorts voters by race, for whatever purpose, then the deviation is a racial one. As explained above, the lesson of Cromartie was that a political deviation would not be considered racial simply because the Democratic voters happened to be black. Cromartie I, 526 U.S. at 542, 119 S.Ct. 1545, The lesson, was not that a racial deviation-would be considered political simply because the black voters happened to be Democrats. , That is using race as a proxy for political affiliation, an approach that is prohibited. As to [¶] 75, the Plaintiffs have proved (without reference to Dr. Ansolabehere’s testimony) that race" }, { "docid": "491351", "title": "", "text": "claimed that .the 55% .figure came from “Delegate Dance, and Delegate Tyler, Delegate Spruill, and one or two othe[r] .... African-American members of the House.” Trial Tr. 431:4-7 (Jones). This was then narrowed to Delegates Dance, Tyler, and Spruill. Id. at 490:5-13. After further questioning, the 55% figure appears to have come from feedback that Delegate Spruill received from various groups in Virginia and from concerns that Delegate Tyler would be unable to hold her seat in [¶] 75 with a lower BVAP percentage. Id. at 494: 6-495:1. In discussing Delegate McClellan’s seat, by contrast, Delegate Jones indicated that, while “no one” was comfortable leaving the BVAP percentage in [¶] 71 at 46%, “they felt that we needed to have a performing majority-minority district, and from the members that I spoke to, they felt that it needed to be north of 50 percent minimum.” Id. at 293:6-16 (emphasis added). Based on the foregoing testimony, and the evidence set forth below, the Court finds — based on the record presented— that the 55% BVAP floor was based largely on concerns pertaining to the re-election of Delegate Tyler in [¶] 75 and on feedback received from Delegate Spruill and, to a lesser extent, Delegates Dance and Tyler. That figure was then applied across the board to all twelve of the Challenged Districts. C. The Passage and Enactment of HB 5005 During the redistricting process, the General Assembly initially considered three plans: HB 5001, HB 5002, and HB 5003. HB 5001 was the plan designed and proposed by Delegate Jones. HB 5002 and HB 5003, on the other hand, were designed by university students and proposed by other members of the House of Delegates. Id. at 376:24-378:9. According to Delegate Jones, HB 5002 paired somewhere between 40 and 48 incumbents, contained six majority-minority districts, and had over a 9% population deviation. Id. at 378:10-379:4. HB 5003, on the other hand, paired somewhere between 32-34 incumbents, contained nine or ten majority-minority districts, and also did not meet the population deviation criteria. Id. at 379:8-17. The Governor’s Commission also designed two plans that contained 13" } ]

[ { "docid": "22225636", "title": "", "text": "Panhandle Eastern Pipe Line Co. v. Michigan Public Service Comm’n, 341 U. S. 329, but the deficiencies of this system in the present context are apparent — -unless all States cooperate in enforcing a common regulation, the producer may pick a State which is sufficiently anxious for this scarce resource that it will take gas irrespective of the use. Therefore, it appears that, consistent with the congressional purpose of leaving no “attractive gap” in regulation, we must conclude that the “end-use” factor was properly of concern to the Commission. Price. As we read the opinion, the Commission’s second objection to certification was based on its forecast that this and similar direct sales of gas at unregulated prices higher than those allowed in sales for resale would attract gas to the high-bidding direct purchasers and thus lever upwards field prices both in direct sales and sales for resale. Respondents claim that this \"policy” consideration masks the Commission’s true purpose in this proceeding, which, according to respondents, is to bar direct sales absolutely, thus forcing all gas transactions into regulated channels. And respondents argue that such an absolute bar runs contrary to the intent of Congress as expressed in § 1 (b) of the Natural Gas Act quoted supra, the section which limits the FPC’s jurisdiction to sales for resale in interstate commerce. Were respondents correct in their interpretation of the Commission’s action in this case, we would be forced to agree that the Commission had overstepped its bounds. Certainly such action would be contrary to our previous statements that the term “public convenience and necessity” connotes a flexible balancing process, in the course of which all the factors are weighed prior to final determination. United States v. Detroit & Cleveland Navigation Co., supra. Indeed, as respondents argue, such a fiat rule would be doubly objectionable here because Congress has not given the Commission jurisdiction over direct sales. However, we cannot agree that the Commission propounded an absolute rule in this case. Examination of the opinion reveals recurrent reference to the absence of any one controlling factor; as the Commission stated, “countervailing" } ]

[ { "docid": "15248453", "title": "", "text": "the explicit prohibition of the statute denying jurisdiction over direct sales of gas for consumptive use has been consistently narrowed as courts and the FPC have increased the ambit of the jurisdictional grant over interstate transportation of such fuel. This has been done by analyses which recognized broad power in the FPC to grant certificates of public convenience and necessity in connection with the extension of pipeline facilities to service direct sales outlets. The most significant decision construing the FPC’s certificate jurisdiction is FPC v. Transcontinental Gas Pipe Line Corp., supra, which was decided after Congress had amended § 7 of the Act to greatly broaden the ambit of federal power. That case pointed out that in the original Act, § 7 restricted certification to instances where a pipeline sought to serve an area already being served by another regulated company. In 1942, § 7 took its present form requiring certification of every facility subject to the jurisdiction of the Commission. The amendment intended to change the certificate function, which formerly looked only to control of competition between regulated pipeline companies, to one which considered both relative end use values and price effect factors. This extension of the certificate function obviously detracted from the direct sale exclusion, but in Transcontinental, the Court affirmed that direct sales remained “. . . not subject to the Commission’s jurisdiction except insofar as § 7 requires the Commission to certificate the transportation of gas pursuant to the sale.” (Emphasis supplied.) Furthermore, in this same opinion, Chief Justice Warren avowed that § 7 powers of the FPC were limited. He observed that the Commission had sought but had not been awarded comprehensive authority over all aspects of gas conservation. His description of the power which Congress had been willing to confer on the FPC was the right to exercise a veto power over proposed transportation. 365 U.S. at 17, 81 S.Ct. 435. Against this background matrix of interpretive instruction, we must decide whether a new form of certificate jurisdiction never heretofore judicially recognized exists under § 7. The issue is: Does the FPC have the" }, { "docid": "15248450", "title": "", "text": "our compass oriented to legislative intent, we turn to the Act itself and the authorities which have construed it to date. In the Panhandle Eastern decision cited above, the Court, while recognizing the undoubted power of Congress to define the distribution, of power over interstate commerce, pointed out that the Natural Gas Act created an articulate legislative program creating a comprehensive regulatory scheme in which federal power complemented, but did not usurp, the existing authority of state regulatory agencies, 332 U.S. at 520, 68 S.Ct. 190. Congress was motivated by a desire to protect consumers against exploitation at the hands of natural gas customers, Sunray Mid-Continent Oil Co. v. Federal Power Commission, 364 U.S. 137, 147, 80 S.Ct. 1392, 4 L.Ed.2d 1623 (1960), but it did not decide that this protection was to be accomplished by arrogating all control over interstate commerce in natural gas to the federal agency. “[M]uch authority was reserved to the States.” Federal Power Commission v. Transcontinental Gas Pipe Line Corporation, 365 U.S. 1, 19, 81 S.Ct. 435, 445, 5 L.Ed.2d 377 (1961). Since a complete as well as a harmonious regulatory scheme was envisaged, an intent to leave no area of substance unregulated must also be recognized, and no “attractive gaps” should be created by judicial interpretation. Id. However, as Mr. Justice Black wrote in East Ohio Gas Co., supra, the location and breadth of such “gaps” must be adjudged in the light of what rights were defined by court precedents which existed prior to the time of legislation and not those since decided or which the courts would decide today. Without such a limit, judicial action would certainly become legislation. The coverage of the Natural Gas Act has been so succinctly and aptly described by Mr. Justice Rutledge that it would be presumptuous not to quote: Three things and three only Congress drew within its own regulatory power, delegated by the Act to its agent, the Federal Power Commission. These were: (1) the transportation of natural gas in interstate commerce; (2) its sale in interstate commerce for resale; and (3) natural gas companies engaged" }, { "docid": "23216747", "title": "", "text": "U.S.C.A. § 1 et seq., has slight force, if any, in determination of the word’s meaning under this different and far more comprehensive Act” (338 U.S. 469, n. 9, 70 S.Ct. at 269). Despite this clear explication of the meaning of transportation in interstate commerce under the Natural Gas Act, appellant contends that its operation, while admittedly between two states, does not fall under the terms of the Act, because the Congress has given the FPC jurisdiction only to the limits of the “Attleboro gap.” This picturesque phrase developed from events occurring after the Supreme Court’s decision in Public Utilities Commission of Rhode Island v. Attleboro Steam & Electric Company, 273 U.S. 83, 47 S.Ct. 294, 71 L.Ed. 549 (1927) which checked Rhode Island’s attempt to set rates on an electric company receiving power from Rhode Island in Massachusetts as a direct burden on interstate commerce. Subsequently, the Natural Gas Act was passed in 1938 with the intent to provide Federal regulation in the area declared by Attleboro to be immune from State regulation. As was pointed out in Panhandle Eastern Pipe Line Co. v. Public Service Commission of Indiana, 332 U.S. 507, 517, 68 S.Ct. 190, 195, 92 L.Ed. 128: “The Act, though extending federal regulation, had no purpose or effect to cut down state power. On the contrary, perhaps its primary purpose was to aid in making state regulation effective, by adding the weight of federal regulation to supplement and reinforce it in the gap created by the prior decisions.” See also, Federal Power Commission v. Southern California Edison Co., 376 U.S. 205, 84 S.Ct. 644, 11 L.Ed.2d 638 (1964) where the Court noted with reference to a similar statutory section of the Federal Power Act: “ * * * Congress meant to draw a bright line easily ascertained, between state and federal jurisdiction, making unnecessary such case-by-case analysis” (at 215-216, 84 S.Ct. at 651). Merely because Congress in passing the Natural Gas Act, did not totally preempt the field of State regulation, does not compel this Court to conclude that International’s transportation of natural gas across state" }, { "docid": "5562306", "title": "", "text": "reach of the result. Although the analytical basis requires the Commission to consider the facts and circumstances of each facility, the Commission again submerges this particularized analysis in an extended discussion of FERC’s broad national authority. The Commission is correct that “Congress did not desire that an important aspect of this field be left unregulated.” FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 19, 81 S.Ct. 435, 445, 5 L.Ed.2d 377 (1961). However, at the same time, the Court added that “Congress did not desire comprehensive federal regulation; much authority was reserved for the States.” Id. There is no question that in section 1(b) Congress intended to distinguish between transportation in interstate commerce and “any other transportation” related to facilities for the production or gathering of natural gas. The Commission’s announced intention to utilize the primary function test to evaluate these differences itself reinforces this distinction. However, the movement of gas alone from the wellhead cannot transform the services into interstate transportation. See 43 F.E.R.C. ¶ 61,305, at 61,845. We share the Fifth Circuit’s concern that the Commission has failed to provide a reasoned explanation for classifying these lines as jurisdictional. The gathering exemption was not meant to attach only to certain owners/operators but to facilities. If, as FERC maintains, the primary function test was intended to be more flexible, to avoid mechanical application of single factors, and to examine and weigh each element, the result must still be based on the calculation of these factors in this adjudication, not the Commission’s perception of national regulatory policy. Indeed, although FERC may construct sound policy in this case, we do not believe it satisfies its own precedent or the intent of Congress. IY. Regulatory Gap As an additional ground for asserting jurisdiction, the Commission adopted the AU’s conclusion that “the public interest requires a finding of jurisdiction because if the Commission did not regulate Northwest’s gathering charges, a regulatory gap would be created.” 38 F.E.R.C. ¶ 61,302, at 61,984. The Commission relies on FPC v. Transcontinental Gas Pipeline Corp., 365 U.S. 1, 28, 81 S.Ct. 435, 449-50, 5 L.Ed.2d" }, { "docid": "23216752", "title": "", "text": "states” (332 U.S. at 523, 68 S. Ct. at 198). Therefore, the conclusion must be drawn that appellant’s transportation of natural gas is “in interstate commerce” as used in the Natural Gas Act and not outside the “Attleboro gap.” International’s transportation differs from the Panhandle transportation in that International itself is the ultimate industrial purchaser, who is transporting its purchased gas across state lines. This hair-splitting over who is the transporter of the commodity is immaterial under the Gas Act. Analogously, the Court in East Ohio declared: “We find no language in the Act indicating that Congress meant to create an exception for every company transporting interstate gas in (this instance). Regardless of whether it might have been wiser and more farseeing statesmanship for Congress to have made such an exception, we should not do so through the interpretative process. There is nothing in the legislative history which authorizes us to interpret away the plain congressional mandate” (338 U.S. at 474, 70 S.Ct. at 272). Moreover in the structuring of this transaction, the parties have avoided the case of F. P. C. v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 81 S.Ct. 435, 5 L.Ed.2d 377 (1961) which held that federal jurisdiction extended under the Natural Gas Act to determine whether direct sales of gas would lead to economic waste or pricing difficulties. These considerations were held proper areas for FPC deliberation, because the Court found that appellant’s construction left an “attractive gap” in the regulations, which it was the intent of Congress to close. Mere formalisms urged by the appellant in the present case should not be able to alter this policy of Congress reaffirmed by the Court in the Transcontinental case. International’s reliance on the United Gas Pipe Line Co. v. FPC case, 385 U.S. 83, 87 S.Ct. 265, 17 L.Ed.2d 181 (1966) is misplaced. While Justice White does refer at page 89, 87 S.Ct. 265 to certain specific transportation activities such as for hire, or for sale, and whether the sale is for consumption or resale, he concludes that all of this constitutes transportation in interstate" }, { "docid": "5343257", "title": "", "text": "with the Cities’ argument. The Commission has an independent grant of jurisdiction that applies to “the transportation of natural gas in interstate commerce.” As the Court stated in Louisiana Power and Light Co., 406 U.S. at 636, 92 S.Ct. at 1836: Each of these is an independent grant of jurisdiction and though the Act’s application to “sales” is limited to sales of interstate gas for resale, the Act applies to interstate “transportation” regardless of whether the gas transported ultimately is sold for retail or wholesale. FPC v. East Ohio Gas Co., 338 U.S. 464, 468, 70 S.Ct. 266, 268, 94 L.Ed. 268 (1950). Since it is conceded here that the gas was transported in interstate commerce, the Commission has power to require a plan of curtailment for that gas. The grant of extraordinary relief is merely altering the curtailment plan to meet the particular needs of some gas users. Even if the users immediately affected are all direct sale customers, granting extraordinary relief is simply regulating the transportation of interstate natural gas. There is no need for the presence of resale customers for the FPC to have jurisdiction. Cf. American Smelting and Refining Co. v. FPC, supra. In construing jurisdiction under the Natural Gas Act, this court must be cognizant of Congress’ intent to create a comprehensive and effective regulatory scheme. See, Panhandle Eastern Pipeline Co. v. Public Service Commission, 332 U.S. 507, 520, 68 S.Ct. 190, 92 L.Ed. 128 (1947). The Commission, moreover, should possess flexible and adequate powers to deal with the unanticipated gas shortage problem, Mobil Oil Corp. v. FPC, supra. In light of these considerations, we have no difficulty in concluding that the Commission has jurisdiction to fine-tune these curtailment plans in applications for extraordinary relief as presented here. The Commission must have the power to avoid untoward results to individual customers who would be irreparably harmed by the operation of a curtailment plan which is otherwise satisfactory. Cf. United States Steel Corp. v. FPC, 166 U.S.App.D.C. 309, 510 F.2d 689 (1975). II. The Cities’ second contention is that the Commission’s order naturally results in the" }, { "docid": "23216756", "title": "", "text": "S.Ct. 794). And similarly, in the Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968), the Court in discussing a Power Commission action said: “Nor may its order properly be set aside merely because the Commission has on an earlier occasion reached another result; administrative authorities must be permitted, consistently with the obligations of due process, to adapt their rules and policies to the demands of changing circumstances” (at 784, 88 S.Ct. at 1369). The disclaimers relied upon here were such that they could be validly overruled. None of the four cases were contested and disposition was essentially on a consent basis. Since both sides were in agreement, there was no judicial review. The earliest of the disclaimers, Anchor Hocking, was granted under the language of the Act as it read in 1938 and not in 1942, after an amendment went into effect, described in East Ohio, supra, as “broadening the Commission’s powers over the construction or extension of pipe lines” (338 U.S. at 468, 70 S.Ct. at 269). The limits of the Commission’s jurisdiction have been constantly under review and subject to interpretation since the passage of the Act and it has not remained in the same mold throughout the years. The Supreme Court, as recently as 1961, clarified the jurisdiction of FPC to regulate end uses and prices in certain direct sales. Transcontinental Gas Pipe Line Corp., supra. Therefore, this Court finds appropriate the overruling of these disclaimers on the grounds stated in the Commission’s Order (App. 305, para. 38): “Partly as a result of a modified statutory standard and partly as the product of accumulated experience.” Finally, the Court rejects the argument of appellant that there is no prior administrative error here for the Commission to overrule, because the Third Circuit has approved these precedents in Public Service Electric & Gas Co. v. FPC, 371 F.2d 1, 5 (3rd Cir. 1967). In that case, however, natural gas was being taken as a bailment by Transcontinental Gas Pipe Line Corporation to Texaco’s plant terminus in West Deptford, New Jersey. The interstate transportation" }, { "docid": "23216753", "title": "", "text": "avoided the case of F. P. C. v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 81 S.Ct. 435, 5 L.Ed.2d 377 (1961) which held that federal jurisdiction extended under the Natural Gas Act to determine whether direct sales of gas would lead to economic waste or pricing difficulties. These considerations were held proper areas for FPC deliberation, because the Court found that appellant’s construction left an “attractive gap” in the regulations, which it was the intent of Congress to close. Mere formalisms urged by the appellant in the present case should not be able to alter this policy of Congress reaffirmed by the Court in the Transcontinental case. International’s reliance on the United Gas Pipe Line Co. v. FPC case, 385 U.S. 83, 87 S.Ct. 265, 17 L.Ed.2d 181 (1966) is misplaced. While Justice White does refer at page 89, 87 S.Ct. 265 to certain specific transportation activities such as for hire, or for sale, and whether the sale is for consumption or resale, he concludes that all of this constitutes transportation in interstate commerce under the Act; and his list is not exclusive. He equates transportation of natural gas under the Act with “the movement of gas in interstate commerce.” The opinion does not indicate, that just because the transportation across state lines is for one’s own use, it should be outside of FPC jurisdiction. Rather he unequivocally states, “The Act gives the Commission jurisdiction over interstate transportation of natural gas as a separate and distinct matter * * * ” (at 89, 87 S. Ct. at 269). One of the appellant’s major arguments is that there were four disclaimers issued by the Commission in previous years that appear to cover transactions similar to that which is attempted here and that these prior disclaimers established precedents which should control. These disclaimers here-inbefore referred to include: Anchor Hocking, Jersey Central, Montana Power, and Reynolds Metals. It is a well established law, however, that questionable decisions of adjudicatory bodies may be overruled in appropriate circumstances. As Justice Frankfurter stated in Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84" }, { "docid": "23070792", "title": "", "text": "of natural gas in interstate commerce,” just as the Illinois company came directly within the express provision covering sale for resale. And in the light of the Illinois Gas decision we cannot see how the “local distribution” proviso can be construed as encompassing all of East Ohio’s operations throughout the state. That proviso cannot mean one thing for “transportation” and another where “sale for resale” is involved. Here as elsewhere, once a company is properly found to be a “natural-gas company,” no state can interfere with federal regulation. That a state commission might also have some regulatory power would not pre elude exercise of the Commission’s function. Connecticut Light & Power Co. v. Federal Power Comm’n, 324 U. S. 515, 533; Public Utilities Comm’n v. Attleboro Co., 273 U. S. 83, 89-90. Nor does the Act purport to abolish all overlapping. Section 5 (b), for example, provides that the Commission may “investigate and determine the cost of the production or transportation of natural gas by a natural-gas company in cases where the Commission has no authority to establish a rate governing the transportation or sale of such natural gas.” 52 Stat. 824. Yet clearly the state agency establishing such a rate would have equivalent authority. We find no language in the Act indicating that Congress meant to create an exception for every company transporting interstate gas in only one state. Regardless of whether it might have been wiser and more farseeing statesmanship for Congress to have made such an exception, we should not do so through the interpretative process. There is nothing in the legislative history which authorizes us to interpret away the plain congressional mandate. II. A contention not passed on by the Court of Appeals but urged here by respondents, is that compliance with the Commission’s accounting and report orders would impose so great a burden on East Ohio “as to make such orders transgress statutory and federal constitutional limits.” Our attention is not specifically referred to anything in the record showing that the Commission has required East Ohio to adopt any particular accounting method or make any" }, { "docid": "22391892", "title": "", "text": "Line Co. v. Public Service Comm’n, 332 U. S. 507, 516, § 1 (b) made the Natural Gas Act applicable to three separate things: ‘(1) the transportation of natural gas in interstate commerce; (2) its sale in interstate commerce for resale; and (3) natural gas companies engaged in such transporation or sale.’ And throughout the Act ‘transportation’ and ‘sale’ are viewed as separate subjects of regulation. They have independent and equally important places in the Act. Thus, to adopt respondents’ construction would unduly restrict the Commission’s power to carry out one of the major policies of the Act. Moreover, the initial interest of Congress in regulation of transportation facilities was reemphasized in 1942 by passage of an amendment to § 7 (c) of the Act broadening the Commission’s powers over the construction or extension of pipe lines. 56 Stat. 83. This amendment followed a report of the Commission to Congress pointing out that without amendment the Act vested the Commission with inadequate power to make ‘any serious effort to control the unplanned construction of natural-gas pipe lines with a view to conserving one of the country’s valuable but exhaustible energy resources.’ We hold that the word ‘transportation’ like the phrase ‘interstate commerce’ aptly describes the movements of gas in East Ohio’s high-pressure pipe lines.” 338 U. S. 464, 468-469 (1950) (footnotes omitted). It is well established that the proviso was added to the Act merely for clarification and was not intended to deprive FPC of any jurisdiction otherwise granted by § 1 (b). FPC v. Transcontinental Gas Pipe Line Co., 365 U. S. 1 (1961); FPC v. East Ohio Gas Co., 338 U. S. 464 (1950). The House report on the bill described this second sentence of § 1 (b) as follows: “The quoted words are not actually necessary, as the matters specified therein could not be said fairly to be covered by the language affirmatively stating the jurisdiction of the Commission, but similar language was in previous bills, and, rather than invite the contention, however unfounded, that the elimination of the negative language would broaden the scope of the" }, { "docid": "624375", "title": "", "text": "instructed that “a need for federal regulation does not establish FPC jurisdiction that Congress has not granted.” Louisiana Power & Light Co., 406 U.S. 621, 635-36, 92 S.Ct. 1827, 1836, 32 L.Ed.2d 369 (1972). Therefore, we must first determine whether Congress granted the Commission jurisdiction over Mountain Fuel’s producing reserves by the terms of the Act. In addition to jurisdiction over sales of natural gas in interstate commerce for resale and “natural-gas companies,” 15 U.S.C. § 717(b), the Act’s grant of “broad powers,” FPC v. Louisiana Power & Light Co., 406 U.S. at 631, 92 S.Ct. at 1833, “gives the Commission jurisdiction over interstate transportation of natural gas as a separate and distinct matter, whether the transportation is for hire or for sale and whether the sale is for consumption or for resale.” United Gas Pipe Line Co. v. FPC, 385 U.S. 83, 89, 87 S.Ct. 265, 269, 17 L.Ed.2d 181 (1966). See also FPC v. Louisiana Power & Light Co., 406 U.S. at 636, 92 S.Ct. at 1836 (“[T]he Act applies to interstate ‘transportation’ regardless of whether the gas transported is ultimately sold retail or wholesale”). It is true that the statute’s jurisdictional grant does not explicitly refer to the producing reserves from which natural gas is drawn before being transportated in interstate commerce for sale. However in United Gas Pipe Line v. FPC, the Court pointed to the Commission’s authority granted in § 16 for the Commission to perform any and all acts and to issue orders, rules and regulations necessary to carry out the provisions of the statute. 385 U.S. at 90, 87 S.Ct. at 269. Continental Oil Company terminated its natural gas sales contract with United Gas Pipe Line Company and filed a rate increase with the Commission. After the Commission accepted the filing, over United’s protest, United ceased accepting gas from the field affected by the rate increase. The Commission ordered United to recommence purchasing and accepting deliveries from the field at the new rate but at the volumes set out in the prior contract. In challenging the Commission’s order before the Supreme Court, United" }, { "docid": "624374", "title": "", "text": "will include transportation of the pipeline’s own production, that natural gas is dedicated to interstate commerce and is subject to our jurisdiction. J.A. A:ll. Petitioners challenge this jurisdictional ruling. They argue that Mountain Fuel’s producing reserves are not dedicated to interstate commerce because Mountain Fuel does not make sales in interstate commerce for resale. Mountain Fuel makes such sales, but they are to customers for consumption. Petitioners’ Brief at 24-30. They also contend that Mountain Fuel has no federal service obligation to deliver its producing reserves into interstate com merce for sale to its Utah retail customers. Petitioners’ Brief at 30-34. “The only federal ‘service’ obligation affixed to Mountain Fuel is the distinguishable obligation of the Northern System to transport any and all natural gas delivered to its mouth by Mountain Fuel into Mountain Fuel’s distribution systems.” Petitioners’ Brief at 32. We disagree with petitioners’ jurisdictional analysis and uphold the Commission’s ruling under the terms of the Act, its interpretation by the Supreme Court, and policy considerations which favor the Commission’s position. A We are instructed that “a need for federal regulation does not establish FPC jurisdiction that Congress has not granted.” Louisiana Power & Light Co., 406 U.S. 621, 635-36, 92 S.Ct. 1827, 1836, 32 L.Ed.2d 369 (1972). Therefore, we must first determine whether Congress granted the Commission jurisdiction over Mountain Fuel’s producing reserves by the terms of the Act. In addition to jurisdiction over sales of natural gas in interstate commerce for resale and “natural-gas companies,” 15 U.S.C. § 717(b), the Act’s grant of “broad powers,” FPC v. Louisiana Power & Light Co., 406 U.S. at 631, 92 S.Ct. at 1833, “gives the Commission jurisdiction over interstate transportation of natural gas as a separate and distinct matter, whether the transportation is for hire or for sale and whether the sale is for consumption or for resale.” United Gas Pipe Line Co. v. FPC, 385 U.S. 83, 89, 87 S.Ct. 265, 269, 17 L.Ed.2d 181 (1966). See also FPC v. Louisiana Power & Light Co., 406 U.S. at 636, 92 S.Ct. at 1836 (“[T]he Act applies to interstate ‘transportation’" }, { "docid": "23216746", "title": "", "text": "Natural Gas Act applicable to three separate things: ‘(1) the transportation of natural gas in interstate commerce; (2) its sale in interstate commerce for resale; and (3) natural gas companies engaged in süch transportation or sale.’ And throughout the Act ‘transportation’ and ‘sale’ are viewed as separate subjects of regulation. They have independent and equally important places in the Act. Thus, to adopt respondents’ construction would unduly restrict the Commission’s power to carry out one of the major policies of the Act” (at 468, 70 S.Ct. at 269). In an accompanying footnote, he distinguished the cases cited by appellant, the Pipe Line Cases, 234 U.S. 548, 34 S.Ct. 956, 58 L.Ed. 1459 (1914) (Uncle Sam Oil Company), which held in part that the Interstate Commerce Act did not encompass “transportation” when the company was “simply drawing oil from its own wells across a state line to its own refinery, for its own use, and that is all * * He comments: “This holding as to the meaning of transportation in the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., has slight force, if any, in determination of the word’s meaning under this different and far more comprehensive Act” (338 U.S. 469, n. 9, 70 S.Ct. at 269). Despite this clear explication of the meaning of transportation in interstate commerce under the Natural Gas Act, appellant contends that its operation, while admittedly between two states, does not fall under the terms of the Act, because the Congress has given the FPC jurisdiction only to the limits of the “Attleboro gap.” This picturesque phrase developed from events occurring after the Supreme Court’s decision in Public Utilities Commission of Rhode Island v. Attleboro Steam & Electric Company, 273 U.S. 83, 47 S.Ct. 294, 71 L.Ed. 549 (1927) which checked Rhode Island’s attempt to set rates on an electric company receiving power from Rhode Island in Massachusetts as a direct burden on interstate commerce. Subsequently, the Natural Gas Act was passed in 1938 with the intent to provide Federal regulation in the area declared by Attleboro to be immune from State regulation. As" }, { "docid": "23216748", "title": "", "text": "was pointed out in Panhandle Eastern Pipe Line Co. v. Public Service Commission of Indiana, 332 U.S. 507, 517, 68 S.Ct. 190, 195, 92 L.Ed. 128: “The Act, though extending federal regulation, had no purpose or effect to cut down state power. On the contrary, perhaps its primary purpose was to aid in making state regulation effective, by adding the weight of federal regulation to supplement and reinforce it in the gap created by the prior decisions.” See also, Federal Power Commission v. Southern California Edison Co., 376 U.S. 205, 84 S.Ct. 644, 11 L.Ed.2d 638 (1964) where the Court noted with reference to a similar statutory section of the Federal Power Act: “ * * * Congress meant to draw a bright line easily ascertained, between state and federal jurisdiction, making unnecessary such case-by-case analysis” (at 215-216, 84 S.Ct. at 651). Merely because Congress in passing the Natural Gas Act, did not totally preempt the field of State regulation, does not compel this Court to conclude that International’s transportation of natural gas across state lines was not within FPC jurisdiction. Such an argument was made in East Ohio Gas, supra, based on the “gap” in which Congress had regulated, to contend that transportation across state lines for consumption was without the coverage of the Act. While Justice Black “adhere(d) to those statements” of the Court on the “Attle-boro gap,” he did not concede that this made the gas company’s enterprise non-jurisdictional. “(Congress) therefore acted under the federal commerce power to regulate what these decisions had indicated that the states could not. We have already held that in so doing Congress subjected to federal regulation a company transporting interstate gas, and selling it for resale, wholly within one state. * * * The only respect in which East Ohio differs from the company is that it sells gas direct to consumers rather than for resale. This difference is immaterial. For as we have already pointed out, East Ohio comes directly within the express provision granting power to the Commission to regulate ‘transportation of natural gas in interstate commerce,’ just as" }, { "docid": "23216751", "title": "", "text": "these contentions. While holding that the sales were subject to state regulation and not within the “Attleboro gap,” nevertheless, it held that the actual transportation of the gas by the pipe line company across state lines to the point of the direct sale was still under FPC jurisdiction and in interstate commerce. In the Indiana case, for example, the contention was made that to allow the States these regulatory powers over the sales would lead to conflicts between each of the states and between the states and the FPC. The court replied: “There is no evidence thus far of substantial conflict in either respect and we do not see that the probability of serious conflict is so strong as to outweigh the vital local interests to which we have referred requiring regulation by the states. Moreover, if such conflict should develop, the matter of interrupting service is one largely related, as appellees say, to transportation and thus within the jurisdiction of the Federal Power Commission to control, in accommodation of any conflicting interests among various states” (332 U.S. at 523, 68 S. Ct. at 198). Therefore, the conclusion must be drawn that appellant’s transportation of natural gas is “in interstate commerce” as used in the Natural Gas Act and not outside the “Attleboro gap.” International’s transportation differs from the Panhandle transportation in that International itself is the ultimate industrial purchaser, who is transporting its purchased gas across state lines. This hair-splitting over who is the transporter of the commodity is immaterial under the Gas Act. Analogously, the Court in East Ohio declared: “We find no language in the Act indicating that Congress meant to create an exception for every company transporting interstate gas in (this instance). Regardless of whether it might have been wiser and more farseeing statesmanship for Congress to have made such an exception, we should not do so through the interpretative process. There is nothing in the legislative history which authorizes us to interpret away the plain congressional mandate” (338 U.S. at 474, 70 S.Ct. at 272). Moreover in the structuring of this transaction, the parties have" }, { "docid": "23216750", "title": "", "text": "the Illinois company came directly within the express provision covering sale for resale” (338 U.S. at 473, 70 S.Ct. at 271). Similarly, the appellant’s activities fall directly under the terms of the Act as to transportation of gas in interstate commerce and are properly subject to FPC regulation. No case has been cited by the appellant that would indicate that this type of transportation was immune from federal regulation. Indeed if contract arrangements of this type were to be condoned and thus encouraged, it would so limit the Commission’s authority as to defeat the purposes of the Act. References in both Panhandle Eastern Pipe Line Co. v. Pub. Service Comm, of Indiana, supra, and Panhandle Eastern Pipe Line Co. v. Michigan Public Service Commission, 341 U.S. 329, 71 S.Ct. 777, 95 L.Ed. 993 (1951) so indicate. In these latter cases a pipe line company sought to defer local state regulation of its direct sale to industrial consumers on the grounds that such sales were subject to the jurisdic tion of the FPC. The courts rejected these contentions. While holding that the sales were subject to state regulation and not within the “Attleboro gap,” nevertheless, it held that the actual transportation of the gas by the pipe line company across state lines to the point of the direct sale was still under FPC jurisdiction and in interstate commerce. In the Indiana case, for example, the contention was made that to allow the States these regulatory powers over the sales would lead to conflicts between each of the states and between the states and the FPC. The court replied: “There is no evidence thus far of substantial conflict in either respect and we do not see that the probability of serious conflict is so strong as to outweigh the vital local interests to which we have referred requiring regulation by the states. Moreover, if such conflict should develop, the matter of interrupting service is one largely related, as appellees say, to transportation and thus within the jurisdiction of the Federal Power Commission to control, in accommodation of any conflicting interests among various" }, { "docid": "23216749", "title": "", "text": "lines was not within FPC jurisdiction. Such an argument was made in East Ohio Gas, supra, based on the “gap” in which Congress had regulated, to contend that transportation across state lines for consumption was without the coverage of the Act. While Justice Black “adhere(d) to those statements” of the Court on the “Attle-boro gap,” he did not concede that this made the gas company’s enterprise non-jurisdictional. “(Congress) therefore acted under the federal commerce power to regulate what these decisions had indicated that the states could not. We have already held that in so doing Congress subjected to federal regulation a company transporting interstate gas, and selling it for resale, wholly within one state. * * * The only respect in which East Ohio differs from the company is that it sells gas direct to consumers rather than for resale. This difference is immaterial. For as we have already pointed out, East Ohio comes directly within the express provision granting power to the Commission to regulate ‘transportation of natural gas in interstate commerce,’ just as the Illinois company came directly within the express provision covering sale for resale” (338 U.S. at 473, 70 S.Ct. at 271). Similarly, the appellant’s activities fall directly under the terms of the Act as to transportation of gas in interstate commerce and are properly subject to FPC regulation. No case has been cited by the appellant that would indicate that this type of transportation was immune from federal regulation. Indeed if contract arrangements of this type were to be condoned and thus encouraged, it would so limit the Commission’s authority as to defeat the purposes of the Act. References in both Panhandle Eastern Pipe Line Co. v. Pub. Service Comm, of Indiana, supra, and Panhandle Eastern Pipe Line Co. v. Michigan Public Service Commission, 341 U.S. 329, 71 S.Ct. 777, 95 L.Ed. 993 (1951) so indicate. In these latter cases a pipe line company sought to defer local state regulation of its direct sale to industrial consumers on the grounds that such sales were subject to the jurisdic tion of the FPC. The courts rejected" }, { "docid": "6838640", "title": "", "text": "507, 514-21, 68 S.Ct. 190, 193-98, 92 L.Ed. 128 (1947); Illinois Natural Gas Co. v. Central Ill. Pub. Serv. Co., 314 U.S. 498, 504-08, 62 S.Ct. 384, 386-88, 86 L.Ed. 371 (1942); National Ass'n of Regulatory Util. Comm’rs v. FERC, 823 F.2d 1377, 1382-87 (10th Cir.1987). .For an overview of the Commission’s transportation jurisdiction, see generally Louisiana Power & Light, 406 U.S. at 636-40, 92 S.Ct. at 1836-38; United Gas Pipe Line Co. v. FPC, 385 U.S. 83, 89, 87 S.Ct. 265, 269, 17 L.Ed.2d 181 (1966); East Ohio Gas, 338 U.S. at 467-74, 70 S.Ct. at 268-72; Cascade Natural Gas Corp. v. FERC, 955 F.2d 1412, 1415-21 (10th Cir.1992); Michigan Consol. Gas Co. v. FERC, 883 F.2d 117, 121-22 (D.C.Cir.1989). . The LDCs briefly argue that NGA § 1(c), the so-called \"Hinshaw exemption,” deprives the Commission of jurisdiction over their capacity sales to their own end-users. In this regard, they refer us to Congress’ determination in § 1 (c) that certain pipelines tire “matters primarily of local concern and subject to regulation by the several States.” 15 U.S.C. § 717(c). Section 1(c), however, addresses a very specific type of natural gas pipeline, namely those \"interstate pipelines that receive natural gas at their state boundary that is consumed within the state and subject to state commission regulation.” ANR Pipeline Co. v. FERC, 71 F.3d 897, 898 n. 2 (D.C.Cir.1995). Accordingly, we reject the LDCs’ claim, given that the LDCs do not suggest that they fall within that specific class of pipelines. . Our opinion should not be read to either approve or disapprove the Commission’s reading of the Natural Gas Act in this regard. . Accord Texas Eastern Transmission Corp., 51 F.E.R.C, ¶ 61,170 (1990) (\"The Philadelphia Gas Works requests clarification that all the conditions imposed upon [capacity brokering] program participants do not apply to municipalities. Since municipalities are beyond the jurisdiction of this Commission, the Philadelphia Gas Works is correct.”); Northwest Alabama Gas District, 42 F.E.R.C. ¶ 61,371, at 62,086, 1988 WL 391438 (1988) (“It is well settled that we cannot regulate a municipality under the NGA or the" }, { "docid": "23070793", "title": "", "text": "authority to establish a rate governing the transportation or sale of such natural gas.” 52 Stat. 824. Yet clearly the state agency establishing such a rate would have equivalent authority. We find no language in the Act indicating that Congress meant to create an exception for every company transporting interstate gas in only one state. Regardless of whether it might have been wiser and more farseeing statesmanship for Congress to have made such an exception, we should not do so through the interpretative process. There is nothing in the legislative history which authorizes us to interpret away the plain congressional mandate. II. A contention not passed on by the Court of Appeals but urged here by respondents, is that compliance with the Commission’s accounting and report orders would impose so great a burden on East Ohio “as to make such orders transgress statutory and federal constitutional limits.” Our attention is not specifically referred to anything in the record showing that the Commission has required East Ohio to adopt any particular accounting method or make any particular report not reasonably related to the Commission’s granted powers in this respect. Nor did the Commission fail to make proper findings to support its order. All of the Commission requirements affirmatively appear to call for the precise kind of accounting system, information, and reports that Congress deemed relevant and necessary for the Commission to have in performing its regulatory duties. The principles of law governing such requirements were adequately set out by Mr. Justice Cardozo speaking for the Court in American Telephone & Telegraph Co. v. United States, 299 U. S. 232. See also Northwestern Electric Co. v. Federal Power Comm’n, 321 U. S. 119. Measured by these criteria for judicial review of such orders, we find no reason to reject the Commission’s findings that the orders here issued were necessary and proper as applied to East Ohio. And as to the cost of compliance, it is sufficient to say as the Court said in the American Telephone & Telegraph case, supra, p. 247: “The evidence does not show that the expense . ." }, { "docid": "6838639", "title": "", "text": "release capacity only for so long as the temperature remains above a certain level. If the temperature were to drop, the firm capacity rights would revert to the releasing shipper. Order No. 636, ¶ 30,939, at 30,418. . FERC has amended the short-term transactions provision specifically to encompass those capacity releases of no more than 31 days. See supra at 1127 n. 18. That amendment does not affect our review. . The transaction must still be posted on the EBB. In addition, extensions and roll-overs of \"short-term” transactions are prohibited. 18 C.F.R. § 284.243(h)(2); Order No. 636, ¶ 30,939, at 30,551. . Order No. 636 pre-granted shippers a limited blanket certificate under NGA § 7 to release capacity in a nondiscriminatory manner. 18 C.F.R. § 284.243(g); Order No. 636, ¶ 30,939, at30,421. . For an overview of the history of the Act's inception, see generally Arkansas Elec. Coop. v. Arkansas Pub. Serv. Comm'n, 461 U.S. 375, 377-80, 103 S.Ct. 1905, 1908-10, 76 L.Ed.2d 1 (1983); Panhandle Pipe Line Co. v. Public Serv. Comm'n, 332 U.S. 507, 514-21, 68 S.Ct. 190, 193-98, 92 L.Ed. 128 (1947); Illinois Natural Gas Co. v. Central Ill. Pub. Serv. Co., 314 U.S. 498, 504-08, 62 S.Ct. 384, 386-88, 86 L.Ed. 371 (1942); National Ass'n of Regulatory Util. Comm’rs v. FERC, 823 F.2d 1377, 1382-87 (10th Cir.1987). .For an overview of the Commission’s transportation jurisdiction, see generally Louisiana Power & Light, 406 U.S. at 636-40, 92 S.Ct. at 1836-38; United Gas Pipe Line Co. v. FPC, 385 U.S. 83, 89, 87 S.Ct. 265, 269, 17 L.Ed.2d 181 (1966); East Ohio Gas, 338 U.S. at 467-74, 70 S.Ct. at 268-72; Cascade Natural Gas Corp. v. FERC, 955 F.2d 1412, 1415-21 (10th Cir.1992); Michigan Consol. Gas Co. v. FERC, 883 F.2d 117, 121-22 (D.C.Cir.1989). . The LDCs briefly argue that NGA § 1(c), the so-called \"Hinshaw exemption,” deprives the Commission of jurisdiction over their capacity sales to their own end-users. In this regard, they refer us to Congress’ determination in § 1 (c) that certain pipelines tire “matters primarily of local concern and subject to regulation by the" } ]

[ { "docid": "22716631", "title": "", "text": "property, without due process of law.” In 1883, this Court in the Civil Rights Cases, 109 U. S. 3, affirmed the essential dichotomy set forth in that Amendment between deprivation by the State, subject to scrutiny under its provisions, and private conduct, “however discriminatory or wrongful,” against which the Fourteenth Amendment offers no shield. Shelley v. Kraemer, 334 U. S. 1 (1948). We have reiterated that distinction on more than one occasion since then. See, e. g., Evans v. Abney, 396 U. S. 435, 445 (1970); Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 171-179 (1972). While the principle that private action is immune from the restrictions of the Fourteenth Amendment is well established and easily stated, the question whether particular conduct is “private,” on the one hand, or “state action,” on the other, frequently admits of no easy answer. Burton v. Wilmington Parking Authority, 365 U. S. 715, 723 (1961); Moose Lodge No. 107 v. Irvis, supra, at 172. Here the action complained of was taken by a utility company which is privatély owned and operated, but which in many particulars of its business is subject to extensive state regulation. The mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment. 407 U. S., at 176-177. Nor does the fact that the regulation is extensive and detailed, as in the case of most public utilities, do so. Public Utilities Comm’n v. Poliak, 343 U. S. 451, 462 (1952). It may well be that acts of a heavily regulated utility with at least something of a governmentally protected monopoly will more readily be found to be “state” acts than will the acts of an entity lacking these characteristics. [But the inquiry must be whether there is a sufficiently\"'dose nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself?] Moose Lodge No. 107, supra, at 176. The true nature of the State’s" } ]

[ { "docid": "10497877", "title": "", "text": "matter how broadly construed, alleges no such conspiracy. Finally, it does not appear from the allegations of the complaint that Mr. Miller was deprived of any of his constitutional rights. y Mr. Miller’s claims against Defense Attorney Zook and Mr. Barkes suffer no better fate, although for different reasons. To make out a claim under Section 1983, a plaintiff must show that (1) the defendant or defendants acted under color or authority of law; and (2) the defendant or defendants deprived the plaintiff of a right, privilege or immunity secured by the Constitution and laws of the United States. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Section 1983 generally does not address the conduct of private individuals. Congress’ intent in enacting Section 1983 was to allow individuals’ suits directed at civil rights violations by the states; accordingly, Section 1983 was directed only to action taken under color of state law. Lugar v. Edmonson Oil Co., Inc., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Monroe v. Pape, supra. A Privately retained attorneys do not act under color of state law simply because they practice in state courts. Hansen v. Ahlgrimm, 520 F.2d 768, 770 (7th Cir.1985); Skolnick v. Martin, 317 F.2d 855, 857 (7th Cir.), cert. denied 375 U.S. 908, 84 S.Ct. 199, 11 L.Ed.2d 406, reh. denied 375 U.S. 960, 84 S.Ct. 440, 11 L.Ed.2d 319 (1963). Even defense attorneys appointed to represent an indigent defendant in a criminal case do not act “under color of state law”; there is no “state action” such as will give rise to an action under Section 1983. Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). A public defender is not immune from Section 1983 liability for deprivations of civil rights through conspiracy with public officials, Tower v. Glover, 467 U.S. 914, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984), but that is the rule with respect to all private parties. Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). As noted above, Mr. Miller’s attempt" }, { "docid": "23135220", "title": "", "text": "The Supreme Court noted that“[w]ithout a limit such as this, private parties could face constitutional litigation whenever they seek to rely on some state rule governing their interactions with the community surrounding them.” Id. at 937, 102 S.Ct. at 2754. Attorneys performing their traditional functions will not be considered state actors solely on the basis of their position as officers of the court. See, e.g., Polk County v. Dodson, 454 U.S. 312, 318, 102 S.Ct. 445, 450, 70 L.Ed.2d 509 (1981) (“[A] lawyer representing a client is not, by virtue of being an officer of the court, a state actor ‘under color of state law’ within the meaning of § 1983.”); Barnard v. Young, 720 F.2d 1188, 1189 (10th Cir.1983) (“[P]rivate attorneys, by virtue of being officers of the court, do not act under color of state law within the meaning of section 1983.”). Angelico asserts, however, that the attorneys acted as state officers in issuing the subpoenas because the “state subpoena procedures now empower the attorneys, as officers of the state, to use subpoenas to seize property without a hearing before a state court judge and without participation by the sheriff.” Appellant’s Br. at 44. Angelico, however, offers no authority to support this statement. Nor does Pennsylvania law provide any indication that attorneys have been granted elevated powers to use subpoenas. As we said in Jordan, “[b]efore private persons can be considered state actors for purposes of section 1988, the state must significantly contribute to the constitutional deprivation, e.g., authorizing its own officers to invoke the force of law in aid of the private persons’ request.” 20 F.3d at 1266. Angelico claims that by issuing a subpoena, private attorneys use “the same compulsive powers of the state.” Appellant’s Br. at 45. We disagree. In Jordan, attorneys, on behalf of a client, entered a judgment by confession and then executed on that judgment. See id. at 1264-67. We held that an “entry of the judgment is not a state action involving the force of law to an extent sufficient to hold that private persons become state actors.” Id. at 1266." }, { "docid": "13182837", "title": "", "text": "Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357-358, 95 S.Ct. 449, 456-57, 42 L.Ed.2d 477. That programs undertaken by the State result in substantial funding of the activities of a private entity is no more persuasive than the fact of regulation of such an entity in demonstrating that the State is responsible for decisions made by the entity in the course of its business. Id. at 2789 (emphasis added). The Court specifically concluded that nursing homes do not perform a function that falls within the exclusive prerogative of the state. Id. at 2789-90. The Court stated: We are also unable to conclude that the nursing homes perform a function that has been “traditionally the exclusive prerogative of the State.” Jackson v. Metropolitan Edison Co., supra, at 353, 95 S.Ct., at 454.... Even if respondents’ characterization of the State’s duties were correct, however, it would not follow that decisions made in the day-to-day administration of a nursing home are the kind of decisions traditionally and exclusively made by the sovereign for and on behalf of the public. Indeed, respondents make no such claim, nor could they. Id. (emphasis added). In Blum the Supreme Court likened the nursing home situation to the public defender situation in Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). Blum v. Yaretsky, 102 S.Ct. at 2788. The Court explained: This case, therefore, is not unlike Polk County v. Dodson, ... in which the question was whether a public defender acts “under color of” state law within the meaning of 42 U.S.C. § 1983 when representing an indigent defendant in a state criminal proceeding. Although the public defender was employed by the State and appointed by the State to represent the respondent, we concluded that “[t]his assignment entailed functions and obligations in no way dependent on state authority.”. .. The decisions made by the public defender in the course of representing his client were framed in accordance with professional canons of ethics, rather than dictated by any rule of conduct imposed by the State. The same is true of nursing home" }, { "docid": "7160512", "title": "", "text": "defense and appeal acted under color of state law. In Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981), the Supreme Court noted that privately retained criminal defense counsel perform a private, not an official, function: In our system a defense lawyer characteristically opposes the designated representatives of the State. The system assumes that adversarial testing will ultimately advance the public interest in truth and fairness. But it posits that a defense lawyer best serves the public, not by acting on behalf of the State or in concert with it, but rather by advancing “the undivided interests of his client.” This is essentially a private function, traditionally filled by retained counsel, for which state office and authority are not needed. 454 U.S. at 318-19, 102 S.Ct. at 450. The Polk County Court held that this was true even of the state-appointed and state-paid public defender. The Court said that, once a lawyer undertook the representation of an accused, the duties and obligations were the same whether the lawyer was privately retained, appointed, or served in a legal aid or defender program. The court held that, even though a public defender is paid by the state, he or she does not act under color of state law in representing the accused. Rather, defense counsel — whether privately retained or paid by the state — acts purely on behalf of the client and free of state control. Under Polk County v. Dodson, none of the attorney defendants in this case, whether privately retained, appointed, or employed by the Michigan State Appellate Defenders Office, can be found to have acted under color of state law in his representation of the plaintiff. Plaintiff points out, however, that, despite the Polk County rule that defense attorneys do not act under color of state law in the normal course of conducting the defense, adequate allegations of conduct “under color of state law” may be made out where an otherwise private person conspires with state officials to deprive another of federal rights. Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66" }, { "docid": "8754312", "title": "", "text": "U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), for the governance of townships is traditionally a public function, but neither the distribution of electricity by a regulated utility nor the operation of a school, Rendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S.Ct. 2764, 2772, 73 L.Ed.2d 418 (1982), is traditionally an exclusive prerogative of the state. The fact that NCAA’s regulatory function may be of some public service lends no support to the finding of state action, for the function is not one traditionally reserved to the state. B. Formally, the NCAA is a private entity. Approximately one-half of its members are public institutions, and those institutions provide more than one-half of the NCAA’s revenues. Those facts, however, do not alter the basic character of the NCAA as a voluntary association of public and private institutions. Nor do they begin to suggest that the public institutions, in contrast to the private institutional members, caused or procured the adoption of the Bylaw. It is not enough that an institution is highly regulated and subsidized by a state. If the state in its regulatory or subsidizing function does not order or cause the action complained of, and the function is not one traditionally reserved to the state, there is no state action. A private school’s discharge of employees was not state action in spite of the fact that the school was extensively regulated and highly subsidized by the state. The state’s regulatory and funding activities had not compelled the discharge of those employees, Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982); see also Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982), just as they had not compelled a private nursing home’s involuntary transfer and discharge of a group of Medicaid patients. See also Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1982) (autonomous decisions of public defender not under color of law). State action was found in Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), for the clerk" }, { "docid": "14950922", "title": "", "text": "the lease obligated “the hospital corporation to serve the general public, to admit indigent patients, to abide by the provisions of the Hospital Survey and Construction Act, to provide the county auditor with a yearly financial report (and any other information requested), and to obtain county approval before disposing of hospital property.” Id. at 881. Nevertheless, the court found these factors to be typical lessor-lessee provisions and insufficient to create a symbiotic relationship. The court in Greco relied on the Supreme Court’s holding in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). In Jackson, the Court rejected the argument that the extensive state regulation of a monopolistic utility converted the utility’s conduct into state action. In finding that disconnecting a customer’s service without a hearing was not state action, the Court noted “the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” Id. at 351, 95 S.Ct. at 453. The Supreme Court has continued to impose a nexus requirement between the challenged action and the asserted connection to the state. See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 841, 102 S.Ct. 2764, 2771, 73 L.Ed.2d 418 (1982) (finding even though private school had close connection to state because state funds constituted 90% of operating budget, “decisions to discharge [employees] were not compelled or even influenced by any state regulation” and, thus, not under color of state law); Blum v. Yaretsky, 457 U.S. 991, 1011, 102 S.Ct. 2777, 2789, 73 L.Ed.2d 534 (1982) (“That programs undertaken by the State result in substantial funding of the activities of a private entity is no more persuasive than the fact of regulation of such an entity in demonstrating that the State is responsible for decisions made by the entity in the course of its business.”). Despite the funding and regulatory connections, Kraft has failed to demonstrate an actual connection between her dismissal, the challenged action, and the state." }, { "docid": "8662903", "title": "", "text": "employment by the state, although relevant to a determination of whether a defendant’s actions are taken under color of state law, is not conclusive. Polk County v. Dodson, 454 U.S. 312, 321, 102 S.Ct. 445, 451, 70 L.Ed.2d 509 (1981) (public defenders do not act under color of state law when lawyering, even though state employees, because state does not have authority over their actions; overruling Robinson v. Bergstrom, 579 F.2d 401, 405-08 (7th Cir. 1978), cited by plaintiff). Accord Brown v. Miller, 631 F.2d 408, 411 (5th Cir.1980) (cited by plaintiff) (mere status of state employee not sufficient); Warner v. Croft, 406 F.Supp. 717, 721 (W.D.Okla.1975) (nature of the acts done, not mere status as state employee, determines whether action was under color of state law). Thus, in Delcambre v. Delcambre, 635 F.2d 407 (5th Cir.1981), the chief of police who assaulted his sister-in-law on the premises of the municipal police station while on duty was not liable under § 1983. Similarly, in Rogers v. Fuller, 410 F.Supp. 187 (M.D.N.C. 1976), the act of stealing, even by a police officer on duty and in uniform, was held to be a personal, private pursuit and not committed under color of state law. But a police officer who uses excessive force to make an arrest is acting under color of state law, see Hausman v. Tredinnick, 432 F.Supp. 1160 (E.D.Pa.1977), as is an officer who effectuates an arrest outside his jurisdiction, even though without actual authority to make the arrest, see United States ex rel. Brzozowski v. Randall, 281 F.Supp. 306 (E.D.Pa.1968). In short, it appears that a person acts “under color of state law” when he engages in conduct that is related to state authority conferred on the person, even though that authority does not in fact permit the conduct. Applying these general standards to this case, and reading plaintiff’s allegations liberally, the following observations can be made. Defendants Hilbert, Luckman and Lyons engaged in their abusive and offensive conduct while at their place of employment. The defendants were capable of harassing plaintiff only because their jobs enabled them to" }, { "docid": "18557221", "title": "", "text": "attorney who is sued for actions allegedly taken as court-appointed counsel does not act under color of state law. Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); Page v. Sharpe, 487 F.2d 567, 570 (1st Cir.1973). The Supreme Court in Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982), identified three factors guiding the determination whether an ostensibly private entity’s conduct constitutes “state action” for purposes of § 1983: “ ‘[Tjhere is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.’ [The state] “has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State. “[T]he private entity has exercised powers that are ‘traditionally the exclusive prerogative of the State.’ ” Id. at 1004-05, 102 S.Ct. at 2786. Accepting all allegations of appellants’ complaint, Y.S.I., a private, non-profit organization, made available foster homes for state agencies and provided recommendations to the juvenile court with respect to child placement. At no time did Y.S.I. assume the state’s mantle of authority; decisions regarding Amy’s disposition were the sole province of the Keene District Court. Appellants have not alleged that Y.S.I. was regulated or funded by, or under contract with, the state of New Hampshire. Also, child care and placement is not traditionally the exclusive prerogative of the state. Player v. State of Alabama Department of Pensions and Security, 400 F.Supp. 249, 262 (M.D.Ala.1975), aff'd, 536 F.2d 1385 (5th Cir.1976). See also Kelley v. Action for Boston Community Development, 419 F.Supp. 511, 516-18 (D.Mass. 1976). Appellants do allege that appellees Park and Y.S.I. acted in concert with state officials to deprive appellants of constitutional rights, a factor which would satisfy the “color of state law” requirement. McGillicuddy v. Clements, 746 F.2d 76 (1st Cir. 1984). However, appellants’ allegations are bald and conclusory, and do not include sufficient factual detail to defeat a motion to" }, { "docid": "8662905", "title": "", "text": "have frequent encounters with her. Therefore, it may be said that defendants’ contacts with plaintiff were made possible only because defendants were given certain state authority, namely CTA staff attorney jobs, and that in the course of exercising their authority, the defendants abused plaintiff in a sexually discriminatory manner. This conclusion, however, does not mean that defendants’ actions were pursued under color of state law. As the preceding case discussion just revealed, actions taken under color of state law must be related to the state authority conferred on the actor, even though the actions are not actually permitted by the authority. Here, however, the abusive conduct was not in any way related to the duties and powers incidental to the job of CTA staff attorney. That the conduct occurred on the CTA work premises is not enough to render it “related to” the state authority conferred on the defendants. See, e.g., Delcambre. For conduct to relate to state authority, it must bear some similarity to the nature of the powers and duties assigned to the defendants. E.g., Johnson v. Hackett. Here, the humiliating comments and harassing behavior had nothing to do with, and bore no similarity to, the nature of the staff attorney job. The CTA job, limited as it was to representing the CTA in legal matters, did not and could not give the illusion that sexual harassment, albeit during work hours, somehow related to the nature of that job. When the Supreme Court in Polk County was confronted with the question of whether a public defender’s decision to withdraw from a frivolous appeal was under color of state law, the Court held it was not, reasoning that since the state has no relationship to the public defender’s choices in representing a client, a decision to withdraw from a frivolous appeal did not relate to any state powers assigned to the defender. 454 U.S. at 320-22, 102 S.Ct. at 450-52. The mere fact of employment was not enough to create that relationship. Id. Clearly, the sexual abuse here is, if possible, even less related to the job of a" }, { "docid": "22697101", "title": "", "text": "help the Court’s position. The exercise of a peremptory challenge is not an important government function; it is not a government function at all. In any event, West does not stand for such a broad proposition. The doctor in that case was under contract with the State to provide services for the State. More important, the State hired the doctor in order to fulfill the State’s constitutional obligation to attend to the necessary medical care of prison inmates. 487 U. S., at 53, n. 10, 57. The doctor’s relation to the State, and the State’s responsibility, went beyond mere performance of an important job. - The present case is closer to Jackson, supra, and Rendell-Baker v. Kohn, 457 U. S. 830 (1982), than to Terry, Marsh, or West In the former cases, the alleged state activities were those of stated-regulated private actors performing what might be considered traditional public functions. See Jackson (electrical utility); Rendell-Baker (school). In each case, the Court held that the performance of such a function, even if state regulated or state funded, was not state action unless the function had been one exclusively the prerogative of the State, or the State had provided such significant encouragement to the challenged action that the State could be held responsible for it. See Jackson, 419 U. S., at 352-353, 357; Rendell-Baker, supra, at 842, 840. The use of a peremptory challenge by a private litigant meets neither criterion. C None of this should be news, as this case is fairly well controlled by Polk County v. Dodson, 454 U. S. 312 (1981). We there held that a public defender, employed by the State, does not act under color of state law when representing a defendant in a criminal trial. In such a circumstance, government employment is not sufficient to create state action. More important for present purposes, neither is the performance of a lawyer’s duties in a courtroom. This is because a lawyer, when representing a private client, cannot at the same time represent the government. Trials in this country are adversarial proceedings. Attorneys for private litigants do not" }, { "docid": "8830222", "title": "", "text": "be held liable under § 1983 if they pass the so-called “close nexus/joint action test,” which requires the plaintiff to demonstrate “ ‘a sufficiently close nexus between the State and the challenged action of the [private] regulated entity so that the action of the latter may be fairly treated as that of the State itself.’” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)). Ponticelli has failed to create a sufficiently close nexus between the State and the private Defendants to mandate their classification as state actors. Ponticelli has not demonstrated that the Defendants are “willful partieipant[s] in joint activity with the State or its agents,” Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), or that they collaborated or conspired with a person acting under color of state law to violate Ponticelli’s constitutional rights. See Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir.1995). Zurich cannot be deemed to be acting under color of state law by virtue of the fact that it is licensed to conduct business in New York. See, e.g., Leeds v. Meltz, 85 F.3d 51, 54 (2d Cir.1996) (stating that extensive regulation and even public funding, either alone or taken together, will not transform a private actor into a state actor); Glendora v. Cablevision Sys. Corp., 893 F.Supp. 264, 269 (S.D.N.Y.1995) (that the defendant is subject to state and federal regulation, or. operates pursuant to a government franchise, does not transform its actions into state action). Because Ponticelli fails to make a showing of state action, summary judgment is granted to Defendants. III. Summary Judgment Is Granted to Defendants to the Extent That Ponticelli Alleges Disparate Treatment Due to Gender Discrimination The Complaint is rather cryptic in alleging the theories under which the Defendants have purportedly violated Title VII. For example, Ponticelli’s opposition to Defendants’ summary judgment motion clarifies that she is alleging the creation of a hostile work environment and quid pro" }, { "docid": "23263608", "title": "", "text": "exclusive governmental function under this test, which appears to have no application here. B. Joint Action Under the joint action test, we consider whether “the state has so far insinuated itself into a position of interdependence with the private entity that it must be recognized as a joint participant in the challenged activity. This occurs when the state knowingly accepts the benefits derived from unconstitutional behavior.” Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1486 (9th Cir.1995) (internal citations, brackets and quotation marks omitted). Although a guardian is appointed, compensated, subject to qualification, and regulated by the state, the above-quoted statute clearly indicates that the intended benefits of the guardian “flow directly to” the child, in whose interests the guardian must act. See id. (no joint action exists where “benefits of [state-law designated loan guarantor] flow directly to students, not to the state itself,” even while “in a broad sense” conferring public benefits). As the district court recognized, and as appellees argue, the role of the guardian as an advocate is analogous to the role of a court-appointed public defender. The Supreme Court has held that a public defender does not act under color of state law when performing pure advocacy functions, Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981), and the Tenth Circuit has relied on the analogy between public defenders and guardians to hold explicitly that guardians do not act under color of state law for § 1983 purposes. Meeker v. Kercher, 782 F.2d 153, 155 (10th Cir.1986) (no obligation or duty to the state, but undivided loyalty to the minor). Meeker goes on to observe that even where the judgment of the guardian exercised on behalf of the minor corresponds with the state interest in child care, it is the independence of the guardian that insulates the role from § 1983 liability. Id. The significance of this inde pendence is underscored by the difficulty we have in seeing how any unconstitutional act by the guardian would possibly provide benefits to the state. Taken together, they indicate that the" }, { "docid": "23135219", "title": "", "text": "See Lugar v. Edmondson Oil Co., 457 U.S. 922, 930, 102 5.Ct. 2744, 2750, 73 L.Ed.2d 482 (1982); Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1264 (3d Cir.1994). Because Angelico sued private individuals for actions taken in their roles as attorneys, he must point to some action that is “fairly attributable” to the state. Lugar, 457 U.S. at 937, 102 S.Ct. at 2753. To do this, Angelico must show (1) that the attorney defendants’ acts were “the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible” and (2) that the attorney defendants may fairly be said to be state actors. Id. A person may be found to be a state actor when (1) he is a state official, (2) “he has acted together with or has obtained significant aid from state officials,” or (3) his conduct is, by its nature, chargeable to the state. Id. at 937, 102 S.Ct. at 2753-54. The Supreme Court noted that“[w]ithout a limit such as this, private parties could face constitutional litigation whenever they seek to rely on some state rule governing their interactions with the community surrounding them.” Id. at 937, 102 S.Ct. at 2754. Attorneys performing their traditional functions will not be considered state actors solely on the basis of their position as officers of the court. See, e.g., Polk County v. Dodson, 454 U.S. 312, 318, 102 S.Ct. 445, 450, 70 L.Ed.2d 509 (1981) (“[A] lawyer representing a client is not, by virtue of being an officer of the court, a state actor ‘under color of state law’ within the meaning of § 1983.”); Barnard v. Young, 720 F.2d 1188, 1189 (10th Cir.1983) (“[P]rivate attorneys, by virtue of being officers of the court, do not act under color of state law within the meaning of section 1983.”). Angelico asserts, however, that the attorneys acted as state officers in issuing the subpoenas because the “state subpoena procedures now empower the attorneys, as officers of the state, to use subpoenas" }, { "docid": "22550745", "title": "", "text": "State. The school, like the nursing homes, is not fundamentally different from many private corporations whose business de pends primarily on contracts to build roads, bridges, dams, ships, or submarines for the government. Acts of such private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts. The school is also analogous to the public defender found not to be a state actor in Polk County v. Dodson, 454 U. S. 312 (1981). There we concluded that, although the State paid the public defender, her relationship with her client was “identical to that existing between any other lawyer and client.” Id., at 318. Here the relationship between the school and its teachers and counselors is not changed because the State pays the tuition of the students. A second factor considered in Blum v. Yaretsky was the extensive regulation of the nursing homes by the State. There the State was indirectly involved in the transfer decisions challenged in that case because a primary goal of the State in regulating nursing homes was to keep costs down by transferring patients from intensive treatment centers to less expensive facilities when possible. Both state and federal regulations encouraged the nursing homes to transfer patients to less expensive facilities when appropriate. Post, at 1007-1008,1009-1010. The nursing homes were extensively regulated in many other ways as well. The Court relied on Jackson, where we held that state regulation, even if “extensive and detailed,” 419 U. S., at 350, did not make a utility’s actions state action. Here the decisions to discharge the petitioners were not compelled or even influenced by any state regulation. Indeed, in contrast to the extensive regulation of the school generally, the various regulators showed relatively little interest in the school’s personnel matters. The most intrusive personnel regulation promulgated by the various government agencies was the requirement that the Committee on Criminal Justice had the power to approve persons hired as voca tional counselors. Such a regulation is not sufficient to make a decision to discharge, made by private management, state action." }, { "docid": "20523563", "title": "", "text": "1983. 1. Attorneys Are Not State Actors Solely Because They Are Attorneys First, Mr. Mikhail argues, “[w]e all should agree that attorneys in private practice are not state employees but are clothed with the authority of state law.” Resp. to Kahn & Fellheimer ¶ 15(d). Thus, he argues that the defendant attorneys, simply because they are attorneys, are also, therefore, state actors acting under color of law. This contention, tried before, has been squarely rejected by the Supreme Court. “It is often said that lawyers are ‘officers of the court.’ But the Courts of Appeals are agreed that a lawyer representing a client is not, by virtue of being an officer of the court, a state actor ‘under color of state law' within the meaning of § 1983.” Polk County v. Dodson, 454 U.S. 312, 318-19, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). Further, the Third Circuit Court of Appeals has long espoused that [although states license lawyers to practice, and although lawyers are deemed “officers of the court,” this is an insufficient basis for concluding that lawyers act under color of state law for the purposes of 42 U.S.C. § 1983. Liability under 42 U.S.C. § 1983 cannot be predicated solely on the state’s licensing of attorneys. Participation in a highly regulated profession does not convert a lawyer’s every action into an act of the State or an act under color of state law. Henderson v. Fisher, 631 F.2d 1115, 1119 (3d Cir.1980) (per curiam) (citing Jackson v. Metro. Edison Co., 419 U.S. 345, 355, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)); see also, e.g., Jackson, 419 U.S. at 354, 95 S.Ct. 449 (“Doctors, optometrists, lawyers, Metropolitan, and Nebbia’s upstate New York grocery selling a quart of milk are all in regulated businesses, providing arguably essential goods and services, ‘affected with a public interest.’ We do not believe that such a status converts their every action, absent more, into that of the State.”). “Attorneys performing their traditional functions will not be considered state actors solely on the basis of their position as officers of the court.” Angelico v. Lehigh" }, { "docid": "7160513", "title": "", "text": "retained, appointed, or served in a legal aid or defender program. The court held that, even though a public defender is paid by the state, he or she does not act under color of state law in representing the accused. Rather, defense counsel — whether privately retained or paid by the state — acts purely on behalf of the client and free of state control. Under Polk County v. Dodson, none of the attorney defendants in this case, whether privately retained, appointed, or employed by the Michigan State Appellate Defenders Office, can be found to have acted under color of state law in his representation of the plaintiff. Plaintiff points out, however, that, despite the Polk County rule that defense attorneys do not act under color of state law in the normal course of conducting the defense, adequate allegations of conduct “under color of state law” may be made out where an otherwise private person conspires with state officials to deprive another of federal rights. Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980); Tower v. Glover, 467 U.S. 914, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984). If the attorney defendants in this case conspired with state officials acting under color of state law, then their actions were under color of state law notwithstanding the holding of Polk County v. Dodson. However, the plaintiff has not stated a claim of conspiracy sufficient to withstand a motion to dismiss, and, therefore, the conspiracy allegations do not suffice to satisfy the requirement that the attorney defendants acted under color of state law. A civil conspiracy is an agreement between two or more persons to injure another by unlawful action. A plaintiff alleging conspiracy must show that there was a single plan, that the alleged conspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury. Hooks v. Hooks, 771 F.2d 935 (6th Cir.1985). A prisoner pro se complaint is held to less stringent standards than formal pleadings drafted by lawyers, and can only be dismissed for failure" }, { "docid": "11555607", "title": "", "text": "was heavily regulated by state held not state action). See also San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987) (USOC is a private, not-for-profit corporation established under federal law, partly funded through federal grants and federal statute granting its exclusive use of Olympic words and symbols; held no government action); Fulani v. League of Women Voters Education Fund, 684 F.Supp. 1185, 1189-92 (S.D.N.Y.1988) (no state action when private organization holds candidates’ debate), aff'd, 882 F.2d 621 (2d Cir.1989). Cf. Gay & Lesbian Students Ass’n v. Gohn, 850 F.2d 361 (8th Cir.1988) (student senate’s funding decisions not free from state university control held state action). Unlike Sinn v. The Daily Nebraskan, however, the present case does not involve private actors. IPT is not a private entity; it is a state agency, the public broadcasting division of the state’s Department of Cultural Affairs. And, at least for purposes of the motion to dismiss, White, Patten and Borg are employees of IPT, that is, public employees, and not private actors. “[S]tate employment is generally sufficient to render the defendant a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. at 936 n. 18, 102 S.Ct. at 2753 n. 18. It is firmly established that a defendant in a § 1983 suit acts under color of state law when he [or she] abuses the position given to him [or her] by the State. Thus, generally, a public employee acts under color of state law while acting in his [or her] official capacity or while exercising his [or her] responsibilities pursuant to state law. West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 2255-56, 101 L.Ed.2d 40 (1988) (citations omitted). But cf. Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (public defenders not state actors; emphasis upon adversarial function). Because no private party stands between the state and DeYoung, there is no need to determine whether defendants’ alleged actions infringing DeYoung’s federal rights can be “fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457" }, { "docid": "21982160", "title": "", "text": "or municipality”, however, “does not automatically mean that a defendant’s actions are taken under the color of state law.” Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir.1996) (citing Polk Cnty., 454 U.S. at 319-20, 102 S.Ct. 445). In Hayut, the Second Circuit found it to be “clear” that a professor employed at a state university who made several inappropriate comments with sexual overtones about a female student during his classes was a state actor. 352 F.3d at 744. In reaching this conclusion, the Second Circuit stated that a “professor at a state university is vested with a great deal of authority over his students with respect to grades and academic advancement by virtue of that position. When a professor misuses that authority in the course of performing his duties, he necessarily acts under color of state law for purposes of a section 1983 action.” In Bliss, where a teacher drugged a minor female student on school grounds and sexually assaulted her, the district court denied summary judgment on a Section 1983 claim against the teacher because, “as the alleged tortfeasor, [the teacher] was in a position to protect plaintiff from her statutorily-protected right to be free of teacher-on-student sexual assault.” 2011 WL 1079944 at *9, 2011 U.S. Dist. LEXIS 35485 at *23 (citing United States v. Giordano, 442 F.3d 30, 47 (2d Cir.2006)). Mr. Benavides argues that his conduct with respect to his illegal sexual relationship with Ms. Doe was not under color of state law because his “personal relationship with Jane Doe evolved from a normal teacher-pupil relationship, into a friendship and eventually a romantic relationship, through the continuous and extensive daily communication and interaction that existed and took place outside of school premises and after school hours.... ” (Benavides Mem. at 8.) Although Mr. Benavides concedes that he interacted with Ms. Doe on a daily basis while performing his official duties and that some of his official interactions with Ms. Doe may have caused her to develop romantic feelings for him, he maintains that “anything that happened between Jane Doe and I, be it sexual" }, { "docid": "1616977", "title": "", "text": "also consistent with the Supreme Court’s decision in Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). In Polk County, the Court reaffirmed that \"a person acts under color of state law only when exercising power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’ ’’ Id. at 317-18, 102 S.Ct. at 449 (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)). The Court found that a public defender appointed to represent a criminal defendant in the appeal of his conviction was not acting under color of state law. Representing a client, the Court said, \"is essentially a private function ... for which state office and authority are not needed.” Id. 454 U.S. at 319, 102 S.Ct. at 450. Key to the decision, however, is that the public defender may act under color of state law while performing some official duties, but not while performing others. Ultimately, an attorney receives his or her authority to represent a client from the client herself, normally making the attorney a private actor. Whether an attorney is selected by an individual or appointed by the state, the ultimate authority to proceed comes from the client. The client always has the right to fire his or her attorney. On the other hand, when a defendant exercises a peremptory challenge, the ultimate authority to exercise the challenge and exclude a juror comes from the state. Thus the Supreme Court has found state action when a private civil litigant uses the authority of the courts to remove persons from the jury, see Edmonson, and we likewise find state action when a private criminal defendant exercises a peremptory challenge. . Batson also required defendants who allege that a prosecutor violated their equal protection rights by discriminatory peremptory strikes to show that they are members of the same cognizable group as the excluded venireperson to establish a prima facie case. Batson, 476 U.S. at 96, 106 S.Ct. at 1723. However, when complaining parties rely" }, { "docid": "18557220", "title": "", "text": "Y.S.I., and Y.S.I. employee Richard Archibald essentially boil down to the allegations that they made defamatory statements against appellants and joined in a conspiracy with other appellees to wrest Amy from appellants’ custody without cause or justification. Archibald was properly dismissed from the case after appellants failed to serve him. The district court granted Park’s motion to dismiss and motion for summary judgment and Y.S.I.’s motion to dismiss, finding that appellants’ complaint did not allege sufficient facts to suggest they acted “under color of state law” for purposes of § 1983. We agree. It is black-letter law that a showing of interference with a constitutionally-protected right by someone acting under color of state law is a prerequisite to a § 1983 action. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Appellee Park, a private attorney, is sued for actions allegedly taken as court-appointed counsel for Amy in the Keene District Court proceedings. A private attorney who is sued for actions allegedly taken as court-appointed counsel does not act under color of state law. Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); Page v. Sharpe, 487 F.2d 567, 570 (1st Cir.1973). The Supreme Court in Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982), identified three factors guiding the determination whether an ostensibly private entity’s conduct constitutes “state action” for purposes of § 1983: “ ‘[Tjhere is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.’ [The state] “has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State. “[T]he private entity has exercised powers that are ‘traditionally the exclusive prerogative of the State.’ ” Id. at 1004-05, 102 S.Ct. at 2786. Accepting all allegations of appellants’ complaint, Y.S.I., a" } ]

[ { "docid": "10351623", "title": "", "text": "that the charterer, Clay, was a disclosed principal was clearly erroneous. Both of these inquiries are rooted in the knowledge acquired by Garza. Next, it argues that the court erred in denying recovery for the extra charges resulting from loading delays caused by the winches and in denying full recovery for the additional extra charges claimed. Finally, TTT Stevedores argues that it was error to permit the vessel owner to recover for wrongful seizure of the vessel. A. Knowledge of the No Lien Provision: Pack-Men Percipient? TTT Stevedores’ first objection to the district court’s decision is its denial of recovery in rem from the vessel and Dempo. It argues that the in rem statutory lien afforded the supplier of necessaries to a ship can be defeated only where it is established that the supplier has actual knowledge of the existence of a no lien provision in the charterparty. Since it asserts that there was no such knowledge here, it argues that the court’s holding that the knowledge of Garza, an employee of TTT Agencies, could be imputed to TTT Stevedores was clearly erroneous. Determination of this issue necessarily involves three inquiries. First, it must be determined whether a maritime lien arose on the vessel. There is no question that supplying stevedoring services gives rise to a maritime lien under 46 U.S.C. § 971. See Dampskibsselskabet Dannebrog v. Signal Oil & Gas Co., 310 U.S. 268, 273, 60 S.Ct. 937, 940, 84 L.Ed. 1197, 1200 (1940), A.M.C. 647, 650; Gulf Trading & Transportation Co. v. M/V HOEGH SHIELD, 658 F.2d 363, 368 (5th Cir.1981), cert. denied, -U.S. -, 102 S.Ct. 2932, 73 L.Ed.2d 1332 (1982). Thus, a maritime lien against the vessel arose at the time of the contract for stevedoring services. Having determined the existence of a maritime lien, we can now turn to the second inquiry necessary for the determination of this matter. Appellees, the vessel and Dempo, argue that the maritime lien against the vessel was waived by a “no lien” provision in the charterparty agreement. They suggest that there is evidence in the record that TTT Agencies" } ]

[ { "docid": "8573816", "title": "", "text": "A. Pelaez, Moore’s Federal Practice, E-727 (2d ed. 1983). Under the broad test for Rule 13(a) adopted by this Circuit, a counterclaim is compulsory when there is any “logical relationship” between the claim and the counterclaim. Plant v. Blazer Financial Services, 598 F.2d 1357 (5th Cir.1979). See also 6 C. Wright & A. Miller, Federal Practice & Procedure § 1410 (1971) (indicating breadth of this test). However, even under this liberal standard, it is clear that an action in the nature of wrongful seizure or malicious prosecution does not lie as a compulsory counterclaim under F.R.Civ.P. 13(a). See, e.g., Olsen v. Puntervold, 338 F.2d 21 (5th Cir.1964) (malicious prosecution); U.S. General, Inc. v. City of Joliet, 598 F.2d 1050 (7th Cir.1979) (malicious prosecution). See generally 3 J. Moore, Moore’s Federal Practice ¶ 13.13, 13-78, n. 26 (2d ed.1984). Such a counterclaim not “arising out of the same transaction or occurrence” as the original action for purposes of federal practice, and there being neither history nor practice in the admiralty suggesting any difference, we see no justification for applying Rule E(7) to a broader class of counterclaims than that permitted under F.R. Civ.P. 13(a). This is especially appropriate in light of the 1966 Unification of Admiralty and Civil Practice. We therefore conclude that, whether or not an action for wrongful seizure, abuse of process or malicious prosecution may be asserted as a counterclaim in admiralty practice, counter-security under Rule E(7) may not be required for such a claim. This holding is supported by the decisions of the federal courts which have considered this precise question. In Amerada Hess Corp. v. S.S. ATHENA, 1984 A.M.C. 130 (D.Md.1984), the court denied defendant’s request for counter-security based on counterclaims alleging abuse of process and wrongful use of civil proceedings. In denying counter-security, the court reasoned that, since such a counterclaim would not be permitted under F.R.Civ.P. 13(a), it could not be the basis for requiring counter-security under Admiralty Rule E(7). Id. at 132. A similar conclusion' was made under former Admiralty Rule 50 in Solomon v. Bruchhausen, 305 F.2d 941, 1963 A.M.C. 210 (2d" }, { "docid": "1995555", "title": "", "text": "the substantive law of maritime seizures and requires that damages be awarded only on a showing of “bad faith, malice, or gross negligence.” It also establishes that “advice of competent counsel, honestly sought and acted upon in good faith is alone a complete defense to an action for malicious prosecution.” Frontera Fruit Co. v. Dowling, 91 F.2d 293, 297 (5th Cir.1937). The trial transcript of the testimony of Alexis Nichols, acting as agent for Marastro in the seizure, reflects that his decision was predicated on just such advice. We affirm the trial court’s conclusion that Marastro acted in good faith and did not show a wanton disregard for the rights of NAFED or Canadian and that neither NAFED nor Canadian is entitled to damages for wrongful seizure. 6. We agree with the trial court that Canadian does not have a cause of action against Marastro for trespass. While no rule of trespass exists in maritime law, federal courts may borrow from a variety of sources in establishing common law admiralty rules to govern maritime liability where deemed appropriate. Conner v. Aerovox, Inc., 730 F.2d 835 (1st Cir.1984), cert. denied 470 U.S. 1050, 105 S.Ct. 1747, 84 L.Ed.2d 812 (1985). It has held that in the absence of federal cases or an established federal admiralty rule on trespass, it would be more appropriate to apply general common law rather than state law which would “impair the uniformity and simplicity which is a basic principle of the federal admiralty law ...” Nissan Motor Corp. v. Maryland Shipbuilding, etc., 544 F.Supp. 1104, 1111 (D.Md.1982), citing Byrd v. Byrd, 657 F.2d 615 (4th Cir.1981). Applying this rationale, we hold that general common law and in particular the Restatement (Second) of Torts should control to determine the law of maritime trespass, in order to promote uniformity in general maritime law. 544 F.Supp. at 1111. Under the Restatement, one is liable for trespass if he intentionally enters land in possession of another, or causes a thing or a third person to do so. Restatement (Second) of Torts § 158. However, the Restatement also contains a privilege" }, { "docid": "22894505", "title": "", "text": "G. Engerrand, Removal and Remand of Admiralty Suits, 21 Tul. Mar. L.J. 383, 385 (1997) (discussing removal of admiralty cases and stating that “[d] espite the fact that the 'congressional language ... is perfectly understandable in ordinary English,’ the determination whether admiralty cases can be removed has been affected by historical accident rather than traditional principles of statutory interpretation;”) id. at 386-90 (explaining Romero’s effect on federal question jurisdiction in admiralty claims); George Rutherglen, The Federal Rules for Admiralty and Maritime Cases: A Verdict of Quiescent Years, 27 J. Mar. L. & Com. 581, 590-92 (1996) (discussing complexities in saving to suitors clause actions resulting from Romero); David J. Sharpe, The Future of Maritime Law in the Federal Courts: A Faculty Colloquium, 31 J. Mar. L. & Com. 217, 232-34 (2000) (recognizing the confusion as to removal in admiralty). . That the federal question was an essential, and ultimately dispositive, element is demonstrated by the fact that were we to decide that Leonhardt, discussed infra, was the correct statement of the law, the plaintiffs’ case could be dismissed on that basis alone. Moreover, Express Lines sustained its injury at the time the attachments were served and the assets seized. The District Court’s decision vacating the attachments came too late to save the company. . The damages that might be awarded for wrongful attachment have not been fully explored. Neither party has raised or briefed the preemption aspect in this context. A brief examination of the case law indicates that damages in this area, if awarded at all, generally consist of attorneys’ fees, costs, and expenses \"directly” attributable to the attachment. See Furness Withy (Chartering), Inc., Panama v. World Energy Sys. Assocs., Inc., 772 F.2d 802 (11th Cir.1985) (no bad faith, therefore no damages awarded); Ocean Ship Supply, Ltd. v. MV Leah, 729 F.2d 971 (4th Cir.1984) (same); Frontera Fruit Co. v. Dowling, 91 F.2d 293 (5th Cir.1937) (same). See also Coastal Barge Corp. v. M/V Maritime Prosperity, 901 F.Supp. 325 (M.D.Fla.1994) (damages assessed included attorneys' fees and expenses, direct and derivative damages); State Bank & Trust Co. of Golden Meadow" }, { "docid": "8573827", "title": "", "text": "79 S.Ct. 857, 860-61, 3 L.Ed.2d 845, 849-50, 1959 A.M.C. 1332, 1337 (1959). Given this traditional narrow construction, the court concluded: The law on this point in admiralty has been settled beyond doubt in the lower courts for many years and an Admiralty Rule of this Court recognizes this case law. We think that if the law is to change it should be by rule-making or legislation and not by decision. Id. at 323, 79 S.Ct. at 862, 3 L.Ed.2d at 851. . While the Solomon court held that a claim of wrongful seizure would not lie at all as a cross-claim in admiralty, 305 F.2d at 943, we do not decide that question. We merely hold that counter-security may not be required under Rule E(7) for such a claim. We observe, however, that other courts have reached the same conclusion as the court in Solomon. See, Maritime Terminals v. M/S JAN, 1978 A.M.C. 1236 (N.D.Ill.1978) (claim of wrongful arrest does not lie as cross-claim in admiralty); United States v. M/V PITCAIRN, 272 F.Supp. 518 (E.D.La.1967) (wrongful seizure claim does not arise out of the same cause of action as the original libel)." }, { "docid": "8573815", "title": "", "text": "(5th Cir.1984); TTT Stevedores of Texas, Inc. v. M/V JAGAT VIJETA, 696 F.2d 1135 (5th Cir.1983); Tampa Ship Repair & Dry Dock Co. v. Esso Export Corp., 237 F.2d 506, 1956 A.M.C. 217 (5th Cir.1956). In none of these cases, however, were we required to decide the precise issue presented to us on this appeal: whether a counterclaim for wrongful seizure is an appropriate basis for requiring counter-security to be posted under Admiralty Rule E(7), or its predecessor, former Admiralty Rule 50. Upon examination of the intent of the Rule, we are of the opinion that counter-security should not be ordered for such a claim. Under the terms of Rule E(7), counter-security may be required when a counterclaim is asserted which arises “out of the same transaction or occurrence” as the original libel. This language is identical to that defining compulsory counterclaims under F.R.Civ.P. 13(a). Thus, as Professor Moore has suggested, we can draw guidance on the proper scope of Rule E(7) by examining the test for counterclaims under F.R.Civ.P. 13(a). 7A J. Moore & A. Pelaez, Moore’s Federal Practice, E-727 (2d ed. 1983). Under the broad test for Rule 13(a) adopted by this Circuit, a counterclaim is compulsory when there is any “logical relationship” between the claim and the counterclaim. Plant v. Blazer Financial Services, 598 F.2d 1357 (5th Cir.1979). See also 6 C. Wright & A. Miller, Federal Practice & Procedure § 1410 (1971) (indicating breadth of this test). However, even under this liberal standard, it is clear that an action in the nature of wrongful seizure or malicious prosecution does not lie as a compulsory counterclaim under F.R.Civ.P. 13(a). See, e.g., Olsen v. Puntervold, 338 F.2d 21 (5th Cir.1964) (malicious prosecution); U.S. General, Inc. v. City of Joliet, 598 F.2d 1050 (7th Cir.1979) (malicious prosecution). See generally 3 J. Moore, Moore’s Federal Practice ¶ 13.13, 13-78, n. 26 (2d ed.1984). Such a counterclaim not “arising out of the same transaction or occurrence” as the original action for purposes of federal practice, and there being neither history nor practice in the admiralty suggesting any difference, we see no" }, { "docid": "13058885", "title": "", "text": "closing its eyes to the facts so readily available. It is inadequate as a matter of law so reversal involves in no sense a rejection by us of fact findings by the District Court, McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20, 1954 A.M.C. 1999; C. J. Dick Towing Company v. The Leo, 5 Cir., 202 F.2d 850, 854, 1953 A.M.C. 498; Societa An onima Navigazione Alta Italia v. Oil Transport Company, 5 Cir., 232 F.2d 422, 1956 A.M.C. 1073; Mississippi Valley Barge Line Company v. Indian Towing Company, 5 Cir., 232 F.2d 750, 1956 A.M.C. 757. The decree denying the Owner’s cross libel for damages for wrongful seizure of the vessel is, however, affirmed, Frontera Fruit Co., Inc., v. Dowling, 5 Cir., 91 F.2d 293, 1937 A.M.C. 1259. Reversed and affirmed in part. . “Neither the Charterer nor the Master shall have any right or power or authority to create, incur, or permit to be placed upon the vessel any liens whatsoever other than for crew’s wages and salvage. The Charterer agrees to carry a properly certified copy of this agreement with the vessel’s papers, and agrees to exhibit the same to any person having business with the vessel, and agrees to exhibit the same to any representatives of the Owner on demand. * * * ” . This referred to 46 U.S.C.A. § 973: “ * * * but nothing in this chapter shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor.”" }, { "docid": "8573818", "title": "", "text": "Cir.1962), cert. denied sub nom Isbrandtsen v. Maximo, 371 U.S. 951, 83 S.Ct. 506, 9 L.Ed.2d 499, 1963 A.M.C. 1646 (1963). There, the district court had ordered libellants to post counter-security for respondent’s cross-claim of abuse of process in the arrest of respondent’s vessels. The Second Circuit dismissed the cross-claim stating that an action for abuse of process could not be considered to have arisen out of the original action. We thus decide that the district court improperly ordered the posting of security for defendants’ counterclaims. Having found appellate jurisdiction to decide this issue, plaintiffs’ petition for Writ of Mandamus in No. 83-2627 is mooted, and is therefore dismissed. For the foregoing reasons, the district court’s order requiring appellant to post counter-security is vacated, and the cause remanded for further proceedings. VACATED and REMANDED. . We recite the facts as alleged in plaintiffs’ complaint. . One consignment was taken on board in Savannah, Georgia, and the other in St. John, New Brunswick. . Although the vessel sailed without issuing bills of lading, a third defendant, Grundvig Chartering, Inc., subsequently issued bills of lading as subcharterer. Defendant Van Weelde alleges that these bills of lading were fraudulently issued. Grundvig Chartering, named as a defendant in plaintiffs’ complaint, has yet to appear in this action. . In its complaint, Incas invoked F.R.Civ.P. 9(h) to obtain the benefit of the Supplemental Rules for Admiralty. . Defendant Joong Ang, who filed a Claim as Owner of the M/V SANG JIN, has made no counterclaims. . Supplemental Admiralty Rule E(7) provides as follows: (7) Security on counterclaim. Whenever there is asserted a counterclaim arising out of the same transaction or occurrence with respect to which the action was originally filed, and the defendant or claimant in the original action has given security to respond in damages, any plaintiff for whose benefit such security has been given shall give security in the usual amount and form to respond in damages to the claims set forth in such counterclaim, unless the court, for cause shown, shall otherwise direct; and proceedings on the original claim shall be stayed" }, { "docid": "7620908", "title": "", "text": "order to collect fees, the plaintiff must prove that the party seizing the vessel acted in bad faith, with malice, or with wanton disregard for the rights of his opponent. See Frontera Fruit v. Dowling, 91 F.2d 293, 297 (5th Cir.1937); see also Platoro Ltd. v. Unidentified Remains of a Vessel, 695 F.2d 893, 905-906 (5th Cir.1983); Noritake Co. v. M/V Hellenic Champion, 627 F.2d 724, 730-31 n. 5 (5th Cir.1980). The pleadings of Glafkos Shipping did not allege, and the company has not proven, any acts of bad faith, wantonness, or malice on the part of Indonesia and Bulog. The owner argues that the Supreme Court did not require bad faith in awarding fees in The Apollon, 22 U.S. (9 Wheat) 362, 372, 6 L.Ed. 111 (1824); see also Ocean Ship Supply v. M/V Leah, 1982 A.M.C. 2740, 2751 (C.D.S.C.1982). It contends that the Court recently explained The Apollon as drawing a line between fees awarded as “costs” and those awarded as “damages,” bad faith not being required for the latter. See Vaughan v. Atkinson, 369 U.S. 527, 530, 82 S.Ct. 997, 999, 8 L.Ed.2d 88 (1962) (discussing attorney’s fees in the context of a seaman’s suit for maintenance and cure). The Vaughan court, however, never explicitly declared that bad faith was not required; on the contrary, it emphasized that the defendant had been “callous ... willful and persistent” and that his “recalcitrance” had forced the plaintiff “to hire a lawyer and go to court to get what was plainly owed him.” Id. at 530-31, 82 S.Ct. at 999-1000; Gilmore & Black, supra, at 313. This Court has read Vaughan to require bad faith, see Noritake, 627 F.2d at 731 n. 5, and we have required bad faith or malice long since The Apollon was decided. See Frontera Fruit; Platoro Ltd.; Noritake. In this case, there was a bona fide dispute over the validity of Indonesia’s and Bulog’s lien. Given the scarcity of Fifth Circuit precedent in this area, the parties could have legitimately and honestly believed that a lien would stand up. There is no evidence of wantonness'," }, { "docid": "8573817", "title": "", "text": "justification for applying Rule E(7) to a broader class of counterclaims than that permitted under F.R. Civ.P. 13(a). This is especially appropriate in light of the 1966 Unification of Admiralty and Civil Practice. We therefore conclude that, whether or not an action for wrongful seizure, abuse of process or malicious prosecution may be asserted as a counterclaim in admiralty practice, counter-security under Rule E(7) may not be required for such a claim. This holding is supported by the decisions of the federal courts which have considered this precise question. In Amerada Hess Corp. v. S.S. ATHENA, 1984 A.M.C. 130 (D.Md.1984), the court denied defendant’s request for counter-security based on counterclaims alleging abuse of process and wrongful use of civil proceedings. In denying counter-security, the court reasoned that, since such a counterclaim would not be permitted under F.R.Civ.P. 13(a), it could not be the basis for requiring counter-security under Admiralty Rule E(7). Id. at 132. A similar conclusion' was made under former Admiralty Rule 50 in Solomon v. Bruchhausen, 305 F.2d 941, 1963 A.M.C. 210 (2d Cir.1962), cert. denied sub nom Isbrandtsen v. Maximo, 371 U.S. 951, 83 S.Ct. 506, 9 L.Ed.2d 499, 1963 A.M.C. 1646 (1963). There, the district court had ordered libellants to post counter-security for respondent’s cross-claim of abuse of process in the arrest of respondent’s vessels. The Second Circuit dismissed the cross-claim stating that an action for abuse of process could not be considered to have arisen out of the original action. We thus decide that the district court improperly ordered the posting of security for defendants’ counterclaims. Having found appellate jurisdiction to decide this issue, plaintiffs’ petition for Writ of Mandamus in No. 83-2627 is mooted, and is therefore dismissed. For the foregoing reasons, the district court’s order requiring appellant to post counter-security is vacated, and the cause remanded for further proceedings. VACATED and REMANDED. . We recite the facts as alleged in plaintiffs’ complaint. . One consignment was taken on board in Savannah, Georgia, and the other in St. John, New Brunswick. . Although the vessel sailed without issuing bills of lading, a third defendant," }, { "docid": "7620915", "title": "", "text": "Clause 33 of the Glafkos Shipping-Forestships time charter provided that charterers would be authorized to sign bills of lading for the Master if the Master gave authorization in writing. See Record at 81. We can find no evidence in the record — nor have the plaintiffs contended in their pleadings at trial or on appeal — that the Master gave such authorization. Claybridge has the burden of proving authority to sign the bills for Master and owner. See Associated Metals & Minerals v. SS Portoria, 484 F.2d 460, 462 (5th Cir.1973). It failed to meet that burden. Of course, some cases have held that even if a signature \"For the Master” is not authorized, the bills may be \"ratified\" when cargo is loaded and shipped aboard the vessel. At that point, a breach of the terms in the bills of lading may give rise to a lien against the vessel. See Demsey & Associates v. SS Sea Star, 461 F.2d 1009, 1015 (2d Cir.1972); Tube Products of India v. S.S. Rio Grande, 334 F.Supp. 1039, 1041 (S.D.N.Y.1971); United Nations Children's Fund v. S/S Nordstern, 251 F.Supp. 833, 837 (S.D.N.Y.1965). However, this liability is but a variant of the charterer’s ability to bind the vessel to contracts of affreightment. Thus, his authority may be constrained by a Prohibition-of-Lien clause. See The Lucie Schulte, 343 F.2d at 898 (breach of bill-of-lading contracts); Gilmore & Black, supra, at 687. . Glafkos Shipping sought attorney's fees in the trial court. See Defendant's Answer, Record at 43. The court ordered Indonesia and Bulog to post bond to secure the wrongful seizure claim, but it never ruled on that claim. ALVIN B. RUBIN, J., concurring: Bound by the decision in Frontera Fruit Co., Inc. v. Dowling, I concur in the denial of attorney’s fees as well as in the remainder of the opinion. A half century ago, in that case, we denied damages for wrongful libel of a vessel save when the seizure resulted from bad faith, malice, or gross negligence. Incidental thereto, on the same grounds we denied recovery for attorney’s fees incurred in obtaining" }, { "docid": "8573813", "title": "", "text": "it would do if counter-security is not posted. We can imagine no more perfect example of an over-technical application of the final judgment rule than to dismiss plaintiffs' appeal merely for want of one more order affecting the release of the security posted by defendants. We therefore find the order in question appealable under 28 U.S.C. § 1291. Given the nature of the court’s order, and its practical effect on plaintiffs’ claim, we believe that appellate review at this point is not only appropriate, but is necessary if the order is to be reviewable at all. Finally, the Merits This brings us to plaintiffs’ contention that Van Weelde’s counterclaims are not the type for which counter-security may be required under Admiralty Rule E(7). Defendant Van Weelde’s counterclaim asserts that plaintiffs (1) wrongfully seized the SANG JIN, (2) requested grossly excessive security, resulting in (3) interference with Van Weelde’s contractual obligations, and (4) disparagement of Van Weelde’s name in the business community. The cornerstone of these allegations is that plaintiffs had no right to employ the admiralty rules to arrest the SANG JIN in the first place. Since the admiralty is not concerned with common law labels as to theories of recovery, or causes of action, see Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550, 1957 A.M.C. 597 (1959), we are entitled to treat this broadly as a claim for wrongful seizure, whether denominated as such or as one for abuse of process, malicious prosecution, or all three. In, Frontera Fruit Co. v. Dowling, 91 F.2d 293, 1937 A.M.C. 1259 (5th Cir.1937), we held that the right to recover damages for wrongful seizure of a vessel is based on a showing of bad faith, malice or gross negligence on the part of the libellant. Id. at 297, 1937 A.M.C. at 1266. Since that time, we have had occasion to decide, on the basis of Frontera, whether such bad faith existed as to warrant the award of damages for a wrongful seizure in admiralty. See e.g., Cardinal Shipping Corp. v. M/S SEISHO MARU, 744 F.2d 461" }, { "docid": "19848175", "title": "", "text": "at 2134. . We note appellants' observation in the present case that the bad faith exception to the American rule arose in Vaughan, a maintenance and cure case. Appellants contend that the purpose behind this exception employed in the maintenance and cure context limits its applicability to that particular aspect of general maritime law. Appellants argue that seamen are treated as wards of the admiralty court, and therefore receive special protections not afforded to other admiralty litigants. We have not limited application of the bad faith exception to maintenance and cure cases, but have extended it to other contexts within general maritime law. See Cantieri Navali Riuniti v. M/V Skyptron, 802 F.2d 160, 165 & n. 7 (5th Cir.1986) (indicating that award of attorneys' fees relating to claim involving disputed priority of liens in admiralty proceeding could be proper if party “acted in bad faith or with malice” by refusing, until the day of trial, to stipulate to a claim that had priority \"under any conceivable analysis”; noting that \"[a]ttomeys' fees are generally not awarded in admiralty cases” but may be awarded “in cases where the nonprevailing party has acted in bad faith throughout the course of the litigation”); Cardinal Shipping Corp. v. M/S Seisho Maru, 744 F.2d 461 (5th Cir.1984) (in case involving wrongful seizure of a ship, in order to collect attorneys' fees, plaintiff must prove that party seizing the vessel acted in bad faith, with malice, or with wanton disregard for rights of plaintiff). . Deriving from Article VI of the Laws of Oleron, 30 Fed.Cas. 1171, 1174, maintenance and cure is designed to provide a seaman with food and lodging when he is injured or becomes sick while in the service of a ship: \"[I]f by the [ship] master’s orders and commands any of the ship's company be in the service of the ship, and thereby happen to be wounded or otherwise hurt, in that case they shall be cured and provided for at the costs and charges of the said ship.\" Vaughan, 369 U.S. at 531-32 & n. 4, 82 S.Ct. at 1000 & n." }, { "docid": "7620916", "title": "", "text": "1041 (S.D.N.Y.1971); United Nations Children's Fund v. S/S Nordstern, 251 F.Supp. 833, 837 (S.D.N.Y.1965). However, this liability is but a variant of the charterer’s ability to bind the vessel to contracts of affreightment. Thus, his authority may be constrained by a Prohibition-of-Lien clause. See The Lucie Schulte, 343 F.2d at 898 (breach of bill-of-lading contracts); Gilmore & Black, supra, at 687. . Glafkos Shipping sought attorney's fees in the trial court. See Defendant's Answer, Record at 43. The court ordered Indonesia and Bulog to post bond to secure the wrongful seizure claim, but it never ruled on that claim. ALVIN B. RUBIN, J., concurring: Bound by the decision in Frontera Fruit Co., Inc. v. Dowling, I concur in the denial of attorney’s fees as well as in the remainder of the opinion. A half century ago, in that case, we denied damages for wrongful libel of a vessel save when the seizure resulted from bad faith, malice, or gross negligence. Incidental thereto, on the same grounds we denied recovery for attorney’s fees incurred in obtaining the release of the vessel seized, without differentiating between attorney’s fees and other damages. The sum sought for fees was only $300. Now, securing release of a vessel may occasion the payment of attorney’s fees in amounts never dreamed of in 1937. It is time to reconsider whether wrongful seizure, even if provoked in good faith, should not entail liability for attorney’s fees, by statute if need be. Those who, like seamen, are exempt from providing security, should, of course, retain their privileged status. . 91 F.2d 293 (5th Cir.1937). . Id., 91 F.2d at 297. talking about.\" He said nothing. Never a word." }, { "docid": "1995554", "title": "", "text": "maritime jurisdiction of the district court. Molett v. Penrod Drilling Co., 826 F.2d 1419 (5th Cir.1987). 4. We found previously that NAFED was an entity completely independent of FCI and the GOI; that the United States had donated corn to the farmers of India pursuant to the 416(b) Agreement; that NAFED had been designated by the GOI to act as Cooperating Sponsor for the purposes of the 416(b) Agreement and that under the terms of the agreement, NAFED became the owner of the corn when it was loaded on the M/V DERBY NORTH. We agree with the district court that the seizure was illegal because it was made pursuant to Marastro’s judgment against FCI not NAFED and because NAFED, not FCI, was owner of the corn. 5. The claims for wrongful seizure and Canadian’s claim for trespass against Marastro are substantive in nature, not procedural. Since we have found the FSIA to be inapplicable to this case, there is no need to analyze the substantive law of the seizure from that prospective. Maritime law controls the substantive law of maritime seizures and requires that damages be awarded only on a showing of “bad faith, malice, or gross negligence.” It also establishes that “advice of competent counsel, honestly sought and acted upon in good faith is alone a complete defense to an action for malicious prosecution.” Frontera Fruit Co. v. Dowling, 91 F.2d 293, 297 (5th Cir.1937). The trial transcript of the testimony of Alexis Nichols, acting as agent for Marastro in the seizure, reflects that his decision was predicated on just such advice. We affirm the trial court’s conclusion that Marastro acted in good faith and did not show a wanton disregard for the rights of NAFED or Canadian and that neither NAFED nor Canadian is entitled to damages for wrongful seizure. 6. We agree with the trial court that Canadian does not have a cause of action against Marastro for trespass. While no rule of trespass exists in maritime law, federal courts may borrow from a variety of sources in establishing common law admiralty rules to govern maritime liability" }, { "docid": "7620907", "title": "", "text": "kept strictly private and confidential.” Record at 85. The plaintiffs claim that diligent inquiry could not have discovered such a confidential document. They have not argued, however, that the Forestships-Claybridge subcharter contains a similar “secrecy clause.” Nor can we find one. Thus, they have given no reason why they could not discover the anti-lien provision contained in the subcharter. Awareness of that clause alone would have been sufficient to put the plaintiffs on notice as to the constraints on Claybridge’s authority. This is particularly true since Claybridge was the very “Charterer” referred to in Clause 18 of that subcharter. In sum, plaintiffs did not sufficiently carry their burden of proof. Clause 18 bars their purported lien. B. Attorney's Fees Glafkos Shipping brings a cross-appeal seeking attorney’s fees on the ground that Indonesia and Bulog wrongfully seized the Glafkos. The shipowner argues that such fees are a basic element of damages for the tort of wrongful seizure. Without deciding whether there was a wrongful seizure, we hold that the claim for attorney’s fees is unsupported. In order to collect fees, the plaintiff must prove that the party seizing the vessel acted in bad faith, with malice, or with wanton disregard for the rights of his opponent. See Frontera Fruit v. Dowling, 91 F.2d 293, 297 (5th Cir.1937); see also Platoro Ltd. v. Unidentified Remains of a Vessel, 695 F.2d 893, 905-906 (5th Cir.1983); Noritake Co. v. M/V Hellenic Champion, 627 F.2d 724, 730-31 n. 5 (5th Cir.1980). The pleadings of Glafkos Shipping did not allege, and the company has not proven, any acts of bad faith, wantonness, or malice on the part of Indonesia and Bulog. The owner argues that the Supreme Court did not require bad faith in awarding fees in The Apollon, 22 U.S. (9 Wheat) 362, 372, 6 L.Ed. 111 (1824); see also Ocean Ship Supply v. M/V Leah, 1982 A.M.C. 2740, 2751 (C.D.S.C.1982). It contends that the Court recently explained The Apollon as drawing a line between fees awarded as “costs” and those awarded as “damages,” bad faith not being required for the latter. See Vaughan v." }, { "docid": "13058884", "title": "", "text": "19th of May.” As Esso’s inquiry reflected on its face, this was an investigation of South Pacific’s credit. It was neither an express nor implied assertion assented to by the Owner’s reply that South Pacific, under the proposed charter had, or would have, the right to pledge the credit of the Owner’s vessel for Charterer’s debts or obligations. There was no deception. There was a straightforward answer to the inquiry posed, and Esso, with such positive knowledge that a charter party existed, had to anticipate, especially with its experience in the world-wide furnishing of bunkers, that the charter might well contain traditional prohibitions on the charterer’s right to incur liens. The risk of non-inquiry was Esso’s. Nothing in John Baizley Iron Works v. United States, D.C.Pa., 6 F.2d 25, 26, 1925 A.M.C. 565, whose dicta was apparently magnified to obscure its actual holding, or The Hurricane, D.C.Pa., 2 F.2d 70, 1925 A.M.C. 42, affirmed 3 Cir., 9 F.2d 396, could make more out of these letters than this. This was the only excuse for Esso closing its eyes to the facts so readily available. It is inadequate as a matter of law so reversal involves in no sense a rejection by us of fact findings by the District Court, McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20, 1954 A.M.C. 1999; C. J. Dick Towing Company v. The Leo, 5 Cir., 202 F.2d 850, 854, 1953 A.M.C. 498; Societa An onima Navigazione Alta Italia v. Oil Transport Company, 5 Cir., 232 F.2d 422, 1956 A.M.C. 1073; Mississippi Valley Barge Line Company v. Indian Towing Company, 5 Cir., 232 F.2d 750, 1956 A.M.C. 757. The decree denying the Owner’s cross libel for damages for wrongful seizure of the vessel is, however, affirmed, Frontera Fruit Co., Inc., v. Dowling, 5 Cir., 91 F.2d 293, 1937 A.M.C. 1259. Reversed and affirmed in part. . “Neither the Charterer nor the Master shall have any right or power or authority to create, incur, or permit to be placed upon the vessel any liens whatsoever other than for crew’s wages and salvage." }, { "docid": "8573814", "title": "", "text": "admiralty rules to arrest the SANG JIN in the first place. Since the admiralty is not concerned with common law labels as to theories of recovery, or causes of action, see Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550, 1957 A.M.C. 597 (1959), we are entitled to treat this broadly as a claim for wrongful seizure, whether denominated as such or as one for abuse of process, malicious prosecution, or all three. In, Frontera Fruit Co. v. Dowling, 91 F.2d 293, 1937 A.M.C. 1259 (5th Cir.1937), we held that the right to recover damages for wrongful seizure of a vessel is based on a showing of bad faith, malice or gross negligence on the part of the libellant. Id. at 297, 1937 A.M.C. at 1266. Since that time, we have had occasion to decide, on the basis of Frontera, whether such bad faith existed as to warrant the award of damages for a wrongful seizure in admiralty. See e.g., Cardinal Shipping Corp. v. M/S SEISHO MARU, 744 F.2d 461 (5th Cir.1984); TTT Stevedores of Texas, Inc. v. M/V JAGAT VIJETA, 696 F.2d 1135 (5th Cir.1983); Tampa Ship Repair & Dry Dock Co. v. Esso Export Corp., 237 F.2d 506, 1956 A.M.C. 217 (5th Cir.1956). In none of these cases, however, were we required to decide the precise issue presented to us on this appeal: whether a counterclaim for wrongful seizure is an appropriate basis for requiring counter-security to be posted under Admiralty Rule E(7), or its predecessor, former Admiralty Rule 50. Upon examination of the intent of the Rule, we are of the opinion that counter-security should not be ordered for such a claim. Under the terms of Rule E(7), counter-security may be required when a counterclaim is asserted which arises “out of the same transaction or occurrence” as the original libel. This language is identical to that defining compulsory counterclaims under F.R.Civ.P. 13(a). Thus, as Professor Moore has suggested, we can draw guidance on the proper scope of Rule E(7) by examining the test for counterclaims under F.R.Civ.P. 13(a). 7A J. Moore &" }, { "docid": "8573826", "title": "", "text": "upon any counterclaim arising out of the same contract or cause of action for which the original libel suit was filed, and the respondent or claimant in the original suit shall have given security to respond in damages, the respondent in the cross-libel shall give security in the usual amount and form to respond in damages to the claims set forth in said cross-libel, unless the court, for cause shown, shall otherwise direct; and all proceedings on the original libel shall be stayed until such security be given, unless the court otherwise directs. . As the Supreme Court has stated, Traditionally, admiralty has narrowly circumscribed the filing of unrelated cross-libels and defenses____[VJarious reasons have been offered for refusal to entertain unrelated defenses: protection of the seaman’s wage claims; preservation of relatively simple proceedings not affecting third-party rights; and the recognition that allowing cross-libels might deprive litigants of jury trials to which they would otherwise be entitled if the cross-libel were pressed in an independent proceeding. United States v. Isthmanian SS Co., 359 U.S. 314, 320, 79 S.Ct. 857, 860-61, 3 L.Ed.2d 845, 849-50, 1959 A.M.C. 1332, 1337 (1959). Given this traditional narrow construction, the court concluded: The law on this point in admiralty has been settled beyond doubt in the lower courts for many years and an Admiralty Rule of this Court recognizes this case law. We think that if the law is to change it should be by rule-making or legislation and not by decision. Id. at 323, 79 S.Ct. at 862, 3 L.Ed.2d at 851. . While the Solomon court held that a claim of wrongful seizure would not lie at all as a cross-claim in admiralty, 305 F.2d at 943, we do not decide that question. We merely hold that counter-security may not be required under Rule E(7) for such a claim. We observe, however, that other courts have reached the same conclusion as the court in Solomon. See, Maritime Terminals v. M/S JAN, 1978 A.M.C. 1236 (N.D.Ill.1978) (claim of wrongful arrest does not lie as cross-claim in admiralty); United States v. M/V PITCAIRN, 272 F.Supp. 518" }, { "docid": "19848176", "title": "", "text": "in admiralty cases” but may be awarded “in cases where the nonprevailing party has acted in bad faith throughout the course of the litigation”); Cardinal Shipping Corp. v. M/S Seisho Maru, 744 F.2d 461 (5th Cir.1984) (in case involving wrongful seizure of a ship, in order to collect attorneys' fees, plaintiff must prove that party seizing the vessel acted in bad faith, with malice, or with wanton disregard for rights of plaintiff). . Deriving from Article VI of the Laws of Oleron, 30 Fed.Cas. 1171, 1174, maintenance and cure is designed to provide a seaman with food and lodging when he is injured or becomes sick while in the service of a ship: \"[I]f by the [ship] master’s orders and commands any of the ship's company be in the service of the ship, and thereby happen to be wounded or otherwise hurt, in that case they shall be cured and provided for at the costs and charges of the said ship.\" Vaughan, 369 U.S. at 531-32 & n. 4, 82 S.Ct. at 1000 & n. 4. . In Vaughan, the Court observed simply that: \"Our question concerns damages. Counsel fees were allowed in The Apollon, 9 Wheat. 362, 379, 6 L.Ed. 111 [1824], an admiralty suit where one party was put to expense in recovering demurrage of a vessel wrongfully seized. While failure to give maintenance and cure may give rise to a claim for damages for the suffering and for the physical handicap which follows, the recovery may also include 'necessary expenses.'\" Id. at 530, 82 S.Ct. at 999. The Court then proceeded to describe the faulty conduct of the respondents without indicating whether the different components of Vaughan's recovery were separately identified with particular “degrees” of the respondents’ fault. We observed in Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir.1995), that Vaughan did not address whether the \"fee-shifting” associated with a finding of bad faith was compensatory or punitive in nature. Nevertheless, we noted in Guevara that: \"In the end, we need not definitely resolve whether Vaughan awarded attorney's fees as an item of compensatory or" }, { "docid": "17935579", "title": "", "text": "Torts, Comments r and s (1977). As noted earlier, the district court found that HSC-TCI did not induce WESA to breach its contract with Furness Withy. In light of the fact that there was uncertainty as to whether Furness Withy would meet the cancellation date as provided in its COA, we conclude that this finding is not clearly erroneous. Because of the absence of any such inducement and the lack of any wrongful motive on the part of HSC-TCI, the district court’s determination that there was no proof of tortious interference is affirmed. II. The Damages Award The district court awarded to HSC-TCI over $600,000.00 in damages plus interest. It reached this result despite its prior conclusion that HSC-TCI was not entitled to any damages on its counterclaims for wrongful attachment. The issue before us is whether this award can be sustained in view of the court’s failure to rule in favor of HSC-TCI on any of its counterclaims. Furness Withy attached the coal and letter of credit pursuant to Fed.R.Civ.P.Supp. B(l). The district court found that the attachment of the coal was ineffective because HSC-TCI, not WESA, owned the coal and the attachment of the letter of credit was invalid because HSC-TCPs rights in that letter were superior to those of WESA. Furness Withy maintains that the attachment of the coal was lawful because the transaction between WESA and HSC-TCI was no more than a pledge of the goods which left WESA with an interest in the coal subject to attachment. We need not reach this issue, however, because the district court found that HSC-TCI was not entitled to any damages as a result of these allegedly wrongful attachments because there was no demonstrable bad faith or malice by Furness Withy. See Frontera Fruit Co. v. Dowling, 91 F.2d 293 (5th Cir.1937); Ships & Freights, Inc. v. Farr, Whitlock & Co., 188 F.Supp. 438, 439 (E.D.N.Y.1960) (plaintiff must prove bad faith in order to prevail on claims of wrongful attachment in admiralty cases). In light of this conclusion, the attachments of the coal and letter of credit cannot serve" } ]

[ { "docid": "23162192", "title": "", "text": "exempt from local execution, and the like. Cf. Harris v. Standard Accident & Ins. Co., 2 Cir., 1961, 297 F.2d 627; certiorari denied 82 S.Ct. 875, 7 L.Ed.2d 847. . .The Assured cites among many cases. Home Indemnity Co. v. Snowden, 1954, 223 Ark. 64, 284 S.W.2d 642; Anderson v. Southern Surety Co., 1920, 107 Kan. 375, 191 P. 583, 21 A.L.R. 761; Douglas v. United States Fidelity & Guaranty Co., 1924, 81 N.H. 371, 127 A. 708, 37 A.L.R. 1477; United States Guarantee Co. v. Liberty Mutual Ins. Co., 1943, 244 Wis. 317, 12 N.W.2d 59, 150 A.L.R. 632; Wisconsin Zinc Co. v. Fidelity & Deposit Co., 1916, 162 Wis. 39, 155 N.W. 1081; Ballard v. Ocean Accident & Guarantee Co., 7 Cir., 1936, 86 F.2d 449; Dumas v. Hartford Accident & Indemnity Co., 1947, 94 N.H. 484, 56 A.2d 57; Highway Ins. Underwriters v. Lufkin-Beaumont Motor Coaches, Inc., Tex.Civ.App., 1948, 215 S.W.2d 904. . See Hall v. Preferred Accident Insurance of New York, 5 Cir., 1953, 204 F. 2d 844, 140 A.L.R.2d 162. . Rule 56(c) “ * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . The outright undertaking to defend found in Paragraph II (a) is followed, in the same sentence, by this: “but the company [Insurer] may make such investigation, negotiation and settlement of any claim or suit as it deems expedient;”. . Reliance was placed primarily on Spangler v. Sellers, C.C.S.D.Okio, 1881, 5 F. 882, followed in Maryland Casualty Co. v. Price, 4 Cir., 1916, 231 F. 397. See 45 A.L.R.2d 5, 55 (1956). See also 69 A.L.R.2d 690, 695 (1960). . The Assured strongly urges but the Insurer stoutly distinguishes the following Georgia cases: Francis v. Newton, 1947, 75 Ga.App. 341, 43 S.E.2d 282; Georgia Casualty & Surety Co. v. Reville, 1957, 95 Ga.App. 358, 98 S.E.2d 210; Reville v. Sullivan," } ]

[ { "docid": "23072924", "title": "", "text": "McFarland v. Chicago Exp., Inc., 7 Cir., 200 F.2d 5; St. Paul-Mercury Indemnity Co. v. Martin, 10 Cir., 190 F.2d 455; Zurich General Accident & Liability Ins. Co. v. Clamor, 7 Cir., 124 F.2d 717; Michigan Alkali Co. v. Bankers Indemnity Ins. Co., 2 Cir., 103 F.2d 345; Continental Casualty Co. v. Curtis Pub. Co., 3 Cir., 94 F.2d 710; St. Paul Fire & Marine Ins. Co. v. Garza County Warehouse & Marketing Ass’n, 5 Cir., 93 F.2d 590; Farm Bureau Mut. Automobile Ins. Co. v. Preferred Acc. Ins. Co., D.C.W.D.Va., 78 F.Supp. 561; Aetna Casualty & Surety Co. v. Buckeye Union Casualty Co., 157 Ohio St. 385, 105 N.E.2d 568, 31 A.L.R.2d 1317; American Surety Co. of New York v. American Indemnity Co., 8 N.J.Super. 343, 72 A.2d 798; Speier v. Ayling, 158 Pa.Super. 404, 45 A.2d 385; Grasberger v. Liebert & Obert, 335 Pa. 491, 6 A.2d 925, 122 A.L.R. 1201; State Farm Mut. Auto Ins. Co. v. Hall, 292 Ky. 22, 165 S.W.2d 838; Travelers Indemnity Co. v. State Automobile Ins. Co., 67 Ohio App. 457, 37 N.E.2d 198; Great American Indemnity Co. v. McMenamin, Tex.Civ.App., 134 S.W.2d 734; Central Surety & Ins. Corp. v. London & Lancashire Indemnity Co. of America, 181 Wash. 353, 43 P.2d 12. Canal points to an extended coverage provision in American Surety’s policy which extends its protection to the owner, if not a carrier required by law to carry insurance, of a hired vehicle. Thus the lessor, as well as the lessee, had available to it the protection of both policies. There is no rule, however, that excess insurance may not be extended as such to an additional insured, and there is nothing in the extended coverage provision which suggests that American Surety intended to change the character and nature of the coverage afforded by the policy to its named insured, Johnson Motor Lines. The extended coverage provision does not refer, even by implication, to the excess insurance clause, and, there being no conflict between them, we can, and must, give effect to both of them. Finally, it is suggested that" }, { "docid": "15406360", "title": "", "text": "court below, or that given to it by then District Judge Smith in Turgeon v. Shelby Mutual Plate Glass & Cas. Co., 112 F.Supp. 355 (D.Conn.1953). Indeed, the cases cited by Professor Keeton, note 6 supra,, construing the same provision appearing in insurance policies, are further support for this reading of the statute. The fortuitous and to my mind irrelevant death of the assured is held by the majority to permit an insurer to conduct settlement negotiations in bad faith, on the basis that the assured’s estate was so small that his widow’s allowance and funeral expense could have consumed it. The majority has forged a rule of law that makes the insurer’s duty turn on the wealth or poverty and the survival of the assured. This rule is further refined — by the decision in Young v. American Casualty Co., note 2 supra — so that if the deceased assured had had one dollar over priority items available for his heirs the plaintiff would have been entitled to recover the excess of his judgment over the policy limits, some $75,000. Such a rule might give incentive to insurers to write limited policies for the financially irresponsible, but it appears to me to be an anomaly. I would affirm the judgment. . Harris v. Standard Acc. & Ins. Co., 297 F.2d 627, 630 (2d Cir. 1961) (2-1 decision), cert. denied, 369 U.S. 843, 82 S.Ct. 875, 7 L.Ed.2d 847 (1962) (where assured insolvent before and bankrupt after entry of judgment, suit for recovery of excess over policy limits will not lie). . Young v. American Cas. Co., 416 F.2d 906 (2d Cir. 1969), petition for cert. dismissed, 396 U.S. 997, 90 S.Ct. 580, 24 L. Ed.2d 499 (1970) (Harris inapplicable if insured not insolvent at time of settlement negotiations); Anderson v. St. Paul Mercury Indem. Co., 340 F.2d 406, 409 (7th Cir. 1965); lessen v. O’Daniel, 210 F.Supp. 317, 329-330 (D.Mont.1962), aff’d sub nom. National Farmers Union Prop. & Cas. Co. v. O’Daniel, 9 Cir., 329 F.2d 60 (1964); Nichols v. United States Fid. & Guar. Co., 37 Wis.2d 238," }, { "docid": "3046329", "title": "", "text": "for the question now for determination. State Farm contends that the submission of the SR-21 to the Department of Safety, at its request, was done only to verify the statements of the insured as made in the report of the accident and had no contractual connotations. To sustain this position, State Farm has cited a number of authorities. Blue Ridge Insurance Co. v. Haun, 197 Tenn. 527, 276 S.W.2d 711; Vanderbilt Law Review, Vol. 12, p. 1227; Turner v. Harris, 198 Tenn. 654, 281 S.W.2d 661; Barkley v. International Mut. Ins. Co., 227 S.C. 38, 86 S.E.2d 602; Va. Farm Bur. Mut. Ins. Co. v. Saccio, 204 Va. 769, 133 S.E.2d 268; Ky. Farm Bur. Mut. Ins. Co. v. Miles, Ky., 267 S.W.2d 928; Aetna Cas. & Surety Co. v. Simpson, 228 Ark. 157, 306 S.W.2d 117; Stollery Bros., Inc. v. Inter-Ins. Exchange of Chicago Motor Club, 15 Ill.App.2d 179, 145 N.E.2d 768; McCarthy v. Insurance Co. of Texas, Tex. Civ.App., 271 S.W.2d 836; De Vigil v. General Accident Fire & Life Assurance Co., D.C., 146 F.Supp. 729; M.F.A. Mut. Ins. Co. v. Mullin, D.C., 156 F.Supp 445; Hoosier Cas. Co. of Indianapolis, Ind. v. Fox, D.C., 102 F.Supp. 214; State Farm Mutual Automobile Ins. Co. v. Cooper, 4 Cir., 233 F.2d 500; Farm Bureau Mut. Automobile Ins. Co. v. Hammer, 4 Cir., 177 F.2d 793. It is unnecessary to go into a discussion of the authorities submitted by State Farm for the reason that no precedents have been cited, nor can be found, holding that under a financial responsibility act an insurance company having a policy of insurance in effect at the time of an accident becomes absolutely liable for a judgment in favor of an injured party by reason of the filing of an SR-21. No court has gone further in holding insurance carriers liable under financial responsibility acts similar to the Tennessee Act than to rule that the filing of an SR-21 works an estoppel upon the insurance carrier from claiming that conditions existing at the time of the filing of the SR-21 invalidated the policy, which" }, { "docid": "9654958", "title": "", "text": "extend their benefit to the interests of parties which are jeoparded or challenged even before a right of action exists or cause of action accrues. Borehard says: “The opposition to the plaintiff’s demand must come from a source competent legally to jeopardize his right. Where, however, that is conceded, it still remains to determine whether the plaintiff has a sufficient interest, pecuniary or personal, to institute a proceeding worthy of judicial relief. He must show that his rights are in direct issue or jeopardy; and incidental thereto, must show that the facts are sufficiently complete, mature, proximate, and ripe to place him in gear with his adversary, and thus to warrant the grant of judicial relief. Just when the controversy has reached the stage of maturity cannot be a priori defined.” Borehard, Declaratory Judgments (1-934) p. 36. A declaration of nonliability is within the ambit of justiciability. Edwin Borchard, Justiciability (1936), 4 University of Chicago Law Review, 1-24; Borehard, Recent Developments in Declaratory Relief (1936), 10 Temple Law Quarterly, 233. In the field of liability insurance, the right to a judicial declaration of liability or nonliability upon the happening of the accident has been given full recognition. Aetna Life Insurance Co. v. Haworth, 1937, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000; Aetna Life Ins. Co. v. Williams, 1937, 8 Cir., 88 F.2d 929; Central Surety & Insurance Corporation v. Caswell, 1937, 5 Cir., 91 F.2d 607; Columbian National Life Insurance Co. v. Foulke, 1937, 8 Cir., 89 F.2d 261; Stephenson v. Equitable Life Assurance Society of U. S., 1937, 4 Cir., 92 F.2d 406; Farm Bureau Mutual Automobile Ins. Co. v. Daniel, 1937, 4 Cir., 92 F.2d 838; Carpenter v. Edmonson, 1937, 5 Cir., 92 F.2d 895; Western Casualty Co. v. Beverforden, 1937, 8 Cir., 93 F.2d 166. And see John A. Appleman, “Automobile Insurance and the Declaratory Judgment,” 1937, 23 A.B.A.Journal, 551. A demand that the insurer defend an action warrants an appeal to courts for a declaration of nonliability. Associated Indemnity Corporation v. Manning, 1937, 9 Cir., 92 F.2d 168; Travelers Ins. Co." }, { "docid": "4267677", "title": "", "text": "a defense. In other words, the insurer’s unconditional defense of an action brought against its insured constitutes a waiver of the terms of the policy and an estoppel of the insurer to assert the defense of noncoverage. New Jersey Fidelity & Plate Glass Ins. Co. v. McGillis, 10 Cir., 42 F.2d 789; Schmidt v. National Auto. & Cas. Ins. Co., 8 Cir., 207 F.2d 301, 38 A.L.R.2d 1142; General Tire Co. of Minneapolis v. Standard Acc. Ins. Co., 8 Cir., 65 F.2d 237; Claverie v. American Casualty Co. of Reading, Pa., 4 Cir., 76 F.2d 570, cert. denied, 296 U.S. 590, 56 S.Ct. 102, 80 L.Ed. 417; 29A Am. Jur., Insurance, § 1465, pp. 577-579; 45 C.J.S. Insurance § 714, pp. 684-690; Annot.’s, 81 A.L.R. 1326 and 38 A.L.R.2d 1148. Judge Breitenstein, speaking for this Court, in Harbin v. Assurance Company of America, 308 F.2d 748, 749, recognized the difficult position an insurer sometimes finds itself in, in undertaking the defense of an action brought against its insured, and said: “In such circumstances the control of the defense by the insurer carries with it the potential of prejudice to the insureds and the assumption of such control without a reservation of right to deny liability would have obligated the insurer to pay within the policy limits if the plaintiff should succeed.” Indeed, by the weight of authority, it is not necessary for the insured to show prejudice in such a situation because he is presumed to have been prejudiced by virtue of the insurer’s assumption of the defense. Schmidt v. National Auto. & Cas. Ins. Co., supra; General Tire Co. of Minneapolis v. Standard Acc. Ins. Co., supra; 45 C.J.S. Insurance § 714, p. 689; 29A Am.Jur., Insurance, § 1466, p. 579. In the case of Traders & General Ins. Co. v. Rudco Oil & Gas Co., 10 Cir., 129 F.2d 621, at page 627, 142 A.L.R. 799, Judge Murrah speaking for this Court said: “ * * * The right to control the litigation in all of its aspects carries with it the correlative duty to exercise diligence, intelligence," }, { "docid": "9956013", "title": "", "text": "purpose. We can only enforce the policy as it was written. The judgment of the District Court, therefore, is affirmed. . Lumber Mutual Casualty Insurance Co. of New York v. Stukes, 4 Cir., 1947, 164 F.2d 571; Johnson v. Aetna Casualty & Surety Co., 5 Cir., 1939, 104 F.2d 22; American Fidelity & Casualty Insurance Co. v. St. Paul-Mercury Indem. Co., 5 Cir., 1957, 248 F.2d 509; Travelers Insurance Co. v. Ohio Farmers Indem. Co., 6 Cir., 1958, 262 F.2d 132; Webb v. American Fire & Cas. Co., 1941, 148 Fla. 714, 5 So.2d 252; Continental Casualty Co. v. Pierce, 1934, 170 Miss. 67, 154 So. 279; Simpson v. American Auto Ins. Co., Mo.App.1954, 327 S.W.2d 519; Clinton Cotton Oil Co. v. Hartford Accid. & Indemni. Co., 1936, 180 S.C. 459, 186 S.E. 399; Birrenkott v. McManamay, 1937, 65 S.D. 581, 276 N.W. 725; Shawcroft v. Standard Accid. Ins. Co. of Detroit, 1934, 177 Wash. 106, 30 P.2d 987; Associated Indemnity Co. v. Wachsmith, 1940, 2 Wash.2d 679, 99 P.2d 420, 127 A.L.R. 531. . Ginder v. Harleysville Mut. Cas. Co., 3 Cir., 1943, 135 F.2d 215 (affirming D.C., 49 F.Supp. 745); State Farm Mutual Automobile Insurance Co. v. Mackecknie, 8 Cir., 1940, 114 F.2d 728; Kaifer v. Georgia Cas. Co., 9 Cir., 1933, 67 F.2d 309; St. Paul-Mercury Indemnity Co. v. American Fid. & Cas. Co., D.C.M.D.Ala.1956, 146 F.Supp. 39; Travelers Insurance Co. v. American Fid. & Cas. Co., D.C.Minn.1958, 164 F.Supp. 393; Canadian Indemnity Co. v. State Automobile Insurance Ass’n, D.C.Ore.,1959, 174 F.Supp. 71, 81; New v. General Cas. Co. of America, D.C.M.D.Tenn.1955, 133 F.Supp. 955; Pleasant Valley Lima Bean Growers & Warehouse Ass’n v. Cal-Farm Ins. Co., 1956, 142 Cal. App.2d 126, 298 P.2d 109; Pullen v. Employers Liability Assur. Corp., 1956, 230 La. 867, 89 So.2d 373; Motor Vehicle Casualty Co. v. Smith, 1956, 247 Mirm. 151, 76 N.W.2d 486; Farm Bureau Mutual Automobile Insurance Co. v. Manson, 1947, 94 N.H. 389, 54 A.2d 580; Maryland Casualty Co. v. New Jersey Mfrs. Ins. Co., 1958, 48 N.J.Super. 314, 137 A.2d 577; Morgan v. Greater N. Y." }, { "docid": "9956014", "title": "", "text": "Ginder v. Harleysville Mut. Cas. Co., 3 Cir., 1943, 135 F.2d 215 (affirming D.C., 49 F.Supp. 745); State Farm Mutual Automobile Insurance Co. v. Mackecknie, 8 Cir., 1940, 114 F.2d 728; Kaifer v. Georgia Cas. Co., 9 Cir., 1933, 67 F.2d 309; St. Paul-Mercury Indemnity Co. v. American Fid. & Cas. Co., D.C.M.D.Ala.1956, 146 F.Supp. 39; Travelers Insurance Co. v. American Fid. & Cas. Co., D.C.Minn.1958, 164 F.Supp. 393; Canadian Indemnity Co. v. State Automobile Insurance Ass’n, D.C.Ore.,1959, 174 F.Supp. 71, 81; New v. General Cas. Co. of America, D.C.M.D.Tenn.1955, 133 F.Supp. 955; Pleasant Valley Lima Bean Growers & Warehouse Ass’n v. Cal-Farm Ins. Co., 1956, 142 Cal. App.2d 126, 298 P.2d 109; Pullen v. Employers Liability Assur. Corp., 1956, 230 La. 867, 89 So.2d 373; Motor Vehicle Casualty Co. v. Smith, 1956, 247 Mirm. 151, 76 N.W.2d 486; Farm Bureau Mutual Automobile Insurance Co. v. Manson, 1947, 94 N.H. 389, 54 A.2d 580; Maryland Casualty Co. v. New Jersey Mfrs. Ins. Co., 1958, 48 N.J.Super. 314, 137 A.2d 577; Morgan v. Greater N. Y. Taxpayers Mut. Ins. Ass’n, 1956, 305 N.Y. 243, 112 N.E.2d 273; Universal Carload & Distributing Co. v. Merchants Mut. Cas. Co., et al., 1957, 9 Misc.2d 177, 167 N.Y.2d 655; Greaves v. Public Service Mut. Ins. Co., 1959, 5 N.Y.2d 120, 181 N.Y.S.2d 489, 155 N.E.2d 390; Home Indemnity Co. v. Village of Plymouth, 1945, 146 Ohio St. 96, 64 N.E.2d 248; Travelers Insurance Co. v. Buckeye Union Cas. Co., Ohio Com.Pl.1959, 160 N.E. 2d 874; Montgomery v. Keystone Mut. Cas. Co., 1947, 357 Pa. 223, 53 A.2d 539; Ayres v. Harleysville Mut. Cas. Co., 1939, 172 Va. 383, 2 S.E.2d 303; Employers Mutual Liability Insurance Co. v. Tollefsen, 1935, 219 Wis. 434, 263 N.W. 376; Vick v. Brown, 1949, 255 Wis. 147, 38 N.W.2d 716; Buck v. Home Mut. Cas. Co., 1951, 258 Wis. 538, 46 N.W.2d 749; Sandstrom v. Clausen’s Estate, 1951, 258 Wis. 534, 46 N.W.2d 831; McMann v. Faulstich, 1951, 259 Wis. 7, 47 N.W.2d 317; Zippel v. Country Gordens, Inc., 1952, 262 Wis. 567, 55 N.W. 2d 903; Severin v." }, { "docid": "22260258", "title": "", "text": "for the defendant. . McCaleb v. Continental Cas. Co., 132 Tex. 65, 116 S.W.2d 679; Brown v. Palatine Ins. Co., 89 Tex. 590, 35 S.W. 1060 ; 24 Tex.Jur., 702-11; Lewis v. Ocean Accident, 224 N.Y. 18, 120 N.E. 56, 7 A.L.R. 1129; International Travelers’ Ass’n v. Francis, 119 Tex. 1, 23 S.W.2d 282. . Aetna Ins. Co. v. Houston Oil & Transport Co., 5 Cir., 49 F.2d 121; Love v. Northwestern Natl. Life Ins. Co., 5 Cir., 119 F.2d 251; 22 Texas Digest, Insurance, <S^>146(3) p. 157. . Schmidt v. Utilities Ins. Co., 353 Mo. 213, 182 S.W.2d 181, 154 A.L.R. 1088; Maryland Cas. Co. v. Tighe, 9 Cir., 115 F.2d 297; State ex rel. Butte Brewing Co. v. District Court, 110 Mont. 250, 100 P.2d 932; Maryland Cas. Co. v. Cassetty, 6 Cir., 119 F.2d 602; Earl W. Baker & Co. v. Lagaly, 10 Cir., 144 F.2d 344; Huntington Cab Co. v. Am. Fid. & Cas. Co., 4 Cir., 155 F.2d 117; St. Paul Mercury Ind. Co. v. Crow, 5 Cir., 164 F.2d 270; Pacific Auto. Ins. Co. v. Commercial Cas. Ins. Co., 108 Utah 500, 161 P.2d 423, 160 A.L.R. 1251 and note. . American Employers Ins. Co. v. Brock, Tex.Civ.App., 215 S.W.2d 370; Panhandle Steel Products Co. v. Fidelity Union Cas. Co., Tex.Civ.App., 23 S.W.2d; 799. . Connecticut Indemnity Co. v. Lee, D.C., 74 F.Supp. 353; Bobier v. National Cas. Co., 143 Ohio St. 215, 54 N.E.2d 798; State ex rel. Butte Brewing Co., v. District Court, 110 Mont. 250, 100 P.2d 932; and cases cited in Annotation, 154 A.L.R. 1097-1098. . Cf. Annotation to Pacific Auto. Ins. Co. v. Commercial Ins. Co., 160 A.L.R. at page 1264. . Cases of this kind are Ferry v. Protective Indemn. Co., 155 Pa. Super. 266, 38 A.2d 493; Stammer v. Kitzmiller, 220 Wis. 348, 276 N.W. 629. . In Panhandle Steel Products Co. v. Fidelity Union Cas. Co., Tex.Civ.App., 23 S.W.2d 799, 801, though the policy did not contain a definition of “use” as “including loading and unloading”, the Texas Court held “loading and unloading” included in “use”" }, { "docid": "9654959", "title": "", "text": "insurance, the right to a judicial declaration of liability or nonliability upon the happening of the accident has been given full recognition. Aetna Life Insurance Co. v. Haworth, 1937, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000; Aetna Life Ins. Co. v. Williams, 1937, 8 Cir., 88 F.2d 929; Central Surety & Insurance Corporation v. Caswell, 1937, 5 Cir., 91 F.2d 607; Columbian National Life Insurance Co. v. Foulke, 1937, 8 Cir., 89 F.2d 261; Stephenson v. Equitable Life Assurance Society of U. S., 1937, 4 Cir., 92 F.2d 406; Farm Bureau Mutual Automobile Ins. Co. v. Daniel, 1937, 4 Cir., 92 F.2d 838; Carpenter v. Edmonson, 1937, 5 Cir., 92 F.2d 895; Western Casualty Co. v. Beverforden, 1937, 8 Cir., 93 F.2d 166. And see John A. Appleman, “Automobile Insurance and the Declaratory Judgment,” 1937, 23 A.B.A.Journal, 551. A demand that the insurer defend an action warrants an appeal to courts for a declaration of nonliability. Associated Indemnity Corporation v. Manning, 1937, 9 Cir., 92 F.2d 168; Travelers Ins. Co. v. Young, 1937, D.C.N.J., 18 F.Supp. 450; United States Fidelity & Guaranty Co. v. Hearn, 1936, 233 Ala. 31, 170 So. 59; American Motorists Ins. Co. v. Central Garage, 1933, 86 N.H. 362, 169 A. 121. When the policy obligates the insurer to defend, declarations seeking to free him from the obligation have been entertained even when no demand to defend a pending action had actually been made on him. Ohio Casualty Ins. Co. v. Plummer, 1935, D.C.Tex., 13 F.Supp. 169; American Motorists Ins. Co. v. Busch, 1938, D.C.Cal., 22 F.Supp. 72, decided February 7, 1938, by our colleague, the Honorable Ralph E. Jenney; Commercial Casualty Insurance Co. v. Humphrey, 1935, D.C.Tex., 13 F.Supp. 174. These decisions accord with others holding that courts may intervene by way of declaration “either before or after the stage of relief by coercion has been reached.” Gully v. Interstate Natural Gas Co., 1936, 5 Cir., 82 F.2d 145, 149; see: Hann v. Venetian Blind Corporation, 1936, D.C.Cal., 15 F.Supp. 372; Pan American Petroleum Co. v. Chase Nat. Bank, 1936," }, { "docid": "6441270", "title": "", "text": "the net value of the estate would be determined in a separate proceeding. . Dumas v. Hartford Accident & Indemnity Co., 1942, 92 N.H. 140, 28 A.2d 361; Universal Auto. Ins. Co. v. Culberson, 1935, 126 Tex. 282, 86 S.W.2d 727, 87 S.W.2d 475; Norwood v. Travelers Ins. Co., 1939, 204 Minn. 595, 284 N.W. 785, 786, 131 A.L.R. 1496; cf. American Mutual Liability Ins. Co. of Boston, Mass. v. Cooper, 5 Cir., 1932, 61 F.2d 446, cert. den. 289 U.S. 736, 53 S.Ct. 595, 77 L.Ed. 1483 (1933); Boling v. New Amsterdam Casualty Co., 1935, 173 Okl. 160, 46 P.2d 916. (Both of these cases involved question of when statute of limitations began to run.) . Brown v. Guarantee Ins. Co., 1958, 155 Cal.App.2d 679, 319 P.2d 69, 66 A.L.R.2d 1202; Henke v. Iowa Home Mutual Casualty Company, supra; Farmers Ins. Exchange v. Henderson, supra; Southern Fire & Cas. Co. v. Norris, 1952, 35 Tenn. App. 657, 250 S.W.2d 785, cert. den. by Tennessee Sup.Ct., 1952; Schwartz v. Norwich Union Indemnity Co., 1933, 212 Wis. 593, 595, 250 N.W. 446; Murray v. Mossman, 1960, 56 Wash.2d 909, 355 P.2d 985. . The opinion of the district court, D.C. Md.1960, 184 F.Supp. 634, contains an exhaustive and impartial review of the authorities. Judge Watkins recognizes that, “The trend of the recent decisions has generally, although not uniformly, been to allow recovery in a suit by an insured plaintiff based merely upon entry of a judgment, after breach of the insurer’s duty of settlement, against plaintiff in excess of the policy limits, regard-loss of whether the insured has paid or can pay any or all of the judgment above the amounts of the policy limits.” (184 F.Supp. at 639, 640) . The court considered the effect of a prior decision of the same circuit, State Automobile Mut. Ins. Co. of Columbus, Ohio v. York, 4 Cir. 1939, 104 F.2d 730, 734, relied upon by National and cited frequently in support of the view that the judgment must be paid before a cause of action arises against the insurer. It was not" }, { "docid": "6441269", "title": "", "text": "of counsel during the trial under the circumstances here, however, must be considered in determining the ultimate, question of good faith. . The mere fact that the insurer fails to settle within the policy limits following a demand by the insured is not in itself evidence of bad faith. Often a demand is made by the insured as a routine matter. Under the circumstances here, however, the demand by the insured is entitled to weight, to be considered with the other factors in determining whether National exercised the requisite good faith. . It is alleged in National’s answer that the total value of the property which O’Daniel owned at the time of his death and which would be subject to the judgment is $11,846.05, that probate costs will amount to approximately $1,400.00, leaving a net estate of $10,446.05, “and that by reason thereof the liability, if any, of this cross-defendant is limited to $10,446.05”. It was agreed at the pretrial conference that if the court should rule with National on this contention, the amount of the net value of the estate would be determined in a separate proceeding. . Dumas v. Hartford Accident & Indemnity Co., 1942, 92 N.H. 140, 28 A.2d 361; Universal Auto. Ins. Co. v. Culberson, 1935, 126 Tex. 282, 86 S.W.2d 727, 87 S.W.2d 475; Norwood v. Travelers Ins. Co., 1939, 204 Minn. 595, 284 N.W. 785, 786, 131 A.L.R. 1496; cf. American Mutual Liability Ins. Co. of Boston, Mass. v. Cooper, 5 Cir., 1932, 61 F.2d 446, cert. den. 289 U.S. 736, 53 S.Ct. 595, 77 L.Ed. 1483 (1933); Boling v. New Amsterdam Casualty Co., 1935, 173 Okl. 160, 46 P.2d 916. (Both of these cases involved question of when statute of limitations began to run.) . Brown v. Guarantee Ins. Co., 1958, 155 Cal.App.2d 679, 319 P.2d 69, 66 A.L.R.2d 1202; Henke v. Iowa Home Mutual Casualty Company, supra; Farmers Ins. Exchange v. Henderson, supra; Southern Fire & Cas. Co. v. Norris, 1952, 35 Tenn. App. 657, 250 S.W.2d 785, cert. den. by Tennessee Sup.Ct., 1952; Schwartz v. Norwich Union Indemnity Co., 1933, 212" }, { "docid": "14775336", "title": "", "text": "cannot easily or rationally be extended to actions for refusal to settle. We note that in the Shaw case, supra, the court awarded interest from the date of the original judgment against the insured. On rehearing, the Florida Supreme Court upheld that element of the award. 134 Fla. 832, 184 So. 860. The judgment is affirmed. . Suit is now pending to determine whether the collisions constituted a single accident under the policy. We express no opinion on the matter. . Mr. and Mrs. Rawls instituted suit against Bess on November 9, 1963, and obtained a verdict for $24,840 on May 6, 1965. . Keeton, Preferential Settlement of Liability-Insurance Claims, 70 Harv.L.Rev. 27 (1956). . Auto Mut. Indemnity Co. v. Shaw, 1938, 134 Fla. 815, 184 So. 852, 859; American Fire & Cas. Co. v. Davis, Fla.D.Ct.App., 1962, 146 So.2d 615, 617; American Fidelity & Casualty Co. v. Greyhound Corp., 5 Cir. 1956, 232 F.2d 89, 93; Dotschay v. National Mutual Ins. Co., 5 Cir. 1957, 246 F.2d 221, 222; Tully v. Travelers Ins. Co., N.D.Fla., 1954, 118 F.Supp. 568, 569; cf. Canal Ins. Co. v. Sturgis, Fla.D.Ct.App., 1959, 114 So.2d 469, 115 So.2d 774; Fla., 1960, 122 So.2d 313; see 7A Appleman, Insurance § 4712 (1962). See also Hendry v. Grange Mutual Casualty Co., 5 Cir. 1967, 372 F.2d 222; Seward v. State Farm Mutual Automobile Insurance Company, 5 Cir. 1968, 392 F.2d 723. . In Brown v. United States Fidelity and Guaranty Company, 2 Cir. 1963, 314 F.2d 675 the insurer reached an agreement with one claimant, but disabled itself from performing by lavishing excessive portions of the policy in the settlement of other, less meritorious, claims. The court accepted “the company’s overeager settlement of the claims in disregard of the possibility of the assured’s resulting personal liability” as evidence of the sort of bad faith upon which recovery might be premised. 314 F.2d at 682. . This principle operates with particular force where the defendant has no assets other than the policy proceeds. Litigation over money in excess of the policy then wonld be a waste of" }, { "docid": "15329654", "title": "", "text": "use the car consistent with the original permission. The first permittee with unrestricted authority to use the car is said to have been placed in the shoes of the named insured, and the permission of the first permittee is deemed to be the permission of the named insured for the purposes of omnibus coverage. State Farm Mutual Auto Insurance Company v. Automobile Underwriters, Inc., 371 F.2d 999 (7 Cir. 1967); Pennsylvania Thresherman & Farmers’ Mut. Cas. Ins. Co. v. Crapet, 199 F.2d 850 (5 Cir. 1952); United Services Automobile Ass’n v. Preferred Acc. Ins. Co. of N. Y., 190 F.2d 404 (10 Cir. 1951); Ohio Casualty Insurance Company v. Pennsylvania National Mutual Casualty Insurance Company, 238 F.Supp. 706 (D.Md.1965), affd., 352 F.2d 308 (4 Cir. 1965); Hinchey v. National Surety Company, 99 N.H. 373, 111 A.2d 827 (1955); Krebsbach v. Miller, 22 Wis.2d 171, 125 N.W.2d 408 (1963); Baesler v. Globe Indemnity Co., 33 N.J. 148, 162 A.2d 854, 857 (1960) (dictum). However, there may be no such implication of authority when the first permit-tee’s use is severely restricted as to time and place. Horn, By and Through Godwin v. Allied Mutual Casualty Company, 272 F.2d 76 (10 Cir. 1959); Anderson v. Adams, 148 So.2d 347 (La.App., 1962); Harper v. Hartford Accident & Indemnity Company, 14 Wis.2d 500, 111 N.W.2d 480 (1961). Furthermore, an almost equal number of cases apply a strict and more narrow approach to the problem. These cases point out that the risk of the insurance company cannot be expanded by implying in the first permittee the power to supply the permission of the named insured, and that authority to delegate the use of an automobile to a third person is not a normal incident of even unlimited permission to use the automobile. Peterson v. Sunshine Mutual Insurance Company, 273 F.2d 53 (8 Cir. 1959) (applying N.D. law); Duff v. Alliance Mutual Casualty Company, 296 F.2d 506 (10 Cir. 1961); Ewing v. Colorado Farm Mutual Casualty Co., 133 Colo. 447, 296 P.2d 1040 (1956); Volk v. Cacchione, 395 Pa. 636, 150 A.2d 849 (1959); Hunton v. McCarvel," }, { "docid": "14080678", "title": "", "text": "and her husband; and she knew that he was to accompany her husband on a joint venture for the benefit of both. During this trip, and while Gibbs was driving, an accident occurred. The court concluded that at the time of the accident, the circumstances were such that Gibbs had the implied permission of the insured to drive her car. The Kansas court followed the general rule that the permission referred to in the omnibus clause may be express or implied. It may be established by a showing of a course of conduct or relationship between the parties, including lack of objection to the use by the permittee, which signifies acquiescence or consent of the insured. 5A Am.Jur., Automobile Insurance, § 94; United Services Auto. Ass’n v. Preferred Acc. Ins. Co., 10 Cir., 190 F.2d 404. See Samuels v. American Automobile Ins. Co., 10 Cir., 150 F.2d 221, 160 A.L.R. 1191, Annotation 1195, 1202; Lumbermen’s Mut. Cas. Co. v. Sutch, 3 Cir., 197 F.2d 79; Aetna Casualty & Surety Co. v. De Maison, 3 Cir., 213 F.2d 826; Farmer v. Fidelity & Casualty Co., 4 Cir., 249 F.2d 185; State Farm Mutual Automobile Ins. Co. v. Cook, 186 Va. 658, 43 S.E.2d 863, 5 A.L.R.2d 594, Annotation 600. Clearly the facts of the Gibbs case distinguish it from the case at bar. Here the evidence is without dispute that the permission given to Jerry Margaret to drive the car was limited to use in going to and from school; she did not have permission to allow others to drive the car and, prior to the date of the accident, she had not permitted another person to operate the vehicle; she did not have general permission to use the automobile but was required to obtain permission for each particular use; she was not present on the trip when the accident occurred; and Karen Sue drove the car solely for her own use and benefit. In Fisher v. Firemen’s Fund Indemnity Co., supra [244 F.2d 196], we construed the omnibus clause of a policy issued in Kansas as to its application when" }, { "docid": "23072923", "title": "", "text": "out of the use of temporary substitute or other vehicles. Such excess insurance clauses serve a useful purpose in avoiding conflict. They are neither invalid nor unconscionable, and they may be given effect without invalidating a pro rata contribution clause in the policy providing the other protection. Canal’s policy here limits its liability to a proportion of the loss, based upon the relation of the policy limits, if there is other valid and collectible insurance available to the insured. That clause operates in countless situations in which the other insurance is not excess, and it is not rendered meaningless if appropriate effect is given to the excess insurance clauses. Thus, it is generally held, as stated by Appleman, in referring to our exact situation, that “a nonownership clause (coverage of liabilities arising out of the use of a hired or other vehicle) with an excess coverage provision, does not constitute other valid and collectible insurance, within the meaning of a primary policy with an omnibus clause.” 8 Appleman, Insurance Law and Practice 334, § 4914; McFarland v. Chicago Exp., Inc., 7 Cir., 200 F.2d 5; St. Paul-Mercury Indemnity Co. v. Martin, 10 Cir., 190 F.2d 455; Zurich General Accident & Liability Ins. Co. v. Clamor, 7 Cir., 124 F.2d 717; Michigan Alkali Co. v. Bankers Indemnity Ins. Co., 2 Cir., 103 F.2d 345; Continental Casualty Co. v. Curtis Pub. Co., 3 Cir., 94 F.2d 710; St. Paul Fire & Marine Ins. Co. v. Garza County Warehouse & Marketing Ass’n, 5 Cir., 93 F.2d 590; Farm Bureau Mut. Automobile Ins. Co. v. Preferred Acc. Ins. Co., D.C.W.D.Va., 78 F.Supp. 561; Aetna Casualty & Surety Co. v. Buckeye Union Casualty Co., 157 Ohio St. 385, 105 N.E.2d 568, 31 A.L.R.2d 1317; American Surety Co. of New York v. American Indemnity Co., 8 N.J.Super. 343, 72 A.2d 798; Speier v. Ayling, 158 Pa.Super. 404, 45 A.2d 385; Grasberger v. Liebert & Obert, 335 Pa. 491, 6 A.2d 925, 122 A.L.R. 1201; State Farm Mut. Auto Ins. Co. v. Hall, 292 Ky. 22, 165 S.W.2d 838; Travelers Indemnity Co. v. State Automobile Ins. Co.," }, { "docid": "15406361", "title": "", "text": "over the policy limits, some $75,000. Such a rule might give incentive to insurers to write limited policies for the financially irresponsible, but it appears to me to be an anomaly. I would affirm the judgment. . Harris v. Standard Acc. & Ins. Co., 297 F.2d 627, 630 (2d Cir. 1961) (2-1 decision), cert. denied, 369 U.S. 843, 82 S.Ct. 875, 7 L.Ed.2d 847 (1962) (where assured insolvent before and bankrupt after entry of judgment, suit for recovery of excess over policy limits will not lie). . Young v. American Cas. Co., 416 F.2d 906 (2d Cir. 1969), petition for cert. dismissed, 396 U.S. 997, 90 S.Ct. 580, 24 L. Ed.2d 499 (1970) (Harris inapplicable if insured not insolvent at time of settlement negotiations); Anderson v. St. Paul Mercury Indem. Co., 340 F.2d 406, 409 (7th Cir. 1965); lessen v. O’Daniel, 210 F.Supp. 317, 329-330 (D.Mont.1962), aff’d sub nom. National Farmers Union Prop. & Cas. Co. v. O’Daniel, 9 Cir., 329 F.2d 60 (1964); Nichols v. United States Fid. & Guar. Co., 37 Wis.2d 238, 155 N.AV.2d 104 (1967). See also Brockstein v. Nationwide Mut. Ins. Co., 417 F.2d 703 (2d Cir. 1969). . 7A J. Appleman, Insurance Law and Practice § 4711, at 207 (Supp.1970), says as to the majority opinion in Harris v. Standard Acc. & Ins. Co., 297 F.2d 627 (2d Cir. 1961) (2-1 decision), cert. denied, 369 U.S. 843, 82 S.Ct. 875, 7 L.Ed. 2d 847 (1962): This decision is subject to criticism for the following reasons: The assumption that the insured suffered no loss is contrary to fact. Although the New York statute [prohibiting use of assured’s insolvency as defense] is keyed to policy limits, the court disregards the fact that the insurer’s conduct in refusing in bad faith to settle within policy limits is a breach of contract, and the promise to settle constitutes part of the coverage protected by the statute. Finally it opens a new avenue for driving down the amount of a proposed settlement without additional risk to the insurer. See also 60 Mich.L.Rev. 517 (1962); 41 Texas L.Rev. 595 (1963)." }, { "docid": "84534", "title": "", "text": "diligence. And an additional insured was under no duty to give notice, until he had knowledge that he was covered by the policy.” In support of this, Appleman, with full basis, cites Scott v. Inter-Insurance Exchange of Chicago Motor Club, 352 Ill. 572, 186 N.E. 176, affirming 267 Ill.App. 105; Unverzagt v. Prestera, 339 Pa. 141, 13 A.2d 46; Dixon v. United States Fidelity & Guaranty Co., Mo.App., 155 S.W.2d 313; R. H. Macy & Co. v. General Accident, Fire & Life Assurance Corp., 4 Misc.2d 89, 148 N.Y.S.2d 10, and Pitts v. Aetna Casualty & Surety Co., 2 Cir., 218 F.2d 58, certiorari denied 348 U.S. 973, 75 S.Ct. 535, 99 L.Ed. 757. And to these may be added the recent case Jameson v. Farmers Mutual Auto Ins. Co., 181 Kan. 120, 309 P.2d 394. See also Spradlin v. Columbia Ins. Co., 34 Tenn.App. 17, 232 S.W.2d 605, and Whitehead v. National Casualty Co., Tex. Civ.App., 273 S.W.2d 678, error refused, and especially the latter which collects a large number of cases showing this to be the uniform rule in life, health and accident policies. While the Court labors at underwriting factors which are for the Insurer to assay, Maryland Casualty Co. v. Southern Farm Bureau Casualty Ins. Co., 5 Cir., 235 F.2d 679, 683, its emphasis on paragraphs 9,10 and 11 of the policy, see note 2 of the Court’s opinion, supra, involves, in my judgment, two errors. First, it ignores the basic coverage provided, note d, supra, to pay liabilities imposed by law on the assured. Defense is an additional obligation, but the fact that the insurer does not defend affords no escape if the coverage existed. United Services Automobile Association v. Russom, 5 Cir., 241 F.2d 296, 301. And second, if notice, given immediately after learning of the existence of the policy, is “as soon as practicable,” there has been a compliance with the policy conditions even though it has come after judgment and without an opportunity to defend. Such a consequence might be unusual to be sure, but uniqueness is the major and minor theme" }, { "docid": "15237525", "title": "", "text": "in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” . See the lucid opinion of Judge Whittaker in Wessing v. American Indemnity Co. of Galveston, Texas, 127 F.Supp. 775 [D.C.Mo.1955], where at page 782 he states: “Here, the excess liability asserted arises out of the relationship between the defendant, the insurer, and its in sureds. Mrs. Douglas was a stranger to that relationship. The defendant owed her no duty at all. Henee, I fail to see how it could be liable to her, in tort, for a breach of duty, for it owed her none. Moreover, her complaint shows that had her offer to settle been accepted she would have gotten $15,000, but, because it was rejected, her cause went to trial and she obtained a $47,500 judgment, $15,000 of which has been paid. Thus, she did not lose, but stands to benefit, by the failure of defendant to accept her offer of settlement.” . Quotation from paragrah 3 of second defense in defendant’s answer. . Wessing v. American Indemnity Co. of Galveston, Tex., 127 F.Supp. 775 [D.C.Mo.1955] ; Smoot v. State Farm Mutual Automobile Insurance Company, 299 F.2d 525, 529 [5th Cir. 1962]; Southern Farm Bureau Casualty Insurance Company v. Mitchell, 312 F.2d 485, 497 (8th Cir. 1963]; and National Farmers Union Property and Casualty Company v. O’Daniel, 329 F.2d 60, 66 [9th Cir. 1964]. See also 7 Am.Jur.2nd Automobile Insurance, Section 158, page 490." }, { "docid": "23232991", "title": "", "text": "App.Div. 446, 119 N.Y.S.2d 795, appeal denied 281 App.Div. 1069, 121 N.Y.S.2d 767; Birrenkott v. McManamay, 65 S.D. 581, 276 N.W. 725; Associated Indemnity Corp. v. Wachsmith, 2 Wash.2d 679, 99 P.2d 420, 127 A.L.R. 531; Shawcroft v. Standard Accident Ins. Co., 177 Wash. 106, 30 P.2d 987; Continental Casualty Company v. Pierce, 170 Miss. 67, 154 So. 279; Gibbs v. Employers Mut. Liability & Ins. Co., 224 N.C. 462, 31 S.E.2d 377; Webb v. American Fire & Casualty Co., 148 Fla. 714, 5 So.2d 252; American Fidelity Co. v. Deerfield Valley Grain Co., D.C. Vt., 43 F.Supp. 841; Pearson v. Johnson, 215 Minn. 480, 10 N.W.2d 357; Elliott v. Behner, 150 Kan. 876, 96 P.2d 852; Connelly v. London & Lancashire Indemnity Co. of America, 68 R.I. 446, 28 A.2d 753, 29 A.2d 540. Cases either holding or indicating that the policy does cover suits by an employee of the named insured against an Omnibus Assured: Lumber Mutual Casualty Ins. Co. of New York v. Stukes, 4 Cir., 164 F.2d 571; Kaifer v. Georgia Casualty Co., 9 Cir., 67 F.2d 309; Pullen v. Employers’ Liability Insurance Corp., 1956, 230 La. 867, 89 So.2d 373; Pleasant Valley Lima Bean Growers & Warehouse Association v. Cal-Farm Insurance Co., 1956, 142 Cal.App.2d 126, 298 P.2d 109; Ginder v. Harleysville Mut. Cas. Co., D.C.Pa., 49 F.Supp. 745, affirmed, 3 Cir., 135 F.2d 215; Motor Vehicle Casualty Co. v. Smith, 247 Minn. 151, 76 N.W.2d 486; New v. General Casualty Company of America, D.C.Tenn., 133 F.Supp. 955; Farm Bureau Mut. Auto. Ins. Co. v. Smoot, D.C.W.Va., 95 F.Supp. 600. Wisconsin cases rest heavily on a special statute, discussed, Sandstrom v. Clausen’s Estate, 258 Wis. 534, 46 N.W.2d 831; McMann v. Faulstich, 1951, 259 Wis. 7, 47 N.W.2d 317; Zippel v. Country Gardens, Inc., 262 Wis. 567, 55 N.W.2d 903; Shanahan v. Midland Coach Lines, 268 Wis. 233, 67 N.W.2d 297; Narloch v. Church, 234 Wis. 155, 290 N.W. 595. Note : These cases involve cross-suits by one employee against a fellow employee having a status of Omnibus Assured as to which Omnibus coverage is" }, { "docid": "23014164", "title": "", "text": "406; Farm Bureau Mut. Auto. Ins. Co. v. Daniel, 4 Cir., 92 F.2d 838; Aetna Casualty & Surety Co. v. Quarles, 4 Cir., 92 F.2d 321. Bearing these considerations in mind, we are nevertheless' of the opinion that a case is made on the facts recited for the relief afforded by a declaratory judgment. The immediate question which the surety must decide is whether it is obliged to defend the suit against the insured in the state court. Obviously its decision cannot await the determination of that suit,’nor need the determination of its duty in this respect interfere with the trial of the state suit. An actual controversy as to its contractual duty has arisen between it and the holder of its policy, and hence such a situation exists as is contemplated by the terms of the statute. Moreover, a question of coverage is involved, for the duty to defend and the duty to indemnify are both absolved by criminal conduct on the part of the insured, and this question may not be conclusively decided in the state suit to which the company is not a party, even though it undertakes the defense. See Carpenter v. Edmonson, 5 Cir., 92 F.2d 895. In similar situations it has been held in a number of recent cases that the insurer is entitled to be advised by the court whether or not it is obligated to defend and indemnify the insured against claims upon which suits are threatened or have already been brought. Central Surety & Ins. Corp. v. Caswell, 5 Cir., 91 F.2d 607; Associated Indemnity Corp. v. Manning, 9 Cir., 92 F.2d 168; Western Casualty & Surety Co. v. Beverforden, 8 Cir., 93 F.2d 166; United States Fidelity & Guaranty Co. v. Pierson, 8 Cir., 97 F.2d 560; Ohio Casualty Ins. Co. v. Plummer, D.C., 13 F.Supp. 169; Western Casualty & Surety Co. v. Odom, D.C., 21 F.Supp. 574; Standard Accident Ins. Co. v. Alexander, Inc., D.C., 23 F.Supp. 807; Maryland Casualty Co. v. Tighe, D.C., 24 F.Supp. 49; American Motorists Ins. Co. v. Busch, D.C., 22 F.Supp. 72; Employers’ Liability" } ]

[ { "docid": "3164953", "title": "", "text": "determination of this issue and does not claim that his representation was less than fully adequate in any regard, the prejudice to Jones if his petition for leave to intervene is denied is negligible. He is denied only the right to appeal an order directed against the parties whom he has up to now allowed to be the sole defenders of his alleged attorney-client and work product privileges. The records sought are records created by an accounting firm in which Jones has no interest whatsoever. 4: The existence of unusual circumstances militating either for or against a determination that the application is timely. The only unusual circumstance present in this case tilts the scales towards finding that Jones’s application for leave to intervene is untimely. Jones was fully aware of the litigation, and deliberately chose not to intervene in order to avoid tolling the statute of limitations. In fact, Jones’s initial brief stressed that his “motion requesting that he be named individually as an Appellant in this proceeding is not the equivalent of a motion to intervene or a motion to join----” Jones demonstrated calculated disregard of the proper procedure for a taxpayer to follow to participate in a procedure to quash an IRS summons. Now that his plan has failed, he cannot belatedly change his strategy and intervene. For these reasons, the motion to intervene is DENIED, and, no other party having sought to appeal, the appeal is DISMISSED. A separate decision on defendants’ cross-appeal was rendered on August 19, 1985, No. 84-1682 (5th Cir.). . 26 U.S.C. § 7602. . 26 U.S.C. § 7609(a)(3). . 26 U.S.C. § 7609(a)(1). . 26 U.S.C. § 7609(b)(1). . 26 U.S.C. § 7609(b)(2)(C). . 26 U.S.C. § 6501. . 26 U.S.C. § 6531. . 26 U.S.C. § 7609(e). . United States v. Kemper Money Market Fund, Inc., 704 F.2d 389, 391 (7th Cir.1983); United States v. First Fidelity Bank of Colome, 631 F.2d 568, 569 (8th Cir.1980); United States v. Equitable Trust Co., 611 F.2d 492, 495 (4th Cir.1979), cert. denied, 445 U.S. 950, 100 S.Ct. 1599, 63 L.Ed.2d 785 (1980). ." } ]

[ { "docid": "8400944", "title": "", "text": "criminal defendants.”); Hintze v. I.R.S., 879 F.2d 121, 127 (4th Cir.1989) (\"The taxpayers here might well have prevailed, moreover, had they succeeded in showing that the IRS was pursuing its investigation for the sole purpose of building a case on anticipated criminal charges,” citing LaSalle); and United States v. Lawn Builders of New England, Inc., 856 F.2d 388, 391-92 (1st Cir.1988) (\"[T]he IRS must not have abandoned the pursuit of civil tax determination or collection,” citing LaSalle) with La Mura v. United States, 765 F.2d 974, 980 n. 9 (11th Cir.1985) (suggesting that the 1982 amendments limited the grounds for non-enforcement to actual referral and eliminated LaSalle's \"institutional commitment” ground); Pickel v. United States, 746 F.2d 176, 183-84 (3d Cir.1984) (holding that \"Congress codified the position of the dissenters in [LaSalle ] by enacting the [1982] amendments to section 7602\") and Segmond v. United States, 589 F.Supp. 568, 573 (S.D.N.Y.1984) (“Although prior to September 4, 1982, a summons could not issue solely for a ‘criminal purpose' (i.e. to inquire into possible criminal conduct), [the 1982 amendments] abolished that ‘criminal purpose’ defense.”). We also note that, in United States v. Kemper Money Market Fund, Inc., 781 F.2d 1268 (7th Cir.1986), a panel of this court was critical of LaSalle and hinted that the 1982 amendments may have limited it, but did not reach the issue because the case arose under the pre-amendment version of § 7602. Id. at 1276- 77. See also United States v. Particle Data, Inc., 634 F.Supp. 272, 276-77 (N.D.Ill.1986). For the reasons discussed below, however, we need not, and do not, resolve this debate here. COFFEY, Circuit Judge, concurring. I write separately to explain why I have changed my vote from the original panel decision. At the en banc hearing, it became evident through our exhaustive questioning that the sole purpose of the summonses at issue here was to gather information, pursuant to a criminal investigation, prior to referring the case to the Justice Department for prosecution. In United States v. LaSalle Nat’l Bank, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978), the Supreme Court" }, { "docid": "1430948", "title": "", "text": "report. District Counsel for the IRS referred the case to the Department of Justice with a recommendation for prosecution on December 19, 1979. An information in three counts alleging failure to file tax returns issued on June 22, 1981. Trial was had on October 21, 1981, with the result that Stuart was found guilty on all counts by the jury. A. Admission of Evidence Obtained Through Summonses. Defendant first alleges that the district court erred in admitting into evidence certain documents obtained through the use of IRS summonses. He contends that the summons process was not utilized for one of the valid civil purposes enumerated in 26 U.S.C. § 7602, but for the purpose of aiding a criminal investigation. This is not Stuart’s first challenge to the IRS summonses. On March 10, 1978, agent Huckabee filed petitions to enforce the summonses, and Stuart intervened to oppose judicial enforcement. He argued that the summonses had issued improperly without a showing of tax liability, and that they violated his fifth and fourth amendment rights. On appeal from the district court’s order of enforcement we concluded that there was no merit in these arguments. United States v. Stuart, 587 F.2d 929 (8th Cir. 1978). Stuart now attempts to attack the summonses on the different ground that they were not issued in good faith prior to an institutional decision to prosecute, as required by United States v. LaSalle National Bank, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978). We decline to reach defendant’s present challenge on the merits. The argument he raises could have been raised, and should have been, in the prior proceeding. Robbins v. District Court, 592 F.2d 1015, 1017-18 (8th Cir.), cert. denied, 444 U.S. 852, 100 S.Ct. 107, 62 L.Ed.2d 69 (1979). The principle of res judicata bars relitigation of the same claim even where a new theory is advanced as a basis for relief in the second suit. Roach v. Teamsters Local Union No. 688, 595 F.2d 446, 448 (8th Cir. 1979). This is a classic case of a litigant impermissibly attempting to relitigate the same claim" }, { "docid": "5317868", "title": "", "text": "526, 532-33 (7th Cir.1981); United States v. Patmon, 630 F.2d 458, 459 (6th Cir.1980); United States v. Arthur Andersen & Co., 623 F.2d 720, 722 (1st Cir.1980); United States v. Deak-Perera Intern. Banking Corp., 610 F.2d 89, 89 (2d Cir.1979); but see Gluck v. United States, 771 F.2d 750, 754 (3d Cir.1985) (\"[T]he surrendering of the documents to the IRS does not end the controversy between the parties because, if we.find that the summonses were illegal, we can still fashion a remedy-prohibition of the use of the summoned documents — to afford the [appellants] effective relief.\"). . Under the “sole criminal purpose\" doctrine, which the courts developed as a judicial gloss on the original language of § 7602, interested parties may obtain an order quashing administrative summonses upon any showing that the IRS is pursuing the underlying investigation for the sole purpose of collecting evidence for use in a criminal prosecution. See United States v. Theodore, 479 F.2d 749, 753 (4th Cir.1973). In concrete terms, the rule is that the government may not seek enforcement of summonses issued after the IRS has referred a case to the Department of Justice for prosecution. LaSalle, 437 U.S. at 311, 98 S.Ct. at 2365. More importantly, the rule also requires that the courts refuse to enforce summonses once the IRS has \"institutionally committed” itself to such a referral. Id. at 316-17, 98 S.Ct. at 2367-68 (IRS may not delay referral for purpose of gathering additional evidence for anticipated prosecution, since ‘‘[s]uch a delay would be tantamount to the use of the summons authority after the recommendation and would permit the Government to expand its criminal discovery rights\"). In 1982, Congress amended § 7602 to make explicit the LaSalle rule that the IRS may not issue an administrative summons once it has recommended prosecution to the Department of Justice. Pub.L. 97-248, Title III, § 333(a), 96 Stat. 622 (1982) (codified as 26 U.S.C. § 7602(c)). In the present case, the government argues that the 1982 amendments \"legislatively overruled the ‘sole criminal purpose’ doctrine, and authorize! 1 the issuance of a summons to conduct a" }, { "docid": "4217725", "title": "", "text": "make the necessary preliminary showing, we hold that the trial court did not abuse its discretion in denying appellant’s motions for discovery. Appellant next argues that the district court erred in denying his motion for dismissal of the indictment. During the course of the investigation leading to appellant’s indictment, IRS agent Lavia issued summonses to several banks under authority of 26 U.S.C. § 7602, to produce certain documents and records pertaining to transactions between the banks and appellant during the period December 1976 to December 1982. Appellant argues that the summonses were issued solely for the purpose of gathering evidence to document and prosecute a criminal tax case and that IRS agent Lavia improperly delayed recommending prosecution in order to gather additional evidence. Appellant asserts that these actions constitute abuse of the civil summons process and bad faith on the part of the IRS. Appellant argues that because the grand jury indictment was primarily based on information obtained as a result of the improperly issued summonses, the indictment should be dismissed. The government argues that appellant has exhausted his opportunity to litigate the validity of the summonses in prior proceedings and that in any event the record is devoid of facts supporting appellant’s allegations. The government argues that the summonses were issued in order to gather evidence in furtherance of the inherently intertwined civil tax, criminal tax and drug investigations. The government contends that the issuance of the summonses for this purpose is a proper exercise of its civil summons authority. Initially we note that the prior summons enforcement proceedings do not preclude appellant’s present challenge. The Seventh and Eighth Circuits both dismissed as moot appeals arising from the third party summons enforcement actions pertaining to the present ease and in so doing expressly stated that the dismissals were without prejudice to appellant’s right to challenge the validity of the summonses in subsequent proceedings. See United States v. First Family Mortgage Corp., 739 F.2d 1275, 1279 (7th Cir.1984); United States v. Clinton State Bank, No. 82-2214 (8th Cir. Mar. 18, 1983) (order). Turning to appellant’s substantive claims, we cannot conclude" }, { "docid": "18656568", "title": "", "text": "had not been referred to the Department of Justice for criminal prosecution. However, the IRS subsequently recommended criminal prosecution of the petitioner. See 26 U.S.C. § 7602(c). Issuance of an IRS summons in conjunction with an investigation of civil tax liability prior to referral to the Justice Department must meet a test of good faith. See United States v. Grayson County State Bank, 656 F.2d 1070 (5th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1276, 71 L.Ed.2d 460 (1982). This showing of good faith by the IRS is generally made by affidavit of the agent who issued the summons and is seeking enforcement. See, e.g., United States v. Garden State Nat’l Bank, 607 F.2d 61 (3d Cir.1979). After the government has made a minimal showing of good faith, as was done in this action by Special Agent Studdard’s affidavit, the taxpayer bears the heavy burden of proving that the IRS, as an institution, has abandoned pursuit of the taxpayer’s civil tax liability and has improperly issued the summons for the sole purpose of criminal prosecution. See United States v. Southeast First Nat’l Bank of Miami Springs, 655 F.2d 661, 665 (5th Cir.1981) (Unit B). This showing requires the taxpayer to prove an “extraordinary departure” from the IRS’ established procedures. Id. (citing United States v. LaSalle Nat’l Bank, 437 U.S. 298, 314, 316, 98 S.Ct. 2357, 2366, 2367, 57 L.Ed.2d 221 (1978)). Before an agent completes an investigation and makes a recommendation for criminal prosecution, a summons is “virtually unassailable.” United States v. Harris, 628 F.2d 875, 882 (5th Cir.1980). In this action the summons was issued and the IRS sought to have it enforced. The taxpayer petitioned to quash the summons, and the government then moved to dismiss the petition to quash and sought summary enforcement of the summons without an adversary evidentiary hearing. The magistrate, however, did conduct an adversary hearing in response to the petitioner’s allegations of improper purpose by the IRS in issuing the summons. Petitioner was allowed to present testimony and examine IRS agent Studdard who issued the summons. In his objections to the magistrate’s" }, { "docid": "195395", "title": "", "text": "States v. Dauphin Deposit Trust Co., 385 F.2d 129 (3d Cir. 1967), cert. denied, 390 U.S. 921, 88 S.Ct. 854, 19 L.Ed.2d 981 (1968), there is little reason to expect them to raise the defense that the summonses were issued to further a solely criminal investigation of the taxpayer. Cf. United States v. Continental Bank & Trust Co., 503 F.2d 45 (10th Cir. 1974). This is not a matter of the third party bank’s interest, but of the taxpayer’s. Thus, the courts have provided that the taxpayer may challenge the validity of a summons issued to a third party either at the investigatory stage or, if necessary, at the trial level. Reisman v. Caplin; Donaldson v. United States; United States v. LaSalle National Bank; United States v. Friedman; United States v. Lafko; United States v. McCarthy, supra. As has frequently been noted, the rationale of these cases derives from the distinct roles traditionally accorded the investigatory functions of the grand jury, on the one hand, and the IRS, on the other hand. Grand jury subpoenas, such as those involved in Miller, are used to garner evidence to be presented to a federal grand jury, whose sole purpose is to investigate criminal activity. It is exclusively a criminal investigatory tool. But an IRS administrative summons is a process essentially civil in character. While a summons may result in obtaining evidence which might ultimately find its way to a grand jury, the statutory authority for its issuance is civil and the evidentiary objective at the time of its issuance must be civil in nature. Thus, the grand jury apparatus has traditionally been the means by which evidence required to form the basis of a contemplated criminal charge can be compulsorily produced, and the courts, in construing § 7602, have identified a protectable interest, assertable by the taxpayer, in preventing the IRS from encroaching upon what has traditionally been the sole province of the grand jury. Were Miller to be held dispositive of the present case, serious doubt would be cast upon those decisions, including Donaldson and LaSalle, which hold that IRS summonses" }, { "docid": "16056119", "title": "", "text": "cause why the summons should not be enforced. Taxpayer did not testify at the show cause hearing, but filed a motion to dismiss the petition on grounds it was barred by his fifth amendment right against self-incrimination. The magistrate recommended that the summons be enforced in its entirety, finding that the I.R.S. had made a prima facie showing for the enforcement of the summons as required by United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-255, 13 L.Ed.2d 112 (1969), and that taxpayer had failed to present facts demonstrating a legally sufficient defense. The magistrate also found that the I.R.S. had not referred the case to the Department of Justice for criminal prosecution. The magistrate’s recommendation was adopted by the district court. Taxpayer appeals solely on the constitutional grounds that the fourth and fifth amendments excuse him from the production of the summoned documents. DISCUSSION Taxpayer’s fourth amendment defense is easily disposed of. The enforcement of an IRS summons does not violate the fourth amendment as long as the IRS has complied with the Powell requirements. United States v. McAnlis, 721 F.2d 334, 337 (11th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 2681, 81 L.Ed.2d 877 (1984); United States v. Roundtree, 420 F.2d 845, 847-50 (5th Cir.1969). Taxpayer does not dispute the district court’s finding that these prerequisites were met. Likewise, taxpayer’s fifth amendment defense is without merit. Taxpayer asserts a broad, generalized fifth amendment privilege in refusing to turn over any of the documents requested by the summons. However, a taxpayer seeking the protection of the fifth amendment privilege against self-incrimination must provide more than mere speculative, generalized allegations of possible tax-related criminal prosecution. To invoke the privilege, the taxpayer must be faced with substantial and real hazards of self-incrimination. See United States v. Apfelbaum, 445 U.S. 115, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980); Edwards v. Commissioner, 680 F.2d 1268, 1270 (9th Cir.1982). When the I.R.S. properly issues a summons in support of a civil investigation to determine a taxpayer’s legal tax liability, the mere fact that evidence might be used against the taxpayer in" }, { "docid": "13526510", "title": "", "text": "denied the opportunity to intervene, Wenz and Merrick were unable to raise certain defenses to enforcement of the IRS summonses. In United States v. Kis, 658 F.2d 526 (7th Cir.1981), cert. denied sub nom. Salkin v. United States, 455 U.S. 1018, 102 S.Ct. 1712, 72 L.Ed.2d 135 (1982), this court granted taxpayers certain procedural rights in summons enforcement proceedings. Of paramount importance is the right to serve interrogatories on the IRS with the purpose of ascertaining whether a summons is supported by a proper civil purpose. The right to file “Kis interrogatories,” however, is available only where the taxpayer is a party to the summons enforcement proceedings. Thus, without intervention a taxpayer will be unable to launch a proper defense to summons enforcement. The district court placed Wenz and Merrick in a “Catch-22” situation. On the basis that taxpayers had not adequately met their burden of showing that the IRS lacked a proper institutional purpose for the summonses the court denied their motions to intervene. This, in turn, precluded the taxpayers from discovering whether the IRS was, in fact, proceeding pursuant to a proper purpose. It is true that “once they have intervened, taxpayers face an almost insurmountable hurdle” in attempting to block enforcement of an IRS summons. In re East Nat’l Bank of Denver, 517 F.Supp. 1061, 1065 (D.Colo.1981). Be that as it may, each taxpayer has a statutory right to approach that hurdle as a party to the proceedings, with the full benefit of discovery rights conferred by virtue of that status. This opportunity was denied to taxpayers Wenz and Merrick. III. Conclusion Wenz and Merrick had a statutory right to intervene in the summons enforcement proceedings below. We find that this intervention was timely sought, and, thus, taxpayers’ motions to intervene were improperly denied. Accordingly, the judgment of the district court is reversed. On remand the taxpayers should be granted leave to intervene and to serve their Kis interrogatories on the government. Reversed And Remanded With Instructions. . The taxpayers took this action pursuant to 26 U.S.C. § 7609 which provides that where a civil summons is" }, { "docid": "10973299", "title": "", "text": "laws, even when the criminal investigation is the sole investigation. Joint Committee on Taxation, General Explanation of the Revenue Provisions of the Tax Equity and Fiscal Responsibility Act of 1981, 97th Cong., 2d Sess. 236 (emphasis added). The only remaining limitation on the IRS’s authority to pursue criminal investigations through administrative summonses is found in section 7602(c), namely that no summons may properly be issued if a Justice Department referral has been effected with respect to the taxpayer. No such referral has been made, or indeed is expected with any degree of certainty, in this case (McQuade Aff., H 10). The summonses were issued after the effective date of TEFRA, and therefore are proper. Segmond’s argument that, since the summonses are directed to tax years pre-dating TEFRA, the Act’s provisions are inapplicable, is to no avail. See Godwin, 564 F.Supp. at 1213-14 (records for tax years 1978 through 1982 sought; summons enforced). This assuredly is the proper course, since the TEFRA amendments effected a change in the procedures of administrative investigations and summonses, not in the substantive law governing taxpayers’ conduct; thus, the amendments are being applied prospectively, and not retroactively in any way. The Court finds that Segmond’s second contention is equally without merit. Segmond argues that his Fourth Amendment rights will be violated by enforcement of these summonses, because they are “nothing more than a ‘fishing expedition’ ... [issued] in a blunderbuss fashion.” Affidavit of Benjamin J. Golub, dated February 17, 1983, ¶¶ 13-14. Segmond fails, however, to cite a single case denying enforcement to an IRS summons because it is overbroad. Segmond’s concern with the “breadth” of the summonses is misguided. See United States v. Wyatt, 637 F.2d 293, 297 (5th Cir.1981) (“the basic question is relevancy”). An unenforceable and over-broad summons is one that is either too indefinite to readily ascertain what is called for, see Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208, 66 S.Ct. 494, 505, 90 L.Ed. 614 (1946) (“too much indefiniteness ... in the things required to be ‘particularly described’ ”), or so broad as to encompass irrelevant matters, see" }, { "docid": "8400943", "title": "", "text": "may be found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, or other data. The district courts also enforce the Code's restrictions on the time, place and manner of the Service’s examinations of taxpayers contained in § 7605: No taxpayer shall be subjected to unnecessary examination or investigations, and only one inspection of a taxpayer’s books of account shall be made for each taxable year unless the taxpayer requests otherwise or unless the [Service], after investigation, notifies the taxpayer in writing that an additional inspection is necessary. 26 U.S.C. § 7605(b). . There is some debate as to whether this \"solely criminal purpose” ground discussed in LaSalle .survived the 1982 amendments to § 7602, and specifically the addition of § 7602(b). Compare United States v. Stuart, 489 U.S. 353, 109 S.Ct. 1183, 1189, 103 L.Ed.2d 388 (1989) (\"When Congress codified the essence of our holding [in LaSalle ] in § 7602(c), it apparently shared our concern about permitting the IRS to encroach upon the rights of potential criminal defendants.”); Hintze v. I.R.S., 879 F.2d 121, 127 (4th Cir.1989) (\"The taxpayers here might well have prevailed, moreover, had they succeeded in showing that the IRS was pursuing its investigation for the sole purpose of building a case on anticipated criminal charges,” citing LaSalle); and United States v. Lawn Builders of New England, Inc., 856 F.2d 388, 391-92 (1st Cir.1988) (\"[T]he IRS must not have abandoned the pursuit of civil tax determination or collection,” citing LaSalle) with La Mura v. United States, 765 F.2d 974, 980 n. 9 (11th Cir.1985) (suggesting that the 1982 amendments limited the grounds for non-enforcement to actual referral and eliminated LaSalle's \"institutional commitment” ground); Pickel v. United States, 746 F.2d 176, 183-84 (3d Cir.1984) (holding that \"Congress codified the position of the dissenters in [LaSalle ] by enacting the [1982] amendments to section 7602\") and Segmond v. United States, 589 F.Supp. 568, 573 (S.D.N.Y.1984) (“Although prior to September 4, 1982, a summons could not issue solely for a ‘criminal purpose' (i.e. to inquire into possible criminal conduct), [the 1982" }, { "docid": "5317869", "title": "", "text": "of summonses issued after the IRS has referred a case to the Department of Justice for prosecution. LaSalle, 437 U.S. at 311, 98 S.Ct. at 2365. More importantly, the rule also requires that the courts refuse to enforce summonses once the IRS has \"institutionally committed” itself to such a referral. Id. at 316-17, 98 S.Ct. at 2367-68 (IRS may not delay referral for purpose of gathering additional evidence for anticipated prosecution, since ‘‘[s]uch a delay would be tantamount to the use of the summons authority after the recommendation and would permit the Government to expand its criminal discovery rights\"). In 1982, Congress amended § 7602 to make explicit the LaSalle rule that the IRS may not issue an administrative summons once it has recommended prosecution to the Department of Justice. Pub.L. 97-248, Title III, § 333(a), 96 Stat. 622 (1982) (codified as 26 U.S.C. § 7602(c)). In the present case, the government argues that the 1982 amendments \"legislatively overruled the ‘sole criminal purpose’ doctrine, and authorize! 1 the issuance of a summons to conduct a solely criminal investigation until such time as there is a referral.\" Appellee’s Br. at 13. The Supreme Court has recently held, however, that amended § 7602 ”codifle[s] the essence of [the] holding” in LaSalle, and that the IRS still may not “circumvent\" the (now codified) prohibition against post-referral use of the summons power \"by delaying ... a recommendation [for prosecution] in order to gather additional information.” United States v. Stuart, — U.S. -, -, 109 S.Ct. 1183, 1189, 103 L.Ed.2d 388 (1989). . On appeal, petitioners have also claimed that the district court should not have granted the government’s motion for summary enforcement because the IRS already had in its possession the information described in the challenged summonses. Because our review of the record reveals that this claim was not presented to the district court, however, and because we are not persuaded that \"our refusal to consider it would result in a miscarriage of justice,” we decline to express any opinion on its merits. National Wildlife Fed’n v. Hanson, 859 F.2d 313, 318 (4th Cir.1988)." }, { "docid": "195417", "title": "", "text": "Donaldson v. United States, supra, 400 U.S. at 519-20, 91 S.Ct. 534; Callahan v. First Pennsylvania Bank, 422 F.Supp. 1098 (E.D.Pa.1976). . Prior to the recent enactment of 26 U.S.C. § 7609 (see note 11 infra), the IRS was not required to give notice to the taxpayer under investigation that a summons had been served on a third party. United States v. Continental Bank & Trust Co., 503 F.2d 45 (10th Cir. 1974); Application of Cole, 342 F.2d 5 (2d Cir. 1965). . The taxpayer’s right to intervene in enforcement proceedings is permissive only and not mandatory. Donaldson v. United States, supra, 400 U.S. at 529-31, 91 S.Ct. 534. However, under 26 U.S.C. § 7609, added by the Tax Reform Act of 1976 (Pub.L. 94—455, 90 Stat. 1699-1702), taxpayers must be notified by the IRS that a summons has been issued to a third party and they are entitled as of right to stay voluntary compliance and to intervene in enforcement proceedings. Section 7609 applies only to summonses issued after February 28, 1977, and is thus inapplicable to the instant case. Pub.L. 94-455, § 1205(c), as amended by Pub.L. 94-528, § 2(b), 90 Stat. 2483. . In United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964), the Court stated that the IRS “must show that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the Commissioner’s possession, and that the administrative steps required by the Code have been followed.” Id. at 57-58, 85 S.Ct. at 255. . Although it emphasized the interrelated criminal and civil nature of IRS investigations, the Court stated: “The Service does not enjoy inherent authority to summon production of the private papers of citizens. It may exercise only that authority granted by Congress. ’ In § 7602 Congress has bestowed upon the Service the authority to summon production for four purposes only: for ‘ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person" }, { "docid": "11535912", "title": "", "text": "the limited discovery accorded to taxpayers was to provide a procedural mechanism to vindicate the substantive protections outlined in United States v. LaSalle Nat’l Bank, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221. Genser II, 595 F.2d at 152-53. As such, the Court of Appeals intended to supply a limited opening through which the taxpayer could attempt to ascertain whether any evidence used to convict him had been obtained by a summons that had been employed for solely criminal purposes and for which the IRS had institutionally abandoned any civil purpose. Id. at 151-52; see United States v. Garden State Nat’l Bank, 607 F.2d at 71. And quite pertinent to the instant case is the closing language in Genser II, where the Court stated: In the absence of congressional action defining the scope of the IRS’s power to issue summonses, courts must continue to search for the vague boundary between civil and criminal investigation. Genser II, 595 F.2d at 153 (emphasis added). As discussed above, however, there has been just such intervening congressional action with respect to IRS summonses. The “vague boundary between civil and criminal investigation” must no longer be searched out by district courts in the post-TEFRA period, because Section 333(a) of TEFRA both expanded the summons power to include inquiry into criminal violations of the internal revenue laws and substituted a “bright line” test for the “vague boundary” denoted in Genser II. Consequently, the trial court need only be assured that no “Justice Department referral” has taken place, as defined in amended Code Section 7602(c), in order to conclude that the summons is enforceable. In the present case, the agent’s declaration establishes that there has been no such referral. Accordingly, the hypothetical indicia of institutional bad faith showing an abandonment of any civil purpose, which the Genser II discovery procedure was intended to identify, see Garden State, 607 F.2d at 711, are no longer relevant because the IRS may now issue summonses for solely criminal purposes. Thus, due to the congressional action reflected in TEFRA, the Genser II discovery mechanism is no longer necessary or appropriate." }, { "docid": "5419548", "title": "", "text": "L.Ed.2d 221 (1978), as well as the recent pronouncements of the Third Circuit in its opinions in United States v. Genser, 582 F.2d 292 (3d Cir. 1978) (hereinafter Genser I(; and 595 F.2d 146 (3d Cir. 1979) (hereinafter Genser II). In United States v. LaSalle National Bank, a bank refused to comply with IRS summonses which demanded production of files of certain land trusts created for the benefit of the taxpayer. The issue presented to the Court was whether the district court was correct in refusing to enforce the IRS summonses upon its finding that the special agent who issued them “was conducting his investigation solely for the purpose of unearthing evidence of criminal conduct.” 437 U.S. at 299, 98 S.Ct. at 2359. The Court interpreted Donaldson to allow enforcement of a summons which meets these standards: First, the summons must be issued before the Service recommends to the Department of Justice that a criminal prosecution, which reasonably would relate to the subject matter of the summons, be undertaken. Second, the Service at all times must use the summons authority in good-faith pursuit of the Congressionally authorized purposes of § 7602. This second prerequisite requires the Service to meet the Powell standards of good faith. It also requires that the Service not abandon in an institutional sense the pursuit of civil tax determination or collection. Id. at 318, 98 S.Ct. at 2368. In LaSalle, the Court held that the special agent’s bad faith investigation which was for the improper purpose of obtaining evidence of taxpayer’s criminal conduct could not necessarily be imputed to the IRS. Consequently, the LaSalle court found that the respondent bank failed to show sufficient justification to deny enforcement of the summonses. Unlike LaSalle in which a summoned bank refused compliance, in the case before me taxpayer seeks to intervene in order to prevent a summoned party from compliance. A similar third party challenge to a summons was addressed by the Third Circuit in Genser I, where taxpayers appealed from convictions for income tax evasion and conspiracy contending that the convictions were based in part on illegally" }, { "docid": "10973297", "title": "", "text": "shed light on the accuracy of Segmond’s returns. See United States v. Arthur Young & Co., — U.S. -, 104 S.Ct. 1495, 79 L.Ed.2d 826 (1984) (accepting “might throw light” standard of relevance); United States v. Davey, 543 F.2d 996, 999 (2d Cir.1976). Furthermore, the information sought is not already in the IRS’s possession (McQuade Aff., 117). Finally, it appears that the proper steps have been followed (McQuade Aff., ¶¶ 3-5). Thus, I find that the respondent has made out its prima facie case for enforcement of these summonses. The burden therefore devolves upon the taxpayer to show the impropriety of enforcement of these summonses. Segmond’s petition to quash asserts several arguments for non-enforcement of the summonses: 1) that all the summonses-were issued for an improper purpose — to wit, to pursue a criminal investigation; 2) that all the summonses are overbroad or “fishing expeditions”; 3) that compliance with the summons issued to Segmond violates his Fifth Amendment privilege; and, 4) that the summons issued to Segmond should be modified insofar as it seeks documents not in existence. The Court finds no merit to Segmond’s first contention. Although prior to September 4, 1982, a summons could not issue solely for a “criminal purpose” (i.e., to inquire into possible criminal conduct), section 333(a) of TEFRA, 96 Stat. at 622, abolished that “criminal purpose” defense. Section 7602, as amended by TEFRA, now provides, in relevant part: (b) Purpose May Include Inquiry Into Offense. —The purposes for which the Secretary may take any action described in paragraphs (1), (2), (3) of subsection (a) include the purpose of inquiring into any offense connected with the administration or enforcement of the internal revenue laws. The legislative history of the TEFRA amendments makes clear that the permissible inquiry described in subsection (b) includes criminal investigation. It provides as follows: Under prior law, the use of administrative summonses was limited to determination and collection of taxes. The act expands this authority to include the right to issue a summons for the purpose of inquiring into any offense connected with the administration or enforcement of the internal revenue" }, { "docid": "20884232", "title": "", "text": "subpoena, which Procknow contends was tainted by the earlier IRS administrative summonses. Procknow argues that the IRS acted in bad faith because it issued the administrative summonses for the sole purpose of furthering a criminal investigation. The government responds that, because it is undisputed that there was no Department of Justice referral in effect when the summonses were sent, the use of administrative-summons power for criminal investigation was proper. To understand these arguments, some background is necessary. In 1978, the Supreme Court decided that the IRS may not validly issue an administrative summons (also known as a “civil summons”) for the sole purpose of a criminal investigation, even if the criminal investigation had not yet been referred to the Department of Justice for prosecution. United States v. LaSalle Nat’l Bank, 437 U.S. 298, 317, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978). In 1982, Congress amended the statute governing administrative summonses in two ways. First, Congress added a section providing that the IRS may issue summonses for “the purpose of inquiring into any offense connected with the administration or enforcement of the internal revenue laws.” 26 U.S.C. § 7602(b). Second, Congress dictated when the IRS’s administrative-summons authority ends: “No summons may be issued under this title ... with respect to any person if a Justice Department referral is in effect with respect to such person.” Id. § 7602(d)(1). A majority of circuits have held “that the IRS may validly issue a summons pursuant to 26 U.S.C. § 7602, as amended in 1982, for the sole purpose of a criminal investigation,” and the 1982 amendment to § 7602 established a bright-line rule that “the IRS’s authority to issue summonses for the purpose of investigating any offense relating to the tax code is extinguished only when the investigation is referred to the Department of Justice.” Scotty’s Contracting & Stone, Inc. v. United States, 326 F.3d 785, 788-89 (6th Cir.2003) (collecting cases). In 1990, prior to consideration of the issue by many other circuits, we noted: “There is some debate as to whether this ‘solely criminal purpose’ ground discussed in LaSalle survived the 1982" }, { "docid": "13526509", "title": "", "text": "and Merrick should have been granted an opportunity to appear as parties in the summons enforcement proceedings. The judgment of the district court to the contrary was clearly erroneous and must be reversed. The IRS contends that taxpayers should nonetheless be denied relief because the district court accorded taxpayers the “substance” of their right to intervene, but found taxpayers’ claims to be without merit. We find this argument to be of little force. At the show cause hearing on July 28, 1982, and again at the August 19 hearing, the government attorney insisted that the proper course for the trial court was first to rule on the timelines of taxpayers’ motions to intervene: [Intervenors’ counsel]: Now, if [government counsel] wants to do it in the multistage proceeding where first we litigate the right to intervene, then we have the discovery, and if — then we have a hearing on the appropriateness of the Service’s action— [Government counsel]: I certainly would. I certainly would, your Honor. R. 25 (July 28 hearing) (emphasis added). Because they were denied the opportunity to intervene, Wenz and Merrick were unable to raise certain defenses to enforcement of the IRS summonses. In United States v. Kis, 658 F.2d 526 (7th Cir.1981), cert. denied sub nom. Salkin v. United States, 455 U.S. 1018, 102 S.Ct. 1712, 72 L.Ed.2d 135 (1982), this court granted taxpayers certain procedural rights in summons enforcement proceedings. Of paramount importance is the right to serve interrogatories on the IRS with the purpose of ascertaining whether a summons is supported by a proper civil purpose. The right to file “Kis interrogatories,” however, is available only where the taxpayer is a party to the summons enforcement proceedings. Thus, without intervention a taxpayer will be unable to launch a proper defense to summons enforcement. The district court placed Wenz and Merrick in a “Catch-22” situation. On the basis that taxpayers had not adequately met their burden of showing that the IRS lacked a proper institutional purpose for the summonses the court denied their motions to intervene. This, in turn, precluded the taxpayers from discovering whether the" }, { "docid": "18399444", "title": "", "text": "case.’ ” Godwin, supra, at 1212, citing United States v. Kis, 658 F.2d 526, 536 (7th Cir.1981), cert. denied sub nom. Salkin v. United States, 455 U.S. 1018, 102 S.Ct. 1712, 72 L.Ed.2d 135 (1982). In the case at bar, the Government has filed a sworn declaration of Special Agent Morris in support of its enforcement motion. That declaration establishes all of the requisite elements of a prima facie case for enforcement of a third-party record-keeper summons. Accordingly, “[t]he burden therefore falls upon [the taxpayer] to disprove the existence of a valid purpose or to show that enforcement of the summonses would be an abuse of the Court’s process or otherwise would be improper.” Godwin, supra, at 1213. Taxpayer has failed to carry that burden. Taxpayer’s petitions to quash and his “Demand that IRS Summonses be Quashed,” filed April 18, 1984, assert a laundry list of conclusory assertions as to why the summonses should be quashed: (1) That the summonses were issued without jurisdiction; [April 21, 1983 Pet., 11II9 and 10 and April 18, 1984 Demand, ¶1] (2) That the summonses were issued without following the proper administrative procedures; [Pet., 111112-15] (3) That the summonses violate the Privacy Act of 1974, 5 U.S.C. § 552(e)(1), whereby an agency is required to collect information about individuals to the greatest extent practicable directly from the individual [Pet., ¶ 14] and the Freedom of Information Act; [April 18, 1984 Demand, If 5] (4) That the petitioner is immune; [Pet., HH 17 and 18] (5) That the respondent is guilty of bad faith; [Pt., 111119-22] (6) That the respondent has “unclean hands”; [Pet., HH 23-27] (7) That the summons violates petitioner’s First Amendment Rights; [Pet., H 28] (8) That this is a criminal investigation of petitioner. [Pet., H 29] Taxpayer’s contention (HH 1 and 4) that the IRS lacks jurisdiction to issue a summons and that Taxpayer is immune (e.g., not a person liable to pay taxes) is without merit. Section 7602(a)(2) of the Internal Revenue Code specifically provides that “[f]or the purpose of ascertaining the correctness of any return, making a return where" }, { "docid": "21059569", "title": "", "text": "with, the thought processes of each investigator. See United States v. Morgan Guaranty Trust Co., [572 F.2d 36 (2d Cir. 1978)] supra. This obviously is undesirable and unrewarding. As a result, the question whether an investigation has solely criminal purposes must be answered only by an examination of the institutional posture of the IRS. Contrary to the assertion of respondents, this means that those opposing enforcement of a summons do bear the burden to disprove the actual existence of a valid civil tax determination or collection purpose by the Service. After all, the purpose of the good-faith inquiry is to determine whether the agency is honestly pursuing the goals of § 7602 by issuing the summons. [Emphasis supplied.] Without doubt, this burden is a heavy one. Because criminal and civil fraud liabilities are coterminous, the Service rarely will be found to have acted in bad faith by pursuing the former. On the other hand, we cannot abandon this aspect of the good-faith inquiry altogether. We shall not countenance delay in submitting a recommendation to the Justice Department when there is an institutional commitment to make the referral and the Service merely would like to gather additional evidence for the prosecution. Such a delay would be tantamount to the use of the summons authority after the recommendation and would permit the Government to expand its criminal discovery rights. Similarly, the good-faith standard will not permit the IRS to become an information gathering agency for other departments, including the Department of Justice, regardless of the status of criminal cases. At oral argument before us, government counsel indicated that the taxpayer’s burden to show lack of good faith is so great that a district court need seldom if ever hold an evidentiary hearing before enforcing a § 7602 summons. We reject that position, as did the Supreme Court in La Salle (n. 17, n. 19), because there are instances in which such a hearing will clearly be required. Such was the case in United States v. McCarthy, 514 F.2d 368 (3rd Cir. 1975) in which defendants stated with sufficient particularity factual support for" }, { "docid": "21059557", "title": "", "text": "26 U.S.C. § 7609(b)(1) and Federal Civil Rule 24(a). The District Court held an evidentiary hearing in which it heard direct testimony from the special agent investigating DiBiasi and permitted some cross-examination of that witness. However, the District Court terminated that cross-examination before it was completed, concluding that DiVivo lacked standing to mount his challenge to the IRS summons. Before so doing, Judge Blair expressed doubts as to whether the totality of the evidence proffered by counsel for DiVivo would, in any event, constitute a basis for denying enforcement of the summons. 26 U.S.C. § 7609(b)(1) provides that any person named in a summons directed to a “third-party recordkeeper” is entitled to intervene in an action brought to enforce the summons. DiVivo was so named in the summons. He therefore had a right to intervene even though the summons is issued in connection with the DiBiasi investigation. DiVivo’s right of intervention is, however, procedural, not substantive. “[T]he purpose of this procedure [i. e., the procedure provided by what has since become § 7609(b)(1)] is to facilitate the opportunity of the noticee to raise defenses which are already available under the law (either to the noticee or to the third-party witness)[;] * * * these provisions are not intended to expand the substantive rights of these parties.” S.Rep.No.938, 94th Cong., 2d Sess. 370-371, reprinted in, [1976] United States Code Congressional and Administrative News, pp. 2897, 3800; H.R.Rep. 658, 94th Cong., 2d Sess. 309, reprinted in [1976] United States Code Congressional and Administrative News, p. 3205. Thus, § 7609(b)(1) does not displace traditional principles of standing and does not permit a litigant to invoke rights belonging to someone else. Accordingly, DiVivo lacks standing to complain of violations of the Fifth Amendment rights of anyone else resulting from the failure of any IRS agent to warn DiBiasi or anyone else before such person answered questions asked in the course of the DiVivo investigation. However, DiVivo does have standing to question the good faith of the IRS in conducting the DiVivo investigation and in that regard may complain that the District Court should not" } ]

[ { "docid": "21627374", "title": "", "text": "urged that climate change would destroy habitats for animals and rare species of trees and plants on land the trusts owned and conserved. Id., at 139-145. All plaintiffs sought injunctive relief requiring each defendant “to cap its carbon dioxide emissions and then reduce them by a specified percentage each year for at least a decade.” Id., at 110, 153. The District Court dismissed both suits as presenting non-justiciable political questions, citing Baker v. Carr, 369 U. S. 186 (1962), but the Second Circuit reversed, 582 F. 3d 309 (2009). On the threshold questions, the Court of Appeals held that the suits were not barred by the political question doctrine, id., at 332, and that the plaintiffs had adequately alleged Article III standing, id., at 349. Turning to the merits, the Second Circuit held that all plaintiffs had stated a claim under the “federal common law of nuisance.” Id., at 358, 371. For this determination, the court relied dominantly on a series of this Court’s decisions holding that States may maintain suits to abate air and water pollution produced by other States or by out-of-state industry. Id., at 350-351; see, e. g., Illinois v. Milwaukee, 406 U. S. 91, 93, (1972) (Milwaukee I) (recognizing right of Illinois to sue in federal district court to abate discharge of sewage into Lake Michigan). The Court of Appeals further determined that the Clean Air Act did not “displace\" federal common law. In Milwaukee v. Illinois, 451 U. S. 304, 316-319 (1981) (Milwaukee II), this Court held that Congress had displaced the federal common-law right of action recognized in Milwaukee I by adopting amendments to the Clean Water Act, 33 U. S. C. § 1251 et seq. That legislation installed an all-encompassing regulatory program, supervised by an expert administrative agency, to deal comprehensively with interstate water pollution. The legislation itself prohibited the discharge of pollutants into the waters of the United States without a permit from a proper permitting authority. Milwaukee II, 451 U. S., at 310-311 (citing § 1311). At the time of the Second Circuit’s decision, by contrast, EPA had not yet promulgated" } ]

[ { "docid": "18237040", "title": "", "text": "injunction the states have requested would impose substantial costs, yet given the current state of the record, we are not convinced that the preliminary injunction would assure much of a reduction in the risk of the invasive carp establishing themselves in Lake Michigan in the near future. That the balance of harms at this stage of the litigation favors the defendants might be enough by itself to support a conclusion that preliminary relief is not warranted, even though we have concluded that the states have demonstrated a likelihood of success on the merits and a threat of irreparable harm. See Hoosier Energy Rural Elec. Co-op. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir.2009) (describing the relation between the harm prevented by the plaintiffs proposed injunction and the strength of a plaintiffs claim for preliminary relief). Even if one were to conclude that the harms are in equipoise, however, there is a final reason why preliminary injunctive relief is not warranted. As things now stand, the case for judicial intervention is refuted by the fact that the competent federal and state actors are actively pursuing an array of efforts to solve the problem of invasive carp. B 1 While American Electric Power is a case about congressional displacement of federal common law, the Supreme Court took the opportunity to touch generally on the relative competence of courts and expert agencies when it comes to solving complex environmental problems. “It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions,” the Court wrote, explaining further: The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather," }, { "docid": "18237023", "title": "", "text": "are present in the CAWS. We see this as a more general statement of the specific measures we have just outlined. In addition, the states want the defendants to continue using monitoring techniques, including eDNA testing, to search for invasive carp. But the Corps and the other agencies working on this problem are continuing eDNA monitoring efforts. In July 2011, for example, three rounds of positive eDNA testing results led to a four-day hunt for invasive carp (none was found). This request asks for steps already being taken, and so we will not discuss it further. 2 Before we discuss the harm and benefit of the preliminary relief the states request, we must point out an error in the states’ view of how the harms should be weighed. The states say that any harm the defendants might suffer because of the injunction pales “in comparison to the grave and truly irreparable harm that will occur if Asian carp establish a breeding population in the Great Lakes.” But that is not the correct measure of the harm avoided by the states’ proposed injunction. The states assume, without providing much explanation, that preliminary relief would stop invasive carp from ever reaching the Great Lakes. While that may be the effect that a perfectly designed permanent injunction would have, it is not an accurate measure of the harm that would be avoided by the states’ proposed preliminary injunction. At this early point, the question is to what extent would the proposed measures decrease the risk of invasive carp establishing themselves in the Great Lakes between now and when the litigation concludes? Stepping back from the subject matter of this litigation, we note that in addition to the CAWS, the Corps has identified a total of 18 places in Minnesota, Wisconsin, Indiana, Ohio, and New York where invasive carp could move from the Mississippi basin into the Great Lakes. These pathways outside of the CAWS necessarily reduce the likelihood that the states’ preliminary injunction will prevent carp from establishing themselves in the Great Lakes, because the states’ proposed measures say nothing about these alternate" }, { "docid": "18236985", "title": "", "text": "or for the electric barrier project. Apart from requiring the construction of these barriers and giving the Secretary of the Army temporary power to implement various recommendations, Congress has ordered agencies (or, more commonly, informal task forces composed of various executive actors) only to study the invasive species problem and propose solutions. Beyond that, neither the Corps nor any other agency has been empowered actively to regulate the problem of invasive carp, and Congress has not required any agency to establish a single standard to deal with the problem or to take any other action. The narrow delegation that has taken place bears little resemblance to the regulatory power that the EPA wields under the Clean Air Act. Tellingly, Congress has not provided any enforcement mechanism or recourse for any entity or party negatively affected by the carp, and there is certainly no recourse to the courts under the minimal scheme that has been established. The district court was correct that the current state of congressional regulation is much closer to the situation examined in Milwaukee I — and perhaps even less extensive than that — than the regimes reviewed in Milwaukee II or American Electric Power. D With these important preliminary questions out of the way, we are at last ready to consider whether the plaintiff states have presented enough evidence in support of their nuisance claim to establish that they are likely to succeed on the merits. The district court thought that the states failed to demonstrate more than a minimal chance of success. Before this court, the states contend that the district court misunderstood the elements of public nuisance. They point to the district judge’s statement that the tort “contemplates an active — or, at least, an imminent — threat of injury” as evidence of that error. In their view, all they must show to win final relief in a trial on the merits is that there is a “significant threat” that the nuisance will occur. This is a distinction without a difference; the district court correctly understood the law of public nuisance. Nonetheless, for different reasons" }, { "docid": "18237005", "title": "", "text": "made up 97% of the Mississippi’s biomass; and as of 2007 commercial fishers were catching 12 tons of invasive carp each day. These numbers are sobering even apart from the hints that some of the fish may have made it into the CAWS already. In our view, the proper inference to draw from the evidence is that invasive carp are knocking on the door to the Great Lakes. We need not wait to see fish being pulled from the mouth of the Chicago River every day before concluding that a threat of a nuisance exists. It is enough that the threat is substantial and that it may be increasing with each day that passes. Unlike many nuisances that can be ehminated after they are discovered, this one in all likelihood cannot be. The fact that it would be impossible to un-ring the bell in this case is another reason to be more open to a conclusion that the threat is real. In our view, the plaintiff states presented enough evidence to establish a good or even substantial likelihood of success on the merits of their public nuisance claim. Ill Before moving on to the other preliminary injunction factors, there are some particular questions about the APA claim against the Corps that we must address. We turn again to § 702 of the APA, which authorizes a suit by “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. A reviewing court is required to “compel agency action unlawfully withheld or unseasonably delayed,” 5 U.S.C. § 706(1), and to “set aside agency action ... found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” id. § 706(2)(A). The states do not ask us to compel the Corps to take action, at least as far as § 706(1) is concerned. Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004), explains that “a claim under § 706(1) can proceed only" }, { "docid": "18237046", "title": "", "text": "of the defendant. 2 The record in this case leaves no doubt that federal and state agencies, executive officials, and working groups have mounted a tremendous effort to halt the migration of invasive carp. As we have already mentioned, the Aquatic Nuisance Prevention and Control Act of 1990 created the Aquatic Nuisance Species Task Force, which includes among other agencies the National Oceanic and Atmospheric Administration, the U.S. Fish and Wildlife Service, the U.S. Geological Survey, and the EPA. This task force coordinates invasive species issues generally across the country. In addition, during the fall of 2009, 21 federal, state, and local agencies and other entities combined forces to form the Asian Carp Regional Coordinating Committee (the ACRCC), which is designed (as the name suggests) to track and to stop the migration of invasive carp. See generally Asian Carp Control, http://www.asiancarp. org/. The ACRCC counts as members those agencies that comprise the task force, the Corps and the District, the Coast Guard, the U.S. Department of Transportation, the White House Council on Environmental Quality, the Great Lakes Fishery Commission, the City of Chicago, and the state departments of natural resources of all of the plaintiff states, plus Illinois, Indiana, and New York. In order to stop the invasive carp, the ACRCC has developed what it calls the “Asian Carp Control Strategy Framework,” which is now in its third edition. The most recent document lists over 40 collaborative projects that the working group has designed to deal with invasive carp; many of these initiatives are underway or have been completed already. As the ACRCC describes it, the projects fall into eight categories: (1) targeted monitoring assessment activities above and below the electric barrier system, including enhanced monitoring above and below the barriers, electrofishing, and rapid response teams; (2) commercial harvesting and removal actions below the electric barriers (which involves fishing and removal of fish in the Lockport area, where the CAWS connects to the Des Plaines River; creating new markets for the fish; and investigating certification requirements for invasive carp to be sold commercially); (3) electric barrier actions and waterway separation" }, { "docid": "18236973", "title": "", "text": "to think that it implicitly forbids a particular type of relief for a claim outside its scope. For all these reasons, we conclude that the waiver contained in § 702 of the APA subjects the Corps to the plaintiffs’ common-law claims for declaratory and injunctive relief. C The Corps and the District next contend that congressional regulation has displaced as a matter of law the federal common law on which the states rely. The district court rejected this argument on the ground that Congress had not done enough about the threat of invasive carp to qualify for displacement of the federal common-law claim. The defendants say this was error. As they see things, it is enough that Congress has passed legislation to stop the carp and that federal and state agencies are hard at work to address the problem. Because the parties disagree, about the effect of American Electric Power and the way in which the displacement analysis should proceed, we begin with a few important principles. The doctrine of displacement rests on the premise that federal common law is subject to the paramount authority of Congress. New Jersey v. New York, 283 U.S. 336, 348, 51 S.Ct. 478, 75 L.Ed. 1104 (1931); see also American Electric Power, 131 S.Ct. at 2537 (“[I]t is primarily the office of Congress, not the federal courts, to prescribe national policy in areas of special federal interest.”). “ ‘[W]hen Congress addresses a question previously governed by a decision rested on federal common law ... the need for such an unusual exercise of law-making by federal courts disappears.’ ” American Electric Power, 131 S.Ct. at 2537 (quoting Milwaukee II, 451 U.S. at 314,101 S.Ct. 1784). Displacement focuses on the relation between Congress and the federal courts — it is not a doctrine that is concerned with the relation between the federal courts and the executive branch. This is a distinction often neglected by courts, as well as by the parties to this case. Whether federal courts can or should play a role in the face of comprehensive agency action is a critical issue, which we" }, { "docid": "18236993", "title": "", "text": "Village of Gambell, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987); cf. Chathas v. Local 131 Int’l Bhd. of Elec. Workers, 233 F.3d 508, 513 (7th Cir.2000) (“A plaintiff cannot obtain a permanent injunction merely on a showing that he is likely to win when and if the merits are adjudicated.”). In some cases, it is necessary to expedite an ultimate decision, and so courts sometimes consolidate the preliminary injunction hearing with the trial on the merits. See Fed.R.Civ.P. 65(a)(2). But where such consolidation has not taken place — and it has not here — and the question is the propriety of preliminary relief, the Supreme Court has warned against “improperly equating] ‘likelihood of success’ with ‘success’.... ” University of Texas v. Camenisch, 451 U.S. 390, 394, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); see also Meridian Mut. Ins. Co. v. Meridian Ins. Group, Inc., 128 F.3d 1111, 1119 (7th Cir.1997). This is in keeping with the often-repeated rule that the threshold for establishing likelihood of success is low. E.g., Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir.1999); Brunswick Corp. v. Jones, 784 F.2d 271, 275 (7th Cir.1986). We are concerned that the district court here may have lost sight of this distinction. By applying directly the law of public nuisance, the judge seems to have required the plaintiff states actually to show that they were entitled to permanent injunctive relief during the preliminary injunction hearing. The court concluded its discussion of the threat posed by invasive carp, for example, by saying that the states “ha[d] not made a convincing case” that the fish had pushed into the CAWS in significant numbers; and it said that the plaintiffs had not “shown that the fish [are] anywhere near ... establishing a population in Lake Michigan.” Because the states had not yet shown that the threat of nuisance was great enough in the final analysis to warrant an injunction to abate it, the district court seems to have assumed that they had also failed to show enough to obtain preliminary relief. To demonstrate the requisite likelihood" }, { "docid": "18236983", "title": "", "text": "permanent basis (this is the Great Lakes and Mississippi River Interbasin Study or “GLMRIS,” see http:// glmris.anl.gov). In an appropriations bill for fiscal year 2009, Congress provided that “the Secretary of the Army shall implement measures recommended in the efficacy study, or provided in interim reports, authorized under section 3061 of the Water Resources Development Act of 2007 ... with such modifications or emergency measures as the Secretary of the Army determines to be appropriate, to prevent aquatic nuisance species from bypassing the Chicago Sanitary and Ship Canal Dispersal Barrier Project referred to in that section and to prevent aquatic nuisance species from dispersing into the Great Lakes.” Energy and Water Development and Related Agencies Appropriations Act 2010, Pub.L. No. 111-85, § 126, 123 Stat. 2845, 2853 (Oct. 28, 2009). This authority — referred to informally as the Section 126 power — is set to expire on September 30, 2011. Department of Defense and Full-Year Continuing Appropriations Act 2011, Pub.L. No. 112-10, §§ 1101(a)(2), 1104, 1106, 125 Stat. 38, 103 (Apr. 15, 2011). Add to these measures the appropriation of funds so that the Corps can ensure proper operation of the CAWS, e.g., Pub.L. No. 98-63, 97 Stat. 301, 311 (July 30,1983); Pub.L. No. 97-88 § 107, 95 Stat. 1135, 1137 (Dee. 4, 1981); Pub.L. No. 79-525, 60 Stat. 634, 636 (July 24, 1946), and one has the whole of Congress’s efforts to stop invasive species from moving through the CAWS. Recent legislative proposals targeted at halting invasive carp have failed in both Houses. E.g., Close All Routes and Prevent Asian Carp Today Act of 2010 (CARP ACT), H.R. 4472, S. 2946. Although this legislation demonstrates that Congress is aware of the problem of invasive species generally, and carp in particular, it falls far short of the mark set by the Clean Air Act or the Federal Water Pollution Control Act. Congress has not passed any substantive statute that speaks directly to the interstate nuisance about which the states are complaining. Most of the laws that we have summarized appropriate funds to the Corps for routine maintenance of the CAWS" }, { "docid": "18236963", "title": "", "text": "private corporation — as a defendant in a public nuisance lawsuit. See American Electric Power, 131 S.Ct. 2527; North Carolina ex rel. Cooper v. TVA, 615 F.3d 291 (4th Cir.2010); North Carolina ex rel. Cooper v. TVA, 515 F.3d 344 (4th Cir.2008). In fact, out of all public nuisance decisions we have identified from either the Supreme Court or the Courts of Appeals that involve a federal agency as a defendant, none contains a whisper of discussion about whether the claim runs against the United States. In addition to the cases just mentioned, see Middlesex Cnty. Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 4 & n. 3, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981) (claims against the Environmental Protection Agency (EPA) and the Corps); Committee for Consideration of Jones Falls Sewage Sys., 539 F.2d 1006 (claims against the EPA); Massachusetts v. U.S. Veterans Admin., 541 F.2d 119 (1st Cir.1976) (claims against the Veterans Administration). Whether the plaintiffs’ common-law action can proceed against the Corps is a question that may well require attention as this case proceeds. Given the parties’ cursory exposition of the issue and our ultimate conclusion that preliminary relief is not warranted, we find it unnecessary to say more at this point. (We see this as a question relating to the plaintiffs’ ability to state a claim; it does not implicate the court’s jurisdiction, and so there is nothing to prevent our declining to reach it.) For now, we will assume that the states’ federal common-law claim may proceed against all of the defendants. B The defendants argue that two additional obstacles also diminish the states’ likelihood of succeeding on their public nuisance claim. The first concerns the sovereign immunity of the United States. The Corps contends that even if it makes sense to apply public nuisance principles against the United States, the Corps is nevertheless not subject to suit because the United States has not waived its sovereign immunity for this kind of claim. The second argument, which we address below, is that congressional regulation of the invasive carp problem has displaced any role" }, { "docid": "18236947", "title": "", "text": "stage of the case to establish a good or perhaps even a substantial likelihood of harm — that is, a non-trivial chance that the carp will invade Lake Michigan in numbers great enough to constitute a public nuisance. If the invasion comes to pass, there is little doubt that the harm to the plaintiff states would be irreparable. That does not mean, however, that they are automatically entitled to injunctive relief. The defendants, in collaboration with a great number of agencies and experts from the state and federal governments, have mounted a full-scale effort to stop the carp from reaching the Great Lakes, and this group has promised that additional steps will be taken in the near future. This effort diminishes any role that equitable relief would otherwise play. Although this case does not involve the same kind of formal legal regime that caused the Supreme Court to find displacement of the courts’ common-law powers in American Electric Power, on the present state of the record we have something close to it. In light of the active regulatory efforts that are ongoing, we conclude that an interim injunction would only get in the way. We stress, however, that if the agencies slip into somnolence or if the record reveals new information at the permanent injunction stage, this conclusion can be revisited. I To justify a preliminary injunction, the plaintiff states must show that they are likely to succeed on the merits of their claims, that they are likely to suffer irreparable harm without an injunction, that the harm they would suffer without the injunction is greater than the harm that preliminary relief would inflict on the defendants, and that the injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). We will affirm the decision to deny a preliminary injunction unless the district court has abused its discretion. Judge v. Quinn, 612 F.3d 537, 557 (7th Cir.2010). As usual, we review questions of fact for clear error and questions of law de novo. Girl Scouts of" }, { "docid": "18236964", "title": "", "text": "as this case proceeds. Given the parties’ cursory exposition of the issue and our ultimate conclusion that preliminary relief is not warranted, we find it unnecessary to say more at this point. (We see this as a question relating to the plaintiffs’ ability to state a claim; it does not implicate the court’s jurisdiction, and so there is nothing to prevent our declining to reach it.) For now, we will assume that the states’ federal common-law claim may proceed against all of the defendants. B The defendants argue that two additional obstacles also diminish the states’ likelihood of succeeding on their public nuisance claim. The first concerns the sovereign immunity of the United States. The Corps contends that even if it makes sense to apply public nuisance principles against the United States, the Corps is nevertheless not subject to suit because the United States has not waived its sovereign immunity for this kind of claim. The second argument, which we address below, is that congressional regulation of the invasive carp problem has displaced any role for federal common law. “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). The Corps takes the position that there is no such waiver of immunity for lawsuits against the United States that seek declaratory and injunctive relief based on a federal common-law tort. Whether this is correct depends on the interaction between section 702 of the APA and the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b). We begin with a look at the APA. Section 702 reads as follows: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall" }, { "docid": "18236946", "title": "", "text": "relief and moved for a preliminary injunction that would require the defendants to put in place additional physical barriers throughout the CAWS, implement new procedures to stop invasive carp, and expedite a study of how best to separate the Mississippi and Great Lakes watersheds permanently. Other parties intervened to protect their interests — the Grand Traverse Band of Ottawa and Chippewa Indians on the side of the plaintiffs, and the City of Chicago, Wendella Sightseeing Company, and the Coalition to Save Our Waterways as defendants. The district court denied the motion for a preliminary injunction, and the states appealed immediately. See 28 U.S.C. § 1292(a)(1). We conclude that the court’s decision to deny preliminary relief was not an abuse of discretion. Our analysis, however, differs in significant respects from that of the district court, which was persuaded that the plaintiffs had shown only a minimal chance of succeeding on their claims. We are less sanguine about the prospects of keeping the carp at bay. In our view, the plaintiffs presented enough evidence at this preliminary stage of the case to establish a good or perhaps even a substantial likelihood of harm — that is, a non-trivial chance that the carp will invade Lake Michigan in numbers great enough to constitute a public nuisance. If the invasion comes to pass, there is little doubt that the harm to the plaintiff states would be irreparable. That does not mean, however, that they are automatically entitled to injunctive relief. The defendants, in collaboration with a great number of agencies and experts from the state and federal governments, have mounted a full-scale effort to stop the carp from reaching the Great Lakes, and this group has promised that additional steps will be taken in the near future. This effort diminishes any role that equitable relief would otherwise play. Although this case does not involve the same kind of formal legal regime that caused the Supreme Court to find displacement of the courts’ common-law powers in American Electric Power, on the present state of the record we have something close to it. In light of" }, { "docid": "18236948", "title": "", "text": "the active regulatory efforts that are ongoing, we conclude that an interim injunction would only get in the way. We stress, however, that if the agencies slip into somnolence or if the record reveals new information at the permanent injunction stage, this conclusion can be revisited. I To justify a preliminary injunction, the plaintiff states must show that they are likely to succeed on the merits of their claims, that they are likely to suffer irreparable harm without an injunction, that the harm they would suffer without the injunction is greater than the harm that preliminary relief would inflict on the defendants, and that the injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). We will affirm the decision to deny a preliminary injunction unless the district court has abused its discretion. Judge v. Quinn, 612 F.3d 537, 557 (7th Cir.2010). As usual, we review questions of fact for clear error and questions of law de novo. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of United States of Am., Inc., 549 F.3d 1079, 1086-87 (7th Cir.2008). II We begin with the states’ likelihood of succeeding on their common law public nuisance claim. The district court thought that the states had “at best, a very modest likelihood of success.” For the reasons discussed below, we think that the district court underestimated the likely merit of the states’ claim, particularly at this early stage of the case. A The Supreme Court recently reminded us that when it said, “There is no federal general common law,” in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), it did not close the door on federal common law entirely. American Electric Power, 131 S.Ct. at 2535-37. Instead, following Erie, a “keener understanding” of federal common law developed, under which federal courts “fill in ‘statutory interstices,’ and, if necessary, even ‘fashion federal law’ ” in areas “ ‘within national legislative power.’ ” Id. at 2535 (quoting Henry J. Friendly, In Praise of" }, { "docid": "18237006", "title": "", "text": "even substantial likelihood of success on the merits of their public nuisance claim. Ill Before moving on to the other preliminary injunction factors, there are some particular questions about the APA claim against the Corps that we must address. We turn again to § 702 of the APA, which authorizes a suit by “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. A reviewing court is required to “compel agency action unlawfully withheld or unseasonably delayed,” 5 U.S.C. § 706(1), and to “set aside agency action ... found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” id. § 706(2)(A). The states do not ask us to compel the Corps to take action, at least as far as § 706(1) is concerned. Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004), explains that “a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take ”; the states have named no action that they think the agency is required to take. We understand the states’ argument as a request to set aside agency action that they regard as unlawful within the meaning of § 706(2)(A). The obvious starting point is to identify the final Corps action that the states assert has affected them. See 5 U.S.C. § 704; Lujan v. National Wildlife Fed% 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). The states contend that five such actions fit the bill. They say that the Corps’s (1) operation of the CAWS in a manner that will let invasive carp into Lake Michigan, (2) reliance on ineffective electric barriers, (3) use of locks in areas where living and dead carp have been found, (4) denial of the states’ requests for additional relief, and (5) implementation of recommendations contained in the Corps’s third interim report (which is part of" }, { "docid": "18236945", "title": "", "text": "this lawsuit against the U.S. Army Corps of Engineers (the Corps) and the Metropolitan Water Reclamation District of Greater Chicago (the District), which together own and operate the facilities that make up the CAWS. The plaintiff states allege that the Corps and the District are managing the CAWS in a manner that will allow invasive carp to move for the first time into the Great Lakes. The states fear that if the fish establish a sustainable population there, ecological disaster and the collapse of billion-dollar industries that depend on the existing ecosystem will follow. They say that the defendants’ failure to close down parts of the CAWS to avert the crisis creates a grave risk of harm, in violation of the federal common law of public nuisance, see American Electric Power Co., Inc. v. Connecticut, — U.S. -, 131 S.Ct. 2527, 180 L.Ed.2d 435 (2011), and they advance a related claim against the Corps based on the Administrative Procedure Act (APA), 5 U.S.C. § 702. The states asked the district court for declaratory and injunctive relief and moved for a preliminary injunction that would require the defendants to put in place additional physical barriers throughout the CAWS, implement new procedures to stop invasive carp, and expedite a study of how best to separate the Mississippi and Great Lakes watersheds permanently. Other parties intervened to protect their interests — the Grand Traverse Band of Ottawa and Chippewa Indians on the side of the plaintiffs, and the City of Chicago, Wendella Sightseeing Company, and the Coalition to Save Our Waterways as defendants. The district court denied the motion for a preliminary injunction, and the states appealed immediately. See 28 U.S.C. § 1292(a)(1). We conclude that the court’s decision to deny preliminary relief was not an abuse of discretion. Our analysis, however, differs in significant respects from that of the district court, which was persuaded that the plaintiffs had shown only a minimal chance of succeeding on their claims. We are less sanguine about the prospects of keeping the carp at bay. In our view, the plaintiffs presented enough evidence at this preliminary" }, { "docid": "18237045", "title": "", "text": "that the court should not blind itself to other remedies that are available under the law or to other measures that are actively being pursued to solve the problem. Even if legal displacement like that found in American Electric Power does not exist, the practical effect of agency actions might add up to displace as a matter of fact any role that equity might otherwise play. Efforts of other branches of government might be so complete that additional action ordered by a court would risk undermining agency efforts to abate the nuisance. How much the equitable power of the court has been limited by agency action will be a factual question that turns on the quality and quantity of the agency’s (or, as here, agencies’) efforts. This kind of institutional consideration of the court’s relative ability to craft meaningful relief fits naturally in the balance-of-harms analysis. For if an injunction might hamper agency efforts or can improve upon them only slightly, that is all the more reason to conclude that the equities tilt in favor of the defendant. 2 The record in this case leaves no doubt that federal and state agencies, executive officials, and working groups have mounted a tremendous effort to halt the migration of invasive carp. As we have already mentioned, the Aquatic Nuisance Prevention and Control Act of 1990 created the Aquatic Nuisance Species Task Force, which includes among other agencies the National Oceanic and Atmospheric Administration, the U.S. Fish and Wildlife Service, the U.S. Geological Survey, and the EPA. This task force coordinates invasive species issues generally across the country. In addition, during the fall of 2009, 21 federal, state, and local agencies and other entities combined forces to form the Asian Carp Regional Coordinating Committee (the ACRCC), which is designed (as the name suggests) to track and to stop the migration of invasive carp. See generally Asian Carp Control, http://www.asiancarp. org/. The ACRCC counts as members those agencies that comprise the task force, the Corps and the District, the Coast Guard, the U.S. Department of Transportation, the White House Council on Environmental Quality, the" }, { "docid": "18236972", "title": "", "text": "APA to obtain equitable relief. Robinson v. Sherrod, 631 F.3d 839, 841 (7th Cir.2011). If that were not reason enough to reject the Corps’s immunity defense, there is more. By its terms, the FTCA does not apply to any federal common-law tort claim, no matter what relief is sought. As the Corps itself points out, state tort law— not federal law — is the source of substantive liability under the FTCA. See Meyer, 510 U.S. at 478-79, 114 S.Ct. 996; Sobitan v. Glud, 589 F.3d 379, 388-89 (7th Cir. 2009); cf. Smith, 507 U.S. at 198, 113 S.Ct. 1178 (no FTCA claim for tort committed in Antarctica, a sovereignless entity not subject to either state law or the law of a foreign country). The states’ tort claim is based entirely on federal common law, and so the claim would not be cognizable under the FTCA in the first place. Meyer, 510 U.S. at 478, 114 S.Ct. 996. And if the FTCA could never apply to the type of claim advanced, then there is no reason to think that it implicitly forbids a particular type of relief for a claim outside its scope. For all these reasons, we conclude that the waiver contained in § 702 of the APA subjects the Corps to the plaintiffs’ common-law claims for declaratory and injunctive relief. C The Corps and the District next contend that congressional regulation has displaced as a matter of law the federal common law on which the states rely. The district court rejected this argument on the ground that Congress had not done enough about the threat of invasive carp to qualify for displacement of the federal common-law claim. The defendants say this was error. As they see things, it is enough that Congress has passed legislation to stop the carp and that federal and state agencies are hard at work to address the problem. Because the parties disagree, about the effect of American Electric Power and the way in which the displacement analysis should proceed, we begin with a few important principles. The doctrine of displacement rests on the premise" }, { "docid": "18237010", "title": "", "text": "Two types of plaintiffs are given a right of review in § 702: those suffering a “legal wrong,” and those “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” In their briefs in this court, the states have not pointed to a single statute against which one might judge the Corps’s behavior. (This is not surprising, given the dearth of pertinent federal legislation that we discussed in connection with displacement.) The Corps submits that this means that the states have no APA claim; the states respond their APA claim is “free-standing.” Neither answer is satisfactory. We know that the states have not alleged that the Corps’s actions failed to comply with some statutory provision, and so they must instead be asserting that they have suffered a “legal wrong” because of those actions. The only legal wrong that comes to mind, however, is the infliction of a common-law public nuisance. See Lujan, 497 U.S. at 883, 110 S.Ct. 3177 (distinguishing between legal wrongs and the failure of an agency to comply with a statutory provision); Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 137, 59 S.Ct. 366, 83 L.Ed. 543 (1939) (explaining that “legal wrong” includes tortious invasions and interferences with property and contractual rights). See generally Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk. U.L.Rev. 881, 887-90 (1983) (discussing the use of the term “legal wrong” in the APA and explaining that it “could only mean a wrong already cognizable in the courts”). The result is that the states’ APA claim against the Corps sinks or swims (so to speak) with its public nuisance theory. Because they are indistinguishable, we address only the latter from this point on. IY To satisfy the second threshold requirement for preliminary injunctive relief, the states must establish that irreparable harm is likely without an injunction. Judge v. Quinn, 612 F.3d 537, 557 (7th Cir.2010). In the district court’s view, this issue was the same as the question whether the states had shown a likelihood of success on" }, { "docid": "18236994", "title": "", "text": "Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir.1999); Brunswick Corp. v. Jones, 784 F.2d 271, 275 (7th Cir.1986). We are concerned that the district court here may have lost sight of this distinction. By applying directly the law of public nuisance, the judge seems to have required the plaintiff states actually to show that they were entitled to permanent injunctive relief during the preliminary injunction hearing. The court concluded its discussion of the threat posed by invasive carp, for example, by saying that the states “ha[d] not made a convincing case” that the fish had pushed into the CAWS in significant numbers; and it said that the plaintiffs had not “shown that the fish [are] anywhere near ... establishing a population in Lake Michigan.” Because the states had not yet shown that the threat of nuisance was great enough in the final analysis to warrant an injunction to abate it, the district court seems to have assumed that they had also failed to show enough to obtain preliminary relief. To demonstrate the requisite likelihood of success, however, the states needed only to present a claim plausible enough that (if the other preliminary injunction factors cut in their favor) the entry of a preliminary injunction would be an appropriate step. The preliminary injunction, after all, is often seen as a way to maintain the status quo until merits issues can be resolved at trial. By moving too quickly to the underlying merits, the district court required too much of the plaintiffs and, correspondingly, gave too little weight to the strength of their claim at this stage of the case. 3 We also question the inferences drawn by the district court from the facts that it so carefully found after evaluating five days of hearings, which included the testimony of expert witnesses and volumes of written materials on complex scientific and engineering issues. There is very little to criticize about the court’s factual findings themselves. For instance, the district judge’s decision to admit the expert testimony of Dr. David Lodge, who has been hired by the Corps and who testified for" }, { "docid": "18237052", "title": "", "text": "an “Asian carp czar,” who is charged with leading the administration’s effort to stop invasive carp. Recently, the administration announced plans to install a high-intensity water cannon that would deter fish by firing huge, underwater blasts of water across Chicago Ship and Sanitary Canal. It is our understanding that the defendants and the agencies we have just discussed are actively pursuing the measures that we have just described. In. addition, where the defendants have represented that future steps will be taken — whether a disco screen, the water gun, operating the electric barriers at optimal settings, considering the possibility of block nets in the CAWS, completing and implementing GLMRIS in phases, continuing to monitor aggressively with traditional and eDNA techniques, or any of the other actions we have highlighted — we have no reason at this point to assume that this work will not be done. Whatever happens, the plaintiff states will continue to have a seat at the table as these and future plans are made and implemented. We conclude that on this record, there is nothing that any preliminary injunction from the court could add that would protect the Great Lakes from invasive carp while this suit is being adjudicated any better than the elaborate measures we have just described. This tips the balance of harms decisively in favor of the defendants. VI We take very seriously the threat posed by the invasive species of carp that have come to dominate parts of the Mississippi River basin and now stand at the border of one of the most precious freshwater ecosystems in the world. Amy threat to the irreplaceable natural resources on which we all depend demands the most diligent attention of government. As the case proceeds, the district judge should bear in mind that the risk of harm here depends upon both the probability of the harm and the magnitude of the problem that would result. In the end, however, the question whether the federal courts can offer meaningful equitable relief — either preliminary or permanent — to help abate a public nuisance in the face of" } ]

[ { "docid": "22222549", "title": "", "text": "would cause. The place where the conspiracy was formed was unknown to the grand jurors (and might be so in many cases), but it w:as intended to be executed in a number of States of the Union, and yet, under, the rigor of the contention of appellants, the conspirators could not be tried in any of them. In other words, not the place of the activities of the conspiracy and where it incurs guilt, but the place of its formation, which no one may know or can find out, is the place of the jurisdiction of its trial. And what compels this? It is answered: The.Sixth Amendment of the Constitution of the United States. We have determined otherwise in Hyde v. United States, ante, p. 347. The Constitution of the United States is not intended as a facility for crime. It is intended to prevent oppression, and its letter and its spirit are satisfied if where a criminal purpose is executed the criminal purpose be punished. It is there that its victims are sought and defrauded. It is there that its perpetrators should be brought to the bar of justice for their acts; not for the mere con-céption of them, but for the actual execution of them. The venue of his trial is thus made by the criminal himself, not determined by reasons or interests which may be adverse to him and used to his injury. Orders dismissing petitions affirmed. Mr. Justice Holmes, dissenting. These are appeals from orders denying writs of. habeas corpus on the same state of facts, which can be set out in a few words. The petitioners were taken into custody in California for removal to Omaha, in the District of Nebraska, for trial before the District Court there, and severally petitioned for habeas corpus on the ground that the indictment showed that the Omaha court had no jurisdiction of the alleged offence. The indictment is under Rev. Stat.- §5440,. amended.by Act of May 17, 1879., c. 8, 21 Stat. 4, for conspiring to commit an offense against the United States, namely, to send and receive" } ]

[ { "docid": "1833888", "title": "", "text": "charged to have been committed in El Dorado county, Ark. So, not only is the venue laid in the district where the conspiracy is claimed to have been formed, but also where one of the overt acts is alleged to have been committed. The Supreme Court has held that venue in a conspiracy ease may be laid in the district where an overt act is committed. Hyde and Schneider v. United States, 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614; Brown v. Elliott, 225 U. S. 392, 32 S. Ct. 812, 56 L. Ed. 1136. This court likewise. Harrington et al. v. United States, 267 F. 97. Indeed, in Brown v. Elliott, 225 U. S. 392, 32 S. Ct. 812, 56 L. Ed. 1136, the Supreme Court says that the exact place where the conspiracy was formed need not be alleged; that it may be unknown. The more fact that defendants might have conspired in a number of places does not defeat prosecution in one of the places within the jurisdiction of the District Court. If so, multiplicity of places of conspiring would result in immunity from prosecution. The Supreme Court said in Hyde and Schneider v. United States, 225 U. S. 347, 363, 364, 32 S. Ct. 793, 801 (56 L. Ed. 1114, Ann. Cas. 1914A, 614): “We see no reason why a constructive presence should not be assigned to conspirators as well as tp other criminals; and we certainly cannot assent to the proposition that it is not competent for Congress to define what shall constitute the offense of conspiracy or when it shall be considered complete and do with it as with other crimes which are commenced in one place and continued in another.” The challenge to the indictment that the overt acts are not charged to have been committed by defendant himself is not sound. The statute is perfectly plain on this proposition, and it is not necessary that defendant himself should commit the overt act. . If the conspiracy is established, and any one or more of" }, { "docid": "8493659", "title": "", "text": "another district. That is to say, they take the position that the alleged conspiracy was limited to a restraint of competition in buying and selling on the spot markets and included no joint agreement or understanding as respects sales in the Mid-Western area. * * * Conspiracies under the Sherman Act are on ‘the common-law footing’; they are not dependent on the ‘doing of any act other than the act of conspiring’ as a condition of liability. Nash v. United States, 229 U.S. [373], at page 378, 33 S.Ct. [780], 57 L.Ed. 1232. But since there was no evidence that the conspiracy was formed within the Western District of Wisconsin, the trial court was without jurisdiction unless some act pursuant to the conspiracy took place there. United States v. Trenton Potteries Co., 273 U.S. [392], pages 402-403, 47 S.Ct. [377], 71 L.Ed. 700, 50 A.L.R. 989, and cases cited.” The court concluded: “In sum, the conspiracy contemplated and embraced, at least by clear implication, sales to jobbers and consumers in the Mid-Western area at the enhanced prices. The making of those sales supplied part of the ‘continuous cooperation’ necessary to keep the conspiracy alive. See United States v. Kissel, 218 U.S. 601, 607, 31 S.Ct. 124, 54 L.Ed. 1168. Hence, sales by any one of the respondents in the Mid-Western area bound all. For a conspiracy is a partnership in crime; and an ‘overt act of one partner may be the act of all without any new agreement specifically directed to that act.’ United States v. Kissel, supra, page 608 of 218 U.S., 31 S.Ct. [124], 54 L.Ed. 1168.” A more complete exposition of the reason for such a conclusion appears in Hyde v. United States, 225 U.S. 347, on pages 362, 363, 364, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas. 1914A, 614 and 365, where the court discussed the problem at some length. See also Brown v. Elliott, 225 U.S. 392, 32 S.Ct. 812, 56 L.Ed. 1136; 28 U.S.C.A. § 42 and 103. Here, in view of the facts previously referred to concerning the Brillo, McKinzie, Hunter Packing Company" }, { "docid": "11950318", "title": "", "text": "of a conspiracy may be shown by inference or circumstantial evidence and any substantial evidence of knowledge and participation in a conspiracy will justify a verdict of guilty. Here there was no material variance between the charges in the indictment and the proof, and there was substantial evidence to support the verdict of the jury. The request of the defendant for a peremptory instruction of not guilty was properly refused. Beland v. United States, 5 Cir., 100 F.2d 289; Crumpton v. United States, 138 U.S. 361,. 11 S.Ct. 355, 34 L.Ed..958; Riddle et al. v. United States, 5 Cir., 279 F. 216. The appellant further complains that the government failed to prove that the offenses charged were committed within the jurisdiction of the trial court. This case came up from the Newnan Division of the Northern District of Georgia, and it is contended that certain of the overt acts set out in the indictment were committed in another division. The other overt acts, however, were committed in the New-nan Division where the defendant was tried and convicted. The extent of the sentence, one year and one day, did not exceed that which might lawfully have been imposed .under either count and the verdict must stand if the evidence was sufficient to support the conviction under either count. A conspirator may be tried either at the place where the conspiracy was entered into or where the overt act was committed. Venue as alleged was clearly shown by the evidence. Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas.1914A, 614; Smith v. United States, 9 Cir., 92 F.2d 460; Diehl v. United States, 8 Cir., 98 F.2d 545; Abrams v. United States, 250 U.S. 616, 619, 40 S.Ct. 17, 63 L.Ed. 1173. The judgment is affirmed." }, { "docid": "6056362", "title": "", "text": "said: “The gravamen of the offense here is the conspiracy. * * * Although by the statute something more than the common-law definition of a conspiracy is necessary to complete the offense, to wit, some act done to effect the object of the conspiracy, it remains true that the combination of minds in an unlawful purpose is the foundation of the offense.” This case was cited with approval in Pettibone v. United States, 1893, 148 U.S. 197, 202, 13 S.Ct. 542, 545, 37 L.Ed. 419, where it was said: “The confederacy to commit the offense is the gist of the criminality under this section, although, to complete it, some act to effect the object of the conspiracy is needed.” In United States v. Britton, 108 U.S. 199, 205, 2 S.Ct. 531, 534, 27 L.Ed. 698, the Court had said: “This offence does not consist of both the conspiracy and the acts done to effect the object of the conspiracy, but of the conspiracy alone. The provision of the statute, that there must be an act done to effect the object of the conspiracy, merely affords a locus poenitentiae. * * * ” In Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas.1914 A, 614, the Court seemed to shift its position. It held that venue under the Constitution (Art. Ill, sec. 2, clause 3, and the Fourth Amendment) could be grounded on the fact that an overt act, innocent in and of itself, occurred within the district, although none of the defendants had there been present, and although the conspiring took place elsewhere. In so holding, the Court, referring to the statute, said at page 359 of 225 U.S., at page 799 of 32 S.Ct.: “The conspiracy * * * cannot alone constitute the offense. It needs the addition of the overt act. Such act is something more, therefore, than evidence of a conspiracy. It constitutes the execution or part execution of the conspiracy. * * * ” However, in Joplin Mercantile Company v. United States, 236 U.S. 531, 536, 35 S.Ct. 291, 293, 59" }, { "docid": "23294019", "title": "", "text": "of the conspiracy, plans to change the ransom money into other money. There is a specific allegation of the venue of the offense charged in the indictment against McDonald. Appellee states in his brief that: “Appellee should be tried, if at all, in Florida where, in fact, indictments were lodged against him, and where in fact, if Appellee did in fact conspire, the conspiracy took place and the acts took place. The conspiracy, if it in fact existed, and the acts, if they were in furtherance of a conspiracy, took place in Florida. There is not a scintilla of evidence of any thing alleged or proved having been in anywise connected with Minnesota, but, on the contrary, the Government has, in its proof, nailed the conspiracy and acts, if they existed, to Florida and Cuba.” The basis for this statement apparently is that the overt acts with which appellee was charged had their inception in Florida. But appellee was not charged with the offense of receiving or exchanging ransom money. He was charged with having conspired with others in the state of Minnesota to violate 18 U.S.C.A. § 408a. The specific acts which the indictment charged that he committed in Florida and Cuba were overt acts committed in furtherance of the conspiracy. While it is necessary to allege and prove an overt act, the Overt act does not constitute the offense. Laska v. United States, 10 Cir., 82 F.2d 672, 674. The gist of the offense of a conspiracy is an agreement among the conspirators to commit an offense, attended by an overt act by one or more of the conspirators to effect the object of the conspiracy, United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. -, and the venue may be laid either where the conspiracy was formed or where any overt act in furtherance thereof was committed. Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas.1914A, 614; Chew v. United States, 8 Cir., 9 F.2d 348; Sloan v. United States, 8 Cir., 31 F.2d 902; Yenkichi Ito v. United" }, { "docid": "8493660", "title": "", "text": "enhanced prices. The making of those sales supplied part of the ‘continuous cooperation’ necessary to keep the conspiracy alive. See United States v. Kissel, 218 U.S. 601, 607, 31 S.Ct. 124, 54 L.Ed. 1168. Hence, sales by any one of the respondents in the Mid-Western area bound all. For a conspiracy is a partnership in crime; and an ‘overt act of one partner may be the act of all without any new agreement specifically directed to that act.’ United States v. Kissel, supra, page 608 of 218 U.S., 31 S.Ct. [124], 54 L.Ed. 1168.” A more complete exposition of the reason for such a conclusion appears in Hyde v. United States, 225 U.S. 347, on pages 362, 363, 364, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas. 1914A, 614 and 365, where the court discussed the problem at some length. See also Brown v. Elliott, 225 U.S. 392, 32 S.Ct. 812, 56 L.Ed. 1136; 28 U.S.C.A. § 42 and 103. Here, in view of the facts previously referred to concerning the Brillo, McKinzie, Hunter Packing Company and Ralston-Purina incidents and of defendants’ practice in their retail stores within this district, all partaking of the inherent vice I find in defendants’ activities, acts in pursuance of the illegal undertaking oc curred within the district and this court has jurisdiction. In view of what I have said, it follows that all defendants are guilty in manner and form as charged in the information. I reach this conclusion after careful objective consideration of all facts presented to me. What I have said is not intended to be a scholarly exposition of the law but it is, I hope, sufficient indication of the method I have used and the reasoning I have employed to reach my conclusion. In using the word defendants generally I shall include all defendants named in the information, except Robert B. Smith, who is now deceased. Davidson said that the profits of “Acco are those of the Tea Company and are to be absorbed by the units in which Acco is operating.”" }, { "docid": "23386517", "title": "", "text": "where the unlawful agreement was made or where any overt act took place. Hyde v. Shine, 199 U.S. 62, 25 S.Ct. 760, 50 L.Ed. 90; Haas v. Henkel, 216 U.S. 462, 30 S. Ct. 249, 54 L.Ed. 569, 17 Ann.Cas. 1112; Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas.1914A, 614; Grayson v. United States, 6 Cir., 272 F. 553; Grigg v. Bolton, 9 Cir., 53 F.2d 158. The statute is often invoked to establish jurisdiction over crimes which involve the mailing of a letter from one district to another, as in the presentation of a fraudulent claim to a government official. Thus in Bridgeman v. United States, 9 Cir., 140 F, 577 and United States v. Downey, D.C., 257 F. 366, it was held that the offense was commenced and therefore triable where the letter was mailed; and in Benson v. Henkel, 198 U.S. 1, 25 S.Ct. 569, 49 L.Ed. 919 and In re Palliser, 136 U.S. 257, 10 S.Ct. 1034, 34 L.Ed. 514, the offense was held cognizable where the letter was received. The principle on which the jurisdiction is established over crimes which begin in one district and end in another is enunciated in United States v. Lombardo, 241 U.S. 73, 77, 36 S.Ct. 508, 510, 60 L.Ed. 897, as follows: “Undoubtedly where a crime consists of distinct parts which have different localities the whole may be tried where any part can be proved to have been done; or where it may be said there is a continuously moving act, commencing with the offender and hence ultimately consummated through him, as the mailing of a letter; or where there is a confederation in purpose between two or more persons, its execution being by acts elsewhere, as in conspiracy.” On the other hand, a crime may lack continuity of performance and may consist of a single act which occurs at one time and at one place in which only it may be tried, although preparations for its commission may take place elsewhere. Such are offenses which involve the filing of formal documents, such" }, { "docid": "23386516", "title": "", "text": "West Virginia. The court was of the opinion that the indictment charged offenses begun in one district and completed in another, and therefore fell within the purview of Section 42 of the Judicial Code, 28 U.S.C.A. • § 103, which provides that when any offense against the United States is begun in one judicial district and completed in another, it shall be deemed to have been committed in either, and may be tried and punished in either district in the same manner as if' it had been actually and wholly committed therein.- This statute is particularly applicable to the jurisdiction over crimes which consist of two or more distinct elements or acts that may be committed in different districts, such as the crime of conspiracy which, under the federal statute, consists not only of the unlawful agreement,, but also of the commission of an overt act in furtherance thereof. Indeed the statute was originally a part of the statute with reference to conspiracy. It is established that jurisdiction of the crime of conspiracy lies either where the unlawful agreement was made or where any overt act took place. Hyde v. Shine, 199 U.S. 62, 25 S.Ct. 760, 50 L.Ed. 90; Haas v. Henkel, 216 U.S. 462, 30 S. Ct. 249, 54 L.Ed. 569, 17 Ann.Cas. 1112; Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas.1914A, 614; Grayson v. United States, 6 Cir., 272 F. 553; Grigg v. Bolton, 9 Cir., 53 F.2d 158. The statute is often invoked to establish jurisdiction over crimes which involve the mailing of a letter from one district to another, as in the presentation of a fraudulent claim to a government official. Thus in Bridgeman v. United States, 9 Cir., 140 F, 577 and United States v. Downey, D.C., 257 F. 366, it was held that the offense was commenced and therefore triable where the letter was mailed; and in Benson v. Henkel, 198 U.S. 1, 25 S.Ct. 569, 49 L.Ed. 919 and In re Palliser, 136 U.S. 257, 10 S.Ct. 1034, 34 L.Ed. 514, the offense was held cognizable" }, { "docid": "1833887", "title": "", "text": "violate section 215 of the Criminal Code of the United States, further says: “And among said violations to commit the divers offenses charged against'the said defendants in the preceding counts of this indictment; and the said defendants did thereafter do divers acts to effect the object of said unlawful and felonious conspiracy, to wit, not only the several acts of placing and causing to be placed letters, circular letters, units and certificates of interest, advertisements, publications, and market letters, in the post office of the United States at El Dorado, Ark., and unlawfully causing them to be sent and delivered by the post office establishment of the United States as charged in the preceding counts of this indictment, but by numerous acts of preparing said letters, circular letters, units or certificates of interest, market letters, advertisements, and publications, for mailing in the post office at El Dorado, Ark., to be sent and delivered by the post office establishment of the United States, mentioned in the first count of the indictment.” The first overt act is charged to have been committed in El Dorado county, Ark. So, not only is the venue laid in the district where the conspiracy is claimed to have been formed, but also where one of the overt acts is alleged to have been committed. The Supreme Court has held that venue in a conspiracy ease may be laid in the district where an overt act is committed. Hyde and Schneider v. United States, 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614; Brown v. Elliott, 225 U. S. 392, 32 S. Ct. 812, 56 L. Ed. 1136. This court likewise. Harrington et al. v. United States, 267 F. 97. Indeed, in Brown v. Elliott, 225 U. S. 392, 32 S. Ct. 812, 56 L. Ed. 1136, the Supreme Court says that the exact place where the conspiracy was formed need not be alleged; that it may be unknown. The more fact that defendants might have conspired in a number of places does not defeat prosecution in one of the" }, { "docid": "23692254", "title": "", "text": "must give way in interpretation to th<„ particular statute. In State v. Wall, 218 Iowa 171, 254 NW. 71, 73, the court stated: “There is in vogue a general rule of interpretation that, as between conflicting statutes, the earlier must yield to the later, and the generic to the specific.” See also Bruno v. United States, 1 Cir., 289 F. 649; United States v. Yuginovich, 256 U.S. 450, 463, 41 S.Ct. 551, 65 L.Ed. 1043. The conviction of the defendants under indictment No. 14578 is set aside. Indictment No. 14577 charges these defendants, with others, with conspiracy to violate the Narcotic Drugs Import and Export Act by importing and bringing into the United States narcotic drugs,.and by assisting in so doing contrary to law, and by fraudulently and unlawfully receiving and concealing the same. One of the overt acts charged is that certain co-defendants did bring into the Port of Boston, in the District of Massachusetts, and within the jurisdiction of the court, the narcotic drugs described in the indictment. It appears from the record that the defendants resided in New York, and the evidence does not show that they were ever in Massachusetts, but it is clear that they were parties to the conspiracy. The conspiracy was planned in New York and was to be carried out by various acts in different jurisdictions. The act of bringing the drugs into the Port of Boston, whether or not they were to be landed there, was an act in execution of the conspiracy. This gave the District Court of Massachusetts jurisdiction. Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas.1914A, 614; Hicks v. United States, 8 Cir., 275 F. 405. The fact that the defendants remained in New York and did not come into the District of Massachusetts did not prevent their conviction for acts done in Massachusetts through the conspiracy. “The constitutional provisions as to venue in Article 3, § 2, and in the Sixth Amendment, require trial where ‘the crime shall have been committed,’ not' where the accused was when the crime was committed.”" }, { "docid": "6528590", "title": "", "text": "in this contention. The telephone from Honolulu to Los Angeles brings the conspiracy both within the Territory of Hawaii and the Southern District of California. An overt act is more than evidence of a conspiracy. It is a part of the conspiracy itself, and where, as here, it is alleged as occurring in the Territory and in California, it is sufficient to make it an offense within the statute, even though the indictment had stated that the place in which the conspiracy was formed is unknown. Hyde v. U. S., 225 U.S. 347, 360, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas.1914A, 614; Brown v. Elliott, 225 U.S. 392, 400, 32 S.Ct. 812, 56 L.Ed. 1136. A conspirator may be tried either at the place where the conspiracy is hatched or where the overt act is committed. Hyde v. U. S., supra, 225 U.S. 347, 360, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas.1914A, 614; Grigg v. Bolton (C.C.A.9) 53 F.(2d) 158, 159. In this case an overt act was committed in California by petitioner telephoning there from Honolulu. It is not necessary that a defendant be physically within a jurisdiction to do a criminal act there. In Hyde v. U. S., supra, the defendant was held indictable for conspiracy in the District of Columbia on the strength of his conspiring in California to commit a crime and by way of overt act, mailing a letter from California to the District of Columbia. 28 U.S.C.A. § 103 provides: “When any offense against the United States is begun in one judicial district and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district, in the same manner as if it had been actually and wholly committed therein.” Appellant contends that the making of the telephone call from Honolulu to Los Angeles is too innocent an act to be an “overt act” under the conspiracy statute. There is no merit to this argument. Any act without criminal purpose is usually innocent. If the telephone call was in" }, { "docid": "15548642", "title": "", "text": "Hobbs Act, (18 U.S.C. § 1951), defendants’ attack is three- pronged. First, noting that they were charged with conspiracy to obtain money unlawfully from companies belonging to CATRALA, defendants argue that under general conspiracy principles there was no evidence upon which to rest jurisdiction to conduct a trial on the charges in the Northern District of Illinois. Conspiracy is a substantive federal criminal offense. 18 U.S.C. § 371. Generally, proper venue for a prosecution of the substantive crime of conspiracy lies in the district where the agreement was entered into, Hyde v. Shine, 199 U.S. 62, 25 S.Ct. 760, 50 L.Ed. 90 (1905), or at the place where an overt act to effect the object of one of the conspirators was performed. Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114 (1912). Pointing out that the evidence in this case showed neither an agreement among the defendants in the Northern District of Illinois, nor an overt act in furtherance of the conspiracy in that district, defendants argue that prosecution of a Hobbs Act conspiracy offense in the Northern District of Illinois was based on improper venue. We do not agree. Federal district courts have exclusive jurisdiction of all offenses against the United States. 18 U.S.C. § 3231. Venue for the prosecution of federal offenses is established by Rule 18, F.R.Crim.P. in the district in which such offense is committed. Rule 18 thus reflects Article III, Section 2, Paragraph 3, of the Constitution, which mandates that criminal trials be “held in the State where the said Crimes shall have been committed.” The Sixth Amendment similarly guarantees a criminal defendant “the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Venue for a Hobbs Act prosecution properly lies in any district where commerce is affected. United States v. Floyd, 228 F.2d 913, 918 (7th Cir.), cert. denied, 351 U.S. 938, 76 S.Ct. 835, 100 L.Ed. 1466 (1956). See also: 18 U.S.C. § 3237. In this case the evidence showed that the federal offense of" }, { "docid": "9750510", "title": "", "text": "States (C..C. A. 8) 146 Fed. 121, 126, 76 C. C. A. 547. However, section 42 of the Judicial Code (36 Stat. 11 [Comp. St. § 1024]) provides that, when an offense against the United States is begun iir one judicial district and completed in another it shall be deemed to have been committed in either, and may be inquired of, tried, determined, and punished in either district, as if it had been actually and wholly committed therein. As stated in Burton v. United States, 202 U. S. 344, 387, 26 Sup. Ct. 688, 701 (50 L. Ed. 1057, 6 Ann. Cas. '392): “The constitutional requirement is that the crime shall be tried in the state 'and district where committéd, not necessarily in the state or district ' where the party committing it happened to he at the time.” In other words, “there may be a constructive presence in a státe, distinct from a personal presence, by which a crime” committed in another state “may be consummated,” and SO' be punishable there. Hyde v. United States, 225 U. S. 347, 362, 32 Sup. Ct. 793, 56 E. Ed. 1114, Ann. Cas. 1914A, 614. As said in Brown v. Elliott, 225 U. S. 392, 402, 32 Sup. Ct. 812, 816 (56 E. Ed. 1136), the law and spirit of the Constitution “are satisfied if, where a criminal purpose is executed, the criminal purpose be punished,” and in accordance with the principle (which antedated the statute abbve cited) that an offense begun in one district and completed in another may be prosecuted in either district, prosecutions for conspiracy may be maintained either in the district in which the conspiracy is entered into or in the district in which an act was done to effectuate the object of the conspiracy. Hyde v. United States, supra; Brown.v. Elliott, supra; Shea v. United States (C. C. A. 6) 236 Fed. 97, 101, 149 C. C. A. 307, and cases there cited. Whether under the principles above referred to, the facts of the case may, on another trial, so appear, by virtue of the contract of" }, { "docid": "23559474", "title": "", "text": "that district, although he was not present therein. Salinger v. Loisel, 265 U. S. 224, 44 S. Ct. 519, 68 L. Ed. 989; Hyde v. United States, 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614; Burton v. United States, 202 U. S. 344, 26 S. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 362; United States v. Steinberg (C. C. A. 2) 62 F.(2d) 77. In United States v. Steinberg, supra, the •Circuit Court of Appeals of the Second- Circuit held that one who had mailed a letter in Canada, which was delivered in the United .States, was subject to prosecution under section 338, title 18, USCA, in the United States. We have held that, whore a scheme to defraud or to obtain money by false pretenses was charged, when such scheme is criminally participated in by more than one individual, it ■constitutes of itself a conspiracy, and all who ■engage therein are equally guilty. Cochran v. United States (C. C. A. 8) 41 F.(2d) 193; Busch v. United States (C. C. A. 8) 52 F. (2d) 79; Chambers v. United States (C. C. A. 8) 237 F. 513. If defendant’s associates knowingly participated in this alleged scheme, then they were guilty of a conspiracy, and all those participating in the furtherance of the scheme, whether within the United States or without, would be equally guilty. Ford v. United States, 273 U. S. 593, 47 S. Ct. 531, 71 L. Ed. 793. But if, on the other hand, defendant’s aides were innocent, then the defendant would still be guilty of the commission of a crime within the jurisdiction of the lower court if while remaining in London he procured the commission of a crime through these innocent agents. The acts constituting the gist of the offense took place within the jurisdiction of the lower court. The demurrer and motion were properly overruled. IV. Complaint is made of the court’s rulings as to the qualification of jurors. (1) Two jurors on their voir dire testified that they had made contributions to the" }, { "docid": "15592719", "title": "", "text": "of those conspiracies to have been committed in the Eastern District of Virginia as well as in the Eastern District of North Carolina. All, therefore, charge the crime of conspiracy to have been committed in both districts, in either of which it might have been prosecuted and punished. Brown v. Elliott, 225 U.S. 392, 400, 32 S.Ct. 812, 56 L.Ed. 1136; Hyde v. United States, 225 U.S. 347, 363-366, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas.1914A, 614. It is the “partnership in criminal purposes” which constitutes the crime (United States v. Kassel, 218 U.S. 601, 608, 31 S.Ct. 124, 54 L.Ed. 1168), and this partnership exists and is punishable wherever an overt act is committed by one of the conspirators in furtherance thereof, as well as in the district in which the conspiracy was entered into. As was said by the Supreme Court in Hyde v. United States, supra, at pages 365-366 of 225 U.S., 32 S.Ct. 793, 801, 56 L.Ed. 1114, Ann.Cas.1914A, 614, quoting with approval the statement of Marcy, J. in People v. Mather, 4 Wend.(N.Y.) 229, 261, 21 Am.Dec. 122; “If conspirators enter into the illegal agreement in one county, the crime is perpetrated there, and they may be immediately prosecuted; but the proceedings against them must be in that county. If they go into another county to execute their plans of mischief, and there commit an overt act, they may be punished in the latter county without any evidence of an express renewal of their agreement. The law considers that wherever they act, there they renew, or perhaps to speak more properly, they continue, their agreement, and this agreement is renewed or continued as to all whenever any one of them does an act in furtherance of their common design. In this respect, conspiracy resembles treason in England, when directed against the life of the King. The crime consists in imagining the death of the King. In contemplation of law, the crime is committed wherever the traitor is and furnishes proof of his wicked intention, by the exhibition of any overt act.” (Italics ours.) Nor are" }, { "docid": "8332305", "title": "", "text": "removes any •apprehension one might otherwise have as to his guilty participation in the commission of the fraud. Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas.1914A, 614. He was'the instigator of the whole transaction, was present at its inception, a real participant therein, and a beneficiary thereof. So the jury could have well found, and did find from all the •evidence. 4. The charge that counts one and two are for the same alleged crime, is without merit. They state two separate •and distinct fact bases, — one, that the loan was obtained on the misrepresentation that the proceeds would be used for reconstruction purposes, when they were to' be used for other unrelated purposes, and second, the concealment of the fact that a prior loan was unpaid. One was a negative act. The other was a positive act. They did not even concern the same facts. As to the violation of separate statutes, since the ■same evidence was not required for the proof of each crime, both charges may be upheld, even though both crimes grow out •of the same general transaction. (Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153; Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306.) S. As to the contention that the crime was committed, if at all, in New Jersey, it is sufficient to observe that the evidence amply supports a finding that the conspiracy and the overt acts, as well as the charges of concealment, and the making of the false statement, all took place in New York. Jurisdiction of the conspiracy count lay in the Federal courts of both states. 6. The Supreme Court long ago held contrary to defendant’s contention that he may not be convicted of a conspiracy to commit acts which he is found guilty of having committed under other counts of the indictment. Said the Court, “At all events, the liability for conspiracy is not taken away by its success, — that is, by the accomplishment of the substantive offense at which the conspiracy" }, { "docid": "23692255", "title": "", "text": "that the defendants resided in New York, and the evidence does not show that they were ever in Massachusetts, but it is clear that they were parties to the conspiracy. The conspiracy was planned in New York and was to be carried out by various acts in different jurisdictions. The act of bringing the drugs into the Port of Boston, whether or not they were to be landed there, was an act in execution of the conspiracy. This gave the District Court of Massachusetts jurisdiction. Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas.1914A, 614; Hicks v. United States, 8 Cir., 275 F. 405. The fact that the defendants remained in New York and did not come into the District of Massachusetts did not prevent their conviction for acts done in Massachusetts through the conspiracy. “The constitutional provisions as to venue in Article 3, § 2, and in the Sixth Amendment, require trial where ‘the crime shall have been committed,’ not' where the accused was when the crime was committed.” Cooper v. United States, 5 Cir., 91 F.2d 195, 198, 199. The object of the conspiracy was to import and bring into the United States opium, which was absolutely prohibited. The act of one of the conspirators is the act of all the conspirators, and when the opium was .brought within the territorial waters of the United States, the overt act which gave this court jurisdiction had been committed. The fact that the opium was brought ashore by the officers of the United States makes no difference. Jung Quey v. United States, 9 Cir., 222 F. 766. The conviction under indictment No. 14577 is without error under the facts and the law in this case and is affirmed. The judgments of the District Court under Indictments No. 14571 and No. 14577 are affirmed. The verdict and judgments under Indictment No. 14578 are set aside, and the case is remanded to the District Court for further proceedings not inconsistent with this opinion." }, { "docid": "6528589", "title": "", "text": "* * * 7. That on or about the 27th day of August, 1936, defendant Grace E. Smith telephoned defendant Ann Boyd from Honolulu, Territory of Hawaii to Los Angeles, California.” The petitioner, Grace E. Smith, was never, at any time material to this case, present in Southern California. Subsequent to the filing of the indictment she was arrested on a fugitive warrant in Hawaii. The government then applied for a bench warrant, the purpose of which was to remove her to California. Hearing was had and the warrant issued. It is by virtue of this bench warrant that the petitioner is restrained of her liberty. Her petition for habeas corpus is based on the claims (1) that the indictment does not state an offense, particularly not one within the Southern District of California ; and (2) • that she has not been identified as the Grace E. Smith mentioned in the indictment. 1. The objection to the indictment is, first, that it fails to state where the conspiracy was formed. There is no merit in this contention. The telephone from Honolulu to Los Angeles brings the conspiracy both within the Territory of Hawaii and the Southern District of California. An overt act is more than evidence of a conspiracy. It is a part of the conspiracy itself, and where, as here, it is alleged as occurring in the Territory and in California, it is sufficient to make it an offense within the statute, even though the indictment had stated that the place in which the conspiracy was formed is unknown. Hyde v. U. S., 225 U.S. 347, 360, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas.1914A, 614; Brown v. Elliott, 225 U.S. 392, 400, 32 S.Ct. 812, 56 L.Ed. 1136. A conspirator may be tried either at the place where the conspiracy is hatched or where the overt act is committed. Hyde v. U. S., supra, 225 U.S. 347, 360, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas.1914A, 614; Grigg v. Bolton (C.C.A.9) 53 F.(2d) 158, 159. In this case an overt act was committed in California by petitioner telephoning there" }, { "docid": "23294020", "title": "", "text": "conspired with others in the state of Minnesota to violate 18 U.S.C.A. § 408a. The specific acts which the indictment charged that he committed in Florida and Cuba were overt acts committed in furtherance of the conspiracy. While it is necessary to allege and prove an overt act, the Overt act does not constitute the offense. Laska v. United States, 10 Cir., 82 F.2d 672, 674. The gist of the offense of a conspiracy is an agreement among the conspirators to commit an offense, attended by an overt act by one or more of the conspirators to effect the object of the conspiracy, United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. -, and the venue may be laid either where the conspiracy was formed or where any overt act in furtherance thereof was committed. Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas.1914A, 614; Chew v. United States, 8 Cir., 9 F.2d 348; Sloan v. United States, 8 Cir., 31 F.2d 902; Yenkichi Ito v. United States, 9 Cir., 64 F.2d 73, 76; Shea v. United States, 6 Cir., 236 F. 97, 101. The court in whose district the conspiracy was formed has jurisdiction to try the defendants, even if no single overt act was committed within its boundary. Brown v. Elliott, 225 U.S. 392, 402, 32 S.Ct. 812, 56 L.Ed. 1136; Hyde v. United States, supra; Hyde v. Shine, 199 U.S. 62, 76, 25 S.Ct. 760, 60 L.Ed. 90; Shea v. United States, supra; United States v. Wells, 2 Cir., 192 F. 870. The conspiracy charged in the indictment had its inception in the agreement to kidnap Bremer but it did not end with the payment of the ransom money and his release. The exchange of the ransom money for other currency was as much a part of the conspiracy as was the kidnaping of Bremer. Laska v. United States, supra; Skelly v. United States, 10 Cir., 76 F.2d 483; Lew Moy v. United States, 8 Cir., 237 F. 50. The object of this type of conspiracy is to get" }, { "docid": "15592718", "title": "", "text": "733, 80 S.E. 14; United States v. Swift (D.C.) 186 F. 1002, 1015; 16 C.J. 268; note, 92 Am.St.Rep. 135. See, also, Ex parte Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118, and In re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658. It is clear, therefore, that something other than the difference in the periods during which the defendants are alleged to have conspired must be relied upon to bar the pleas of former jeopardy. And the fact that the indictment in the case at bar charges that the defendants conspired in the Eastern District of Virginia, whereas the North Carolina indictments charge the conspiring in the Eastern District of that state, does not show necessarily that the crimes charged are not the same. As heretofore pointed out, the indictment before us charges overt acts in furtherance of the conspiracy to have been committed in the Eastern District of North Carolina as well as in the. Eastern District of Virginia, and the North Carolina indictments charge overt acts in furtherance of those conspiracies to have been committed in the Eastern District of Virginia as well as in the Eastern District of North Carolina. All, therefore, charge the crime of conspiracy to have been committed in both districts, in either of which it might have been prosecuted and punished. Brown v. Elliott, 225 U.S. 392, 400, 32 S.Ct. 812, 56 L.Ed. 1136; Hyde v. United States, 225 U.S. 347, 363-366, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas.1914A, 614. It is the “partnership in criminal purposes” which constitutes the crime (United States v. Kassel, 218 U.S. 601, 608, 31 S.Ct. 124, 54 L.Ed. 1168), and this partnership exists and is punishable wherever an overt act is committed by one of the conspirators in furtherance thereof, as well as in the district in which the conspiracy was entered into. As was said by the Supreme Court in Hyde v. United States, supra, at pages 365-366 of 225 U.S., 32 S.Ct. 793, 801, 56 L.Ed. 1114, Ann.Cas.1914A, 614, quoting with approval the statement of Marcy, J. in People v." } ]

[ { "docid": "5543026", "title": "", "text": "OPINION PER CURIAM: In, this appeal from a decision of the Tax Court reported at 58 T.C. 836 the issue is whether certain contractual agreements entered into by the taxpayer with others for the use of equipment, constituted conditional sales contracts or leases. If the transactions were bona fide leases and the taxpayer remained the owner of the equipment, then it was entitled to a deduction for depreciation, Int.Rev.Code of 1954 § 167, and an investment credit, Int.Rev.Code of 1954 § 38, both of which the taxpayer had taken. It would not have obtained those tax advantages were the agreements in question contracts of sale or conditional sales. The issue is essentially a factual one. As the Tax Court pointed out, “[t]he factual issue presented here is an extremely close one, making the decision difficult.” That court resolved the contest in favor of the taxpayer, holding that the agreements were leases. Weighing the same evidence we might well have decided the case differently notwithstanding the decision in Lockhart Leasing Co. v. United States, 446 F.2d 269 (10th Cir. 1971), upon which the Tax Court so heavily relied. But our standard of review requires us to affirm unless the decision is “clearly erroneous.” Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Brumley-Donaldson Co. v. Commissioner, 443 F.2d 501, 503 n.3 (9th Cir. 1971); Made Rite Investment Co. v. Commissioner, 357 F.2d 647, 648 (9th Cir. 1966); Kessmar Construction Co. v. Commissioner, 336 F.2d 865, 867 (9th Cir. 1964). We cannot find that the decision of the Tax Court is clearly erroneous. Judgment affirmed." } ]

[ { "docid": "1749837", "title": "", "text": "a period of only six months and if exercised the purchase price would be identical to the total payments under the 15 year term of the lease since the installment payments were to be the same as the rental payments with prior rental payments being credited on the purchase price. Further, under the agreement, the State was entitled to all rents due from tenants occupying the premises after commencement of the lease; was to assume the cost of insuring the premises against loss or destruction; and would indemnify the owner against any and all taxes, rates, assessments and levies. After considering the language of the agreement and all of the surrounding circumstances, the Tax Court stated, at page 742: “We conclude from all the evidence that the lease-option agreement was in reality an installment sale contract and consequently that petitioners’ holding period of the property terminated not later than January 1, 1952.” The narrow question which we consider on this appeal is whether such a finding is clearly erroneous. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); J. Strickland & Company v. United States, 352 F.2d 1016 (6 Cir. 1965), cert. denied 384 U.S. 950, 86 S.Ct. 1571, 16 L.Ed.2d 547 (1966). We must note that it is well established that the Tax Court may look past the form of a transaction and to the substantive intent of the parties as disclosed by the total circumstances. Commissioner of Internal Revenue v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981 (1945); Estate of Berry v. Commissioner of Internal Revenue, 372 F.2d 476 (6 Cir. 1967). Having reviewed all of the facts before the Tax Court, and primarily because the agreement contained numerous indicia of being an installment sale contract with an option inserted in an attempt to give taxpayer and his associates a long-term capital gain, we must conclude that the Tax Court’s finding is not clearly erroneous. There are two other issues which taxpayer alleges were erroneously decided by the Tax Court. The Tax Court stated issues two" }, { "docid": "3346753", "title": "", "text": "treat that amount as rent. Catherine G. Armston, 12 T.C. 539, 548 (1949), aff’d sub nom. W. H. Armston Co., Inc. v. Comm’r of Internal Revenue, 188 F.2d 531, 533 (5th Cir. 1951). Where there is an absence of arm’s length dealing, the Commissioner may inquire into what constitutes reasonable rental to determine whether the amount paid exceeds what would have been paid had the parties dealt at arm’s length. Roland P. Place, 17 T.C. 199, 203 (1951), affirmed, 199 F.2d 373 (6th Cir. 1952), cert. denied, 344 U.S. 927, 73 S.Ct. 490, 97 L.Ed. 714 (1953). See also, J. J. Kirk, Inc., 34 T.C. 130 (1960), affirmed 289 F.2d 935 (6th Cir. 1961). The issue is whether the involved parties negotiated the sale-leaseback agreement at arm’s length. This is an issue of fact, and the Tax Court’s findings can be reversed only if found to be clearly erroneous. Comm’r of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960). We consider that the Court’s findings are not clearly erroneous, and agree with the following from the Tax Court’s decision: “The dominant motives of both Virgil and ABC throughout the negotiations which culminated in the sale-leaseback agreements are crystal clear. Virgil sought to obtain ABC stock and an executive position with the company and ABC sought to acquire Virgil’s 15 food service companies. In light of these facts, we think it abundantly clear that the sale-leaseback agreements were designed solely to fulfill the personal objectives of Virgil. There was no legitimate business purpose for petitioners to undertake the sale and subsequent leaseback of their tangible assets other than to satisfy Virgil’s purpose of shifting income from petitioners to Gladco in order to induce ABC to go through with the deal. Thus, this is not a case where a corporatioh entered a sale-leaseback arrangement in order to generate needed cash for business expansion. To the contrary, all the money received by petitioners upon the sale of tlieir tangible assets, together with substantial additional amounts, was used to purchase ABC stock, thus serving ho meaningful business" }, { "docid": "3346752", "title": "", "text": "of the Internal Revenue Code of 1954, 26 U.S.C. § 162(a) (3), which reads in pertinent part as follows: “(a) There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including— ***#*■* (3) rentals or other payments required to be made as a condition to the continued use or possession, for purposes of the trade or business, of property to which the taxpayer has not taken or is not taking title or in which he has no equity.” The Commissioner, however, disallowed petitioners’ claimed deductions to the extent that they exceeded $53,592.79 and $1,906.59, respectively. He based his determination on the conclusions that the sale-leaseback agreement was not negotiated at arm’s length between adverse parties and that the claimed rentals did not represent the fair rental value of the assets leased. The fact that the parties designated, and one party became obligated to pay to the other, a specified amount as rent does not bind the government to treat that amount as rent. Catherine G. Armston, 12 T.C. 539, 548 (1949), aff’d sub nom. W. H. Armston Co., Inc. v. Comm’r of Internal Revenue, 188 F.2d 531, 533 (5th Cir. 1951). Where there is an absence of arm’s length dealing, the Commissioner may inquire into what constitutes reasonable rental to determine whether the amount paid exceeds what would have been paid had the parties dealt at arm’s length. Roland P. Place, 17 T.C. 199, 203 (1951), affirmed, 199 F.2d 373 (6th Cir. 1952), cert. denied, 344 U.S. 927, 73 S.Ct. 490, 97 L.Ed. 714 (1953). See also, J. J. Kirk, Inc., 34 T.C. 130 (1960), affirmed 289 F.2d 935 (6th Cir. 1961). The issue is whether the involved parties negotiated the sale-leaseback agreement at arm’s length. This is an issue of fact, and the Tax Court’s findings can be reversed only if found to be clearly erroneous. Comm’r of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960). We consider that the Court’s findings are not clearly" }, { "docid": "22296498", "title": "", "text": "involved, more than $738,000.00. We commend counsel’s diligence but not their editorial judgment. They could have said everything that they do say in about half as many pages. Almost always, when we grant permission to file an oversized brief, we have cause to regret having done so. We said in Los Angeles Extension Co. v. Commissioner of Internal Revenue, supra, 315 F.2d at 3, a case which, like this one, involved the trade or business issue: It is rare indeed that one will find any precedent value in applying the decision of one case to the facts of another case. At the most, other cases decided by the courts on this subject may be persuasive or suggestive of the approach of the courts to cases where the facts may be somewhat similar. For this reason, we do not burden this opinion with an analysis of the cases that counsel cite. None announces any principle that would require a reversal here. Moreover, it would serve no useful purpose to repeat here the facts which are detailed in the Tax Court’s memorandum decision. As to certain properties, the Tax Court found that they were held as investments and for the production of income rather than primarily for sale to customers in the ordinary course of trade or business, thus to that extent finding in favor of Rockwell. As to the others, the Tax Court found in favor of the Commissioner. If we were the Tax Court, we might have made different findings as to some or all of the properties. However, it is not our function to retry the case. We are not persuaded that the Tax Court’s findings are clearly erroneous. II. The Burden of Proof. A. What the burden is. Rule 32 of the Rules of Practice of the Tax Court (now Rule 142(a), see 26 U.S.C.A. § 7453 (1975 Supp.)) places the burden of proof on Rockwell. See Helvering v. Taylor, 1935, 293 U.S. 507, 515, 55 S.Ct. 287, 79 L.Ed. 623. This burden is a burden of persuasion; it requires Rockwell to show the merits of his claim" }, { "docid": "6200887", "title": "", "text": "opinion, taxpayers’ realty was not “held primarily for sale in the ordinary course of [their] trade or business.” While we have been directed to no ease construing the relevant language of § 543(b)(3), the above-quoted passage is nearly identical to that of § 1221(1) (definition of “capital assets”) — “property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business” — -and we can divine no reason to construe the thrust of these passages differently. We will, therefore, turn to § 1221(1) cases for guidance. As a question of fact arguably mixed with law, our review of a lower Court’s finding with respect to the nature of a taxpayer’s holdings under § 1221(1) is subject to the restraint of the “clearly erroneous” rule. See Fed.R.Civ.P. 52(a); Int. Rev.Code of 1954, § 7482(a); Malat v. Riddell, 383 U.S. 569, 572, 86 S.Ct. 1030, 16 L.Ed.2d 102 (1966); Rockwell v. Commissioner, 512 F.2d 882, 884 (9th Cir.), cert. denied, 423 U.S. 1015, 96 S.Ct. 448, 46 L.Ed.2d 386 (1975); Estate of Freeland v. Commissioner, 393 F.2d 573, 583 (9th Cir.), cert. denied, 393 U.S. 845, 89 S.Ct. 132, 21 L.Ed.2d 117 (1968); Austin v. Commissioner, 263 F.2d 460, 461-62 (9th Cir. 1959) (decided under § 117(a)(1) of the 1939 Code, now § 1221); Los Angeles Extension Co. v. United States, 315 F.2d 1, 2-3 (9th Cir. 1963) (same); Bistline v. United States, 260 F.2d 77, 78 (9th Cir. 1958) (same); United States v. Beard, 260 F.2d 81, 82 (9th Cir. 1958) (same). See also Commissioner v. Duberstein, 363 U.S. 278, 289-91, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); United States v. United States Gypsum Co., 333 U.S. 364, 394-95, 68 S.Ct. 525, 92 L.Ed. 746 (1948); United States v. Hart, 546 F.2d 798, 801-02 (9th Cir. 1976) (en banc), cert. denied sub nom. Robles v. United States, 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 571 (1977); Lundgren v. Freeman, 307 F.2d 104, 115 (9th Cir. 1962). See generally 5A J. Moore, Moore’s Federal Practice ¶ 52.03[1], at 2613-17, 2655-57 (2d ed. 1975); id." }, { "docid": "4323711", "title": "", "text": "and granting a further extension. A similar agreement was upheld in United States v. Mortell, 248 F.Supp. 706 (N.D.Ill.1965). We hold that the 1968 assessments were not beyond the limitations period. B. Capital Asset The question here is whether Tract 2347 was “property held . . . primarily for sale to customers in the ordinary course of trade or business” within the meaning of 26 U.S.C. § 1221(1). The taxpayers contend they bought the property and held it for investment and rental purposes. The Commissioner asserts the taxpayers were in the business of buying raw land, developing it, and selling it for profit, and that their activities with regard to Tract 2347 were part of this business. In this circuit, a finding that a particular asset was or was not a capital asset is a finding of fact and must be upheld' unless clearly erroneous. Rule 52(a), Fed.R. Civ.P.; Parkside, Inc. v. Commissioner, 571 F.2d 1092 (9th Cir. 1977);. Los Angeles Extension Co. v. United States, 315 F.2d 1 (9th Cir. 1963). The case law has developed a series of factors to be evaluated in determining whether land is held for sale in the ordinary course of business. These factors are: The length of holding of the property, the nature of the acquisition of the property, the frequency and continuity of sales over an extended period of time, the nature and the extent of the taxpayer’s business, the activity of the seller about the property, and the extent and substan-tiality of the transactions. Parkside, supra at 1096 quoting Los Ange-les Extension Co., 315 F.2d at 3. Applying these factors to the facts here, we can not say that the tax court’s finding was clearly erroneous. The taxpayers spent considerable time, money and effort in subdividing and improving the land; the sales were reasonably constant over time; there was active promotion of the site, which the taxpayers did not discourage; and the short-term leases which were granted were consistent with a desire to sell the property. Further, the taxpayers had been involved in a prior land development operation, thus, their activities" }, { "docid": "12249935", "title": "", "text": "might superficially argue or cynically comment, therefore, that the Tax Court compromisingly decided the issue down the middle. b. The difference in the Commissioner’s and the estate’s respective results is attributable primarily to the disparities in the estimates of oil reserves and in the per barrel values. c. Two of the Commissioner’s geologist witnesses had appeared on behalf of Mr. Goodall in 1953 before the Colorado Public Utilities Commission and had presented some of their same material in connection with an application for a pipe line to the Little Beaver. Generally, value is a fact to be found and usually is not to be established on the basis of fixed rules or formulas. Hamm v. Commissioner of Internal Revenue, 325 F.2d 934, 937-938 (8 Cir. 1963), cert. denied 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046; Arc Realty Co. v. Commissioner of Internal Revenue, 295 F.2d 98, 103 (8 Cir. 1961). See Churder v. United States, 387 F.2d 825. (8 Cir. 1968). The clearly erroneous standard and its accompanying rules apply, as has been noted by the Supreme Court and several times by this court, to findings of fact made by the Tax Court. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed. 2d 1218 (1960); Loco Realty Co. v. Commissioner of Internal Revenue, 306 F.2d 207, 209 (8 Cir. 1962); Idol v. Commissioner of Internal Revenue, 319 F.2d 647, 651 (8 Cir. 1963); Banks v. Commissioner of Internal Revenue, 322 F.2d 530, 537 (8 Cir. 1963); Wells-Lee v. Commissioner of Internal Revenue, 360 F.2d 665, 668 (8 Cir. 1966). Judge Learned Hand observed that the powers of review of a court of appeals “are very straitly limited upon all issues of fact * * * and that limitation is particularly narrow when the issue is one of value”. Sisto Financial Corp. v. Commissioner of Internal Revenue, 149 F.2d 268, 269 (2 Cir. 1945). We have joined in this observation. Hamm v. Commissioner of Internal Revenue, supra, p. 938 of 325 F.2d; Arc Realty Co. v. Commissioner of Internal Revenue, supra, p. 103" }, { "docid": "6200889", "title": "", "text": "152.03[5], A factual finding by the trial court will ordinarily not be reversed unless the reviewing court concludes that such a finding is clear ly erroneous, or it is definitely and firmly convinced that, upon an examination of the entire record, a mistake has been committed. See United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Allen v. United States, 541 F.2d 786, 788 (9th Cir. 1976); Collman v. Commissioner, 511 F.2d 1263, 1267 (9th Cir. 1975); Bistline, supra; Beard, supra. Analysis under § 1221(1) has focussed, inter alia, upon the following factors: the length of holding of the property, the nature of the acquisition of the property, the frequency and continuity of sales over an extended period of time, the nature and the extent of the taxpayer’s business, the activity of the seller about the property, and the extent and substantiality of the transactions. Los Angeles Extension Co., 315 F.2d at 3. See Estate of Freeland, 393 F.2d at 582-83; Biedenharn Realty Co. v. United States, 526 F.2d 409, 415 & n. 22 (5th Cir. 1976), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1977). See also Malat v. Riddell, 383 U.S. 569, 86 S.Ct. 1030, 16 L.Ed.2d 102 (1966). That sales take place in the course of a “liquidation” neither automatically compels nor forecloses a finding that property was held primarily for sale in the ordinary course of a trade or business. Ehrman v. Commissioner, 120 F.2d 607, 610 (9th Cir.), cert. denied, 314 U.S. 668, 62 S.Ct. 129, 86 L.Ed. 534 (1941); Commissioner v. Boeing, 106 F.2d 305, 309 (9th Cir.), cert. denied, 308 U.S. 619, 60 S.Ct. 295, 84 L.Ed. 517 (1939); Huxford v. United States, 441 F.2d 1371, 1375-76 & n. 4 (5th Cir. 1971). See Jersey Land & Dev. Corp. v. United States, 539 F.2d 311, 315 (3d Cir. 1976). Based upon factors such as the means by which taxpayers acquired the property in issue, the prior holding of those properties for rent, the “as is,” piecemeal sale of the realty, and" }, { "docid": "1749838", "title": "", "text": "363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); J. Strickland & Company v. United States, 352 F.2d 1016 (6 Cir. 1965), cert. denied 384 U.S. 950, 86 S.Ct. 1571, 16 L.Ed.2d 547 (1966). We must note that it is well established that the Tax Court may look past the form of a transaction and to the substantive intent of the parties as disclosed by the total circumstances. Commissioner of Internal Revenue v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981 (1945); Estate of Berry v. Commissioner of Internal Revenue, 372 F.2d 476 (6 Cir. 1967). Having reviewed all of the facts before the Tax Court, and primarily because the agreement contained numerous indicia of being an installment sale contract with an option inserted in an attempt to give taxpayer and his associates a long-term capital gain, we must conclude that the Tax Court’s finding is not clearly erroneous. There are two other issues which taxpayer alleges were erroneously decided by the Tax Court. The Tax Court stated issues two and three to be: “(2) whether petitioners’ share of the ordinary distributable losses from the trust that sold the hotel property should be reduced because of the non-deductibility of taxes, attorneys’ fees, and accountants’ fees; (3) whether petitioners are entitled to a deduction for travel and other expenses * * * for the year 1952.” 44 T.C. at page 732. Each of the foregoing issues was determined adversely to taxpayer for failure to sustain his burden of proof; however, the Tax Court noted, with respect to issue 2, that “[w]e do not know why respondent [the Commissioner] disallowed petitioners their pro-rata share of these expenses.” And with respect to issue three, there is no dispute but that taxpayer’s books and records were accidentally destroyed or lost by a trustee. We believe that in the interest of justice the Tax Court should grant taxpayer a hearing for the purpose of reconstructing the figures necessary for a redetermination of issues 2 and 3 and these two issues will be remanded to the Tax Court for its further" }, { "docid": "13335225", "title": "", "text": "because we cannot hold on this record that the findings of the Tax Court are clearly erroneous. Rule 52(a), Fed.R. Civ.P. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, (1960); Estate of Frank Duttenhofer v. 289-291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 Commissioner, 49 T.C. 200, 204 (1967), aff’d, 410 F.2d 302 (6th Cir. 1969). Compare, In re Fisk’s Estate, 203 F.2d 358, 359 (6th Cir. 1953). Although we affirm, we do so unenthusiastically. The opinion of the Tax Court contains language critical of the “entirely passive role” of the executrix, 32 CCH Tax Ct. Mem. at 426, which we believe is unjustified. It was stipulated that the executrix was a housewife who had no income of her own. She had little or no business experience and it was further stipulated that she relied entirely on the attorney for the estate, a kinsman of her deceased husband, to file the federal estate tax return. Counsel for the executrix states as follows in his reply brief: “[DJiscussions were had [between the executrix and him] as to what had to be done and when. It would be unrealistic to assume that there was no discussion between the Executrix and the attorney as to what had to be done and when, how much money would have to be set aside for this tax and that tax, etc.” (Emphasis in original.) Further, counsel for the executrix states that after his illness he went to the office of the Estate and Gift Tax Group of the Cleveland District of the Internal Revenue Service (IRS), presumably prior to August 28, 1968, and orally requested an extension of time to file the estate tax return. Counsel states that an IRS employee informed him that the penalty set forth in the statute was seldom enforced where the return was filed within a reasonable time and there was some reason for delay. Counsel did not make the application for extension of time in writing as required by Treas. Reg. § 1.6081-1 (b) (1), and there is no verification in the record of any aspect of his conversation with" }, { "docid": "3835592", "title": "", "text": "on the transaction. This is simply not the law and it is not the Code’s method of measuring gain on a transaction of this kind. Wessel v. United States, 49 F.2d 137, 139 (8 Cir. 1931). The value of the sublicense, as distinguished from its cost and adjusted basis, was wholly immaterial. We see nothing at all arbitrary about the statutory scheme or about the Commissioner’s application of the statutes which would lead to the invocation and application of cases such as Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623 (1935), urged upon us by Research. What the Commissioner has done here, in contradistinction to the situation in the Taylor case, 293 U.S. at 514-515, 55 S.Ct. 287, 79 L.Ed. 623, is not arbitrary or irrational but is in aecord with the theory and concept of the statutes. Having thus concluded that the exchange was a taxable transaction and that Research’s adjusted income tax basis in the sublicense was zero, then, as we have noted, the fair market value of the 136,500 shares received measures the gain to Research. The Commissioner and the Tax Court found that that stock at the time of the exchange on February 5, 1962, had a fair market value of $1 per share. Valuation of stock for tax purposes is a question of fact. Arc Realty Co. v. Commissioner of Internal Revenue, 295 F.2d 98, 103 (8 Cir. 1961); Hamm v. Commissioner of Internal Revenue, 325 F.2d 934, 938 (8 Cir. 1963), cert. denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046; United States v. Righter, 400 F.2d 344, 351 (8 Cir. 1968). This being so, the “clearly erroneous” standard of review, Rule 52(a), Fed.R.Civ.P., has application to the Tax Court’s finding. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Idol v. Commissioner of Internal Revenue, 319 F.2d 647, 651 (8 Cir. 1963). A review of the record convinces us that the evidence in the aggregate is supportive of the Tax Court’s valuation finding and, indeed, is overwhelmingly so, and that" }, { "docid": "11161483", "title": "", "text": "your answer should probably be, “I don’t know, and no one else in town can tell yon.” ’ Comment, ‘Capital Gains: Dealer v. Investor Problems,’ 35 Taxes 804, 806 (1957).” 3B Mertens Law of Federal Income Taxation, Zimet & Weiss Rev., Sec. 22.138, n. 69, pp. 623, 624. White v. Commigsioner, 5 Cir., 1949, 172 F.2d 629, 630. Thomas v. Commissioner, 5 Cir. 1958, 254 F 2d 233, 236; Kaltreider v. Commissioner, 3 Cir., 1958, 255 F.2d 833, 839; Oliver v. Commissioner, 4 Cir., 1943, 138 F.2d 910. . Whether a taxpayer is an “investor” or a “dealer” in real estate is of course important in determining the nature of his business, but even a dealer may hold particular properties for investment rather than for resale, so the admission that one is a dealer is not contradicted by a claim of capital gains. See 3B Mertens, Zimet & Weiss Rev., Law of Federal Income Taxation, Secs. 22.138, 22.139. . Whether “reasonable men could reach differing conclusions on the issue,” Commissioner of Internal Revenue v. Duberstein, 1960. 363 U.S. 278, 291, 80 S.Ct 1190, 1199, 4 L.Ed.2d 1218; could “such conclusions could with reason bo reached on the evidence”? United States v. Kaiser, 1960, 363 U.S. 299, 305, 80 S.Ct. 1204. 1207. 4 L.Ed.2d 1233; “the requirement is for probative facts capable of supporting, with reason, the conclusion expressed in the verdict,” Myers v. Reading Company, 1947, 331 U.S. 477, 485. 67 S.Ct. 1334, 1339, 91 L.Ed. 1615. WISDOM, Circuit Judge (dissenting). The issue in this case for the jury to decide was whether the taxpayers were entitled to treat their profits from the sales of the lots in question as capital gains or as ordinary income — an issue that would seem more suitable for decision by a court than by a jury. In determining whether, in a tax sense, subdivided real estate is held for sale to customers in the ordinary course of business, proper elements for the jury to consider, among many other relevant elements, include: (1) the intent of the taxpayer; (2) the history and use of" }, { "docid": "22296497", "title": "", "text": "of holdings (3) and (4) depend upon the correctness of holdings (1) and (2). We affirm. I. The Tax Court’s Findings. Whether property is held primarily for sale in the ordinary course of trade or business is a question of fact. Estate of Freeland v. Commissioner of Internal Revenue, 9 Cir., 1968, 393 F.2d 573, 575, cert. denied, 393 U.S. 845, 89 S.Ct. 132, 21 L.Ed.2d 117; Los Angeles Extension Co. v. United States, 9 Cir., 1963, 315 F.2d 1, 2. We may not overturn the fact finding of the Tax Court unless it is “clearly erroneous.” Commissioner of Internal Revenue v. Duberstein, 1960, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218; Northwest Acceptance Corp. v. Commissioner of Internal Revenue, 9 Cir., 1974, 500 F.2d 1222, and cases there cited. In a brief of over 100 pages, Rockwell’s counsel analyze the record exhaustively and repetitively and cite a great many cases. The length of the brief seems to be a function of the complexity of Rockwell’s dealings and of the amount of money involved, more than $738,000.00. We commend counsel’s diligence but not their editorial judgment. They could have said everything that they do say in about half as many pages. Almost always, when we grant permission to file an oversized brief, we have cause to regret having done so. We said in Los Angeles Extension Co. v. Commissioner of Internal Revenue, supra, 315 F.2d at 3, a case which, like this one, involved the trade or business issue: It is rare indeed that one will find any precedent value in applying the decision of one case to the facts of another case. At the most, other cases decided by the courts on this subject may be persuasive or suggestive of the approach of the courts to cases where the facts may be somewhat similar. For this reason, we do not burden this opinion with an analysis of the cases that counsel cite. None announces any principle that would require a reversal here. Moreover, it would serve no useful purpose to repeat here the facts which are detailed" }, { "docid": "4016567", "title": "", "text": "PER CURIAM. On consideration of the briefs and records filed in the above-styled appeal, and the memorandum opinion of the Tax Court, filed December 13, 1967, 49 T.C. 200, we affirm the judgment of the Tax Court. In this case there was a delay of over five months in the filing of the estate tax return beyond the 15-month period allowed by statute. The Tax Court found on the facts in this case that neither the litigation in which the estate was involved nor the executprs’ reliance upon their attorney constituted “reasonable cause” for failure either to file the return or make timely request for an extension. In Fisk v. Commissioner of Internal Revenue, 203 F.2d 358 (6th Cir. 1953), a penalty was assessed for an estate tax return which was mailed on the last day allowed by the statute but was received one day late. This court reversed, holding that the delay there involved was an innocent error made despite reasonable care. A five-month delay does not appear to us to present a comparable situation. We cannot hold on this record that the findings of fact of the Tax Court in this case are “clearly erroneous.” Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960)." }, { "docid": "6200888", "title": "", "text": "Estate of Freeland v. Commissioner, 393 F.2d 573, 583 (9th Cir.), cert. denied, 393 U.S. 845, 89 S.Ct. 132, 21 L.Ed.2d 117 (1968); Austin v. Commissioner, 263 F.2d 460, 461-62 (9th Cir. 1959) (decided under § 117(a)(1) of the 1939 Code, now § 1221); Los Angeles Extension Co. v. United States, 315 F.2d 1, 2-3 (9th Cir. 1963) (same); Bistline v. United States, 260 F.2d 77, 78 (9th Cir. 1958) (same); United States v. Beard, 260 F.2d 81, 82 (9th Cir. 1958) (same). See also Commissioner v. Duberstein, 363 U.S. 278, 289-91, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); United States v. United States Gypsum Co., 333 U.S. 364, 394-95, 68 S.Ct. 525, 92 L.Ed. 746 (1948); United States v. Hart, 546 F.2d 798, 801-02 (9th Cir. 1976) (en banc), cert. denied sub nom. Robles v. United States, 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 571 (1977); Lundgren v. Freeman, 307 F.2d 104, 115 (9th Cir. 1962). See generally 5A J. Moore, Moore’s Federal Practice ¶ 52.03[1], at 2613-17, 2655-57 (2d ed. 1975); id. 152.03[5], A factual finding by the trial court will ordinarily not be reversed unless the reviewing court concludes that such a finding is clear ly erroneous, or it is definitely and firmly convinced that, upon an examination of the entire record, a mistake has been committed. See United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Allen v. United States, 541 F.2d 786, 788 (9th Cir. 1976); Collman v. Commissioner, 511 F.2d 1263, 1267 (9th Cir. 1975); Bistline, supra; Beard, supra. Analysis under § 1221(1) has focussed, inter alia, upon the following factors: the length of holding of the property, the nature of the acquisition of the property, the frequency and continuity of sales over an extended period of time, the nature and the extent of the taxpayer’s business, the activity of the seller about the property, and the extent and substantiality of the transactions. Los Angeles Extension Co., 315 F.2d at 3. See Estate of Freeland, 393 F.2d at 582-83; Biedenharn Realty Co. v. United" }, { "docid": "590315", "title": "", "text": "personal business operations. The amounts so received by petitioner were retained by him and have never been paid over to the said associations. Held, that the respondent did not err in determining that petitioner realized income in 1956 in the amount of insurance premiums so refunded and received by him.” 37 T.C. at 703-705. The Tax Court then follows with nineteen pages of particularized findings of fact in support of the above general findings. Id. 37 T.C. at 706-724. These findings are incorporated in this opinion by reference thereto. Reference is further made to the Tax Court’s extended opinion by Judge Turner. Id. 37 T.C. at 724-754. On appeal, these findings of the Tax Court must stand unless shown to be clearly erroneous. Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Interstate Drop Forge Company v. Commissioner of Internal Revenue, 7 Cir., 326 F.2d 743 (January 7, 1964). Petitioners contend “that the Tax Court’s findings of fact and law constitute erroneous legal conclusions reversible as a matter of law.” After consideration of the briefs, oral argument of counsel, the opinion of the Tax Court and the record as a whole, we hold that there was substantial evidence to support the-Tax Court’s findings and that the Tax. Court did not err in holding petitioners-liable for income tax deficiencies in the' amount of $201,022.33. Zeddies v. C.I.R., 7 Cir., 264 F.2d 120, 126 (1959), cert. denied, 360 U.S. 910, 79 S.Ct. 1295, 3 L.Ed.2d 1260, rehearing denied, 361 U.S. 855, 80 S.Ct. 44, 4 L.Ed.2d 94. Petitioners also contend that the-Tax Court erred in finding that “a part, of the deficiency is due to fraud” and. assessing a fifty per cent penalty. Under Section 6653(b) of the Code, supra, n. 1, the fifty per cent penalty may be-assessed against the entire deficiency,, even though the finding of fraud relates only to part of the deficiency. The burden of proving fraud is on the Commissioner. Paddock v. United States, 2 Cir., 280 F.2d 563, 565 (1960). Civil fraud need not be proved! beyond a reasonable doubt, but" }, { "docid": "3652672", "title": "", "text": "evidence suggesting the stock probably was not worthless in 1949. On this record, we cannot hold that the Tax Court's determination — a finding of fact — was clearly erroneous. See Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Boehm v. Commissioner, 326 U.S. 287, 292-293, 66 S.Ct. 120, 90 L.Ed. 78 (1945); Midland Ford Tractor Company v. C. I. R., 8 Cir., 277 F.2d 111, 115 (1960), cert. denied, 364 U.S. 881, 81 S. Ct. 169, 5 L.Ed.2d 102 (1960); Cohen v. Commissioner, 2 Cir., 148 F.2d 336, 337 (1945). 6 — Long-Term Capital Gain Issue After completion of the Cheatham Lock project, Corporation sold the steel sheet piling and division equipment used on the project. Foundation contends that, if it is not tax exempt, its share of the profit realized from the sale of the piling and the equipment is a long-term capital gain under § 1231 of the Internal Revenue Code of 1954. The Tax Court affirmed the Commissioner’s determination that the profit constituted ordinary income and not capital gain. To qualify as a long-term capital gain under § 1231, the profit must have been realized from the sale of “property used in the trade or business.” Such property, according to § 1231(b), must (1) be used in the trade or business; (2) be subject to the allowance for depreciation ; and (3) be held for more than six months. The Tax Court sustained Commissioner’s determination as to the steel pilings on the ground that Foundation failed to satisfy its burden of proving that it or Corporation had held the pilings for more than six months. Based largely upon the testimony of Stevens, the Tax Court found that the pilings had been transferred to the Corps of Engineers during the construction project, causing an interruption in the holding period so as to disqualify the property from capital gain treatment under the “6-month” requirement of § 1231(b). Foundation contends that the Tax Court’s finding is erroneous in that Stevens’ testimony was somewhat inconsistent and that “a fair interpretation of Mr. Stevens’ testimony" }, { "docid": "6108778", "title": "", "text": "We are aware that other circuits have insisted that the taxpayer’s expectation of profit be both reasonable and in good faith. See, e. g., Godfrey v. Commissioner of Internal Revenue, 335 F.2d 82, 84 (6th Cir. 1964), Whitman v. United States, 248 F.Supp. 845 (W.D.La.1965). Unquestionably, however, in this circuit the rule is that a taxpayer’s venture is a trade or business if he has a good faith expectation of profit from that venture, irrespective of whether or not others might view that expectation as reasonable. Hirsch v. Commissioner of Internal Revenue, supra, 315 F.2d at 736, Brooks v. Commissioner of Internal Revenue, supra. We are not alone in this view. See, e. g., Lamont v. Commissioner of Internal Revenue, supra, 339 F.2d at 380, DuPont v. United States, 234 F.Supp. 681 (D.Del.1964). Here the taxpayer entered into a venture with a good faith expectation of profit. Whether that expectation was foolhardy or shrewd is of no moment. The taxpayer expended his effort and capital to the limit of his available time and resources. There can be no conclusion other than that the taxpayer’s venture, though small in results, was a trade or business within the meaning of sections 162 and 165. “* * * [A]ppellate review of determinations in this field must be quite restricted. * * * Where the trial has been by a judge without a jury, the judge’s findings must stand unless ‘clearly erroneous.’ Fed.Rules Civ.Proc., 52(a). ‘A finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ United States v. United States Gypsum Co., 333 U.S. 364, 395 [68 S.Ct. 525, 92 L.Ed. 746] * * * And Congress has in the most explicit terms attached the identical weight to the findings of the Tax Court. I.R.C. § 7482(a).” Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 290-291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960). We are left with a definite and firm conviction that, on the entire evidence, a mistake" }, { "docid": "22296496", "title": "", "text": "OPINION DUNIWAY, Circuit Judge: The Rockwells, husband and wife, who filed joint income tax returns for the years in dispute and whom we shall call Rockwell for convenience, appeal from a decision of the Tax Court. Tax Court Memorandum 1972-133, 31 T.C.M. 596, 72 T.C.Memo. 621. The Tax Court found that twelve real properties sold or exchanged by Rockwell during the taxable years 1963 through 1967 were held primarily for sale to customers in the ordinary course of a trade or business. Based on these findings, the Tax Court held that: (1) the gain or loss on “like kind” exchanges of certain of the properties should have been recognized; (2) the gain from the sales and exchanges was taxable as ordinary income rather than capital gain; (3) Rockwell was not entitled to certain deductions for depreciation of the properties; and (4) Rockwell was liable for the self-employment tax. Internal Revenue Code of 1954 (“IRC”), 26 U.S.C. §§ 1031(a), 1221(1), 167, 1401, respectively. See also Treas. Reg. § 1.167(a)-2. Rockwell’s counsel properly concede that the validity of holdings (3) and (4) depend upon the correctness of holdings (1) and (2). We affirm. I. The Tax Court’s Findings. Whether property is held primarily for sale in the ordinary course of trade or business is a question of fact. Estate of Freeland v. Commissioner of Internal Revenue, 9 Cir., 1968, 393 F.2d 573, 575, cert. denied, 393 U.S. 845, 89 S.Ct. 132, 21 L.Ed.2d 117; Los Angeles Extension Co. v. United States, 9 Cir., 1963, 315 F.2d 1, 2. We may not overturn the fact finding of the Tax Court unless it is “clearly erroneous.” Commissioner of Internal Revenue v. Duberstein, 1960, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218; Northwest Acceptance Corp. v. Commissioner of Internal Revenue, 9 Cir., 1974, 500 F.2d 1222, and cases there cited. In a brief of over 100 pages, Rockwell’s counsel analyze the record exhaustively and repetitively and cite a great many cases. The length of the brief seems to be a function of the complexity of Rockwell’s dealings and of the amount of money" }, { "docid": "17395074", "title": "", "text": "the presumption disappears and drops out of the case. Thus, the burden of proving the deficiency reverts to the government. United States v. Stone-hill, 9 Cir., 1983, 702 F.2d 1288, 1294; Karme v. C.I.R., 9 Cir., 1982, 673 F.2d 1062, 1065; Herbert v. C.I.R., 9 Cir., 1966, 377 F.2d 65, 69. The rule is different where claimed deductions are involved. As to these, the taxpayer has the ultimate burden. Rockwell v. C.I.R., 9 Cir., 1975, 512 F.2d 882, 886. B. Unreported income. The tax court holding that certain sums were due was a finding of fact, and as such, is “not [to be] overturned unless [it is] ‘clearly erroneous,’ ” Weimerskirch v. C.I.R., 9 Cir., 1979, 596 F.2d 358, 359, citing Rockwell v. C.I.R., 9 Cir., 1975, 512 F.2d 882, 884. “A finding is clearly erroneous when this court is ‘left with the definite and firm conviction that a mistake has been committed.’ ” Weimerskirch, supra, 596 F.2d at 359-360, citing C.I.R. v. Duberstein, 1960, 363 U.S. 278, 291, 80 S.Ct. 1190, 1200, 4 L.Ed.2d 1218. The Keoghs argue that the toke totals that they reported to the Dunes were based upon records clearly reflecting their income, as required by § 6001 of the Internal Revenue Code. The Keoghs contend that the tax court erred in rejecting their testimony in favor of income projections derived from the Whitlock diary. But the tax court did not rely solely on the diary in finding that the Keoghs did not correctly report their income. It relied also on its findings that the daily toke income they reported was too small an amount to have caused the elaborate sharing arrangement among the dealers and to have triggered objections by dealers to sharing their tokes with other dealers acting as temporary floormen, and was inconsistent with the dealers’ donation of $20 a day in tokes to dealers off work sick. Tax Court memo at 25-26. The tax court is not obliged to believe a taxpayer’s testimony rather than evidence introduced by the Commissioner, see Grudin v. C.I.R., 9 Cir., 1976, 586 F.2d 295,296; Potts, Davis" } ]

[ { "docid": "22064495", "title": "", "text": "JON 0. NEWMAN, Circuit Judge: Litigants wishing to object to the recommendations of a magistrate judge, submitted in a report to a district judge, have ten days after being served with the report. 28 U.S.C. § 636(b)(1) (1988). Failure to object within the allotted ten days results in a waiver of further judicial review. Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985); McCarthy v. Manson, 714 F.2d 234, 237 & n. 2 (2d Cir.1983). In Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir.1989) (per curiam), this Court held that the waiver rule would be invoked against pro se litigants only if a magistrate judge’s report (a) informs the pro se litigant that the failure to object to the report within ten days will result in the waiver of further judicial review and (b) cites pertinent statutory and civil rules authority. This appeal raises the narrow issue whether a non-material omission from the notice requirements of Small may be disregarded by a district court in declining to consider a late objection to a magistrate judge’s report. The issue arises on the appeal of Floyd Frank from the June 19, 1991, judgment of the District Court for the Eastern District of New York (Reena Raggi, Judge), denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (1988). Because we hold that a non-material omission from the notice required in the magistrate judge’s report does not relieve the pro se litigant of the obligation to file timely objections to the report in order to preserve further judicial review, we affirm. Facts Following a jury trial in absentia, Frank was convicted of Criminal Possession of a Controlled Substance in the Second Degree, in violation of N.Y.Penal Law § 220.18[1] (McKinney 1989). After exhausting his available state remedies, see People v. Frank, 161 A.D.2d 794, 556 N.Y.S.2d 368 (2d Dep’t), appeal denied mem., People v. Frank, 76 N.Y.2d 939, 563 N.Y.S.2d 69, 564 N.E.2d 679 (1990), Frank filed a pro se habeas petition. Judge Raggi referred" } ]

[ { "docid": "18059505", "title": "", "text": "CONCLUSION For the reasons set forth above, I recommend that this Court remand LoFranco’s special condition of parole to the Parole Commission for reconsideration in accordance with this Report and Recommendation. In the event that the special condition concerning other “outlaw motorcycle gangs” is not revised within sixty days, I recommend that the Court grant LoFranco’s habeas corpus petition to the extent of freeing LoFranco from that part of the special condition as restricts his association with “outlaw motorcycle gangs.” FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of CM Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable John E. Sprizzo, 40 Centre Street, Room 2201, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Sprizzo. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Services, 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). Oct. 9,1996. . The parties' papers and the Parole Commission documents inconsistently spell Hell’s Angels with and without the apostrophe. The Court will use \"Hell’s Angels” throughout this Report and Recommendation. . LoFranco also pled guilty to counts 3 and" }, { "docid": "5998198", "title": "", "text": "his unexhausted claims (see fn. 7 above). May 26, 1999. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lawrence M. McKenna, 500 Pearl Street, Room 1640, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for fifing objections must be directed to Judge McKenna. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL—CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15 (2d Cir.1989); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d. Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). . The District Attorney’s office had alleged that according to their records, Orraca did not request leave to appeal the CPL § 440.10 decision to the First Department. (Axelrod Aff. ¶ 10.) Orraca disputed that and submitted copies of his notice of appeal to the First Department. (Orraca Traverse Aff. ¶ 22 & Ex. B: Orraca 10/20/98 Leave to Appeal papers.) Orraca also wrote to the First Department, stating that \"[i]t appears that something, somewhere turned up missing or was overlooked.” (Orraca Traverse Ex. C: 11/23/98 Letter to 1st Dep’t.) It appears that as a result of this letter, the First Department denied leave to appeal. . Because Orraca’s petition clearly contains unexhausted claims, the Court has not carefully examined all claims that he" }, { "docid": "5445644", "title": "", "text": "F.Supp. 535, 542 (E.D.N.Y.1991), aff'd sub nom. Laaman v. United States, 973 F.2d 107, 113-14 (2d Cir.1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993). Torres does not claim that he urged his appellate counsel to not raise these issues and instead to raise trial counsel’s ineffectiveness. Based on the “highly deferential” Strickland review standard, Torres’ appellate counsel’s conduct does not fall “outside the wide range of professionally competent assistance.” Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2066. Torres’ habeas claim of ineffective assistance of appellate counsel therefore should be denied. CONCLUSION For the reasons set forth above, the Court should deny Torres’ petition for a writ of habeas corpus. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Denise L. Cote, 500 Pearl Street, Room 1040, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Cote. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL—CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). MEMORANDUM OPINION and" }, { "docid": "16378521", "title": "", "text": "Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). May 21,1997 SUPPLEMENTAL REPORT AND RECOMMENDATION To the Honorable Kimba M. Wood, United States District Judge: On May 21, 1997, I issued a Report and Recommendation recommending “that the Court summarily dismiss petitioner George Fluellen’s habeas corpus petition on the ground that he is not entitled to relief, since his petition is (1) untimely under the one-year limitation period imposed by the Anti-terrorism and Effective Death Penalty Act (‘AEDPA’), and (2) a ‘mixed’ petition.” On sua sponte re-reviewing Fluellen’s Petition, I modify my May 21, 1997 Report and Recommendation to delete the first ground; the Petition, however, still should be dismissed without prejudice under the second ground, as a mixed petition. In enacting the one-year statute of limitations, the AEDPA provides that the “time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). Fluellen’s Petition states that a coram no-bis petition is pending before the First Department. (Petition ¶ 11(b).) The Petition does not state when that coram nobis petition was filed. Depending on when it was filed, and whether the AEDPA’s “tolling” provision includes second collateral attacks (an issue which I need not address at this time), it is possible that Fluellen’s Petition is not" }, { "docid": "14515639", "title": "", "text": "deny Squadron Ellenoffs motion to dismiss. The parties are to call my courtroom deputy promptly to schedule the Initial Pretrial Conference. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Whitman Knapp, 40 Centre Street, Room 1201, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Knapp. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Services, 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). March 26,1997. . We further agree with Judge Pecks' conclusion that the doctrine of in pari delicto (with its \"adverse exception rule\"), although a matter of state law, is very similar to the Wagoner rule in that its application depends on a finding that all relevant shareholders and decisionmakers of the corporation were engaged in the fraud. See Report at 44-46. Accordingly, if plaintiff can sufficiently allege an innocent member of Towers’ management so as to render the Wagoner rule inapplicable, then the adverse exception rule to the doctrine of in pari delicto will apply. . In March 1995, the" }, { "docid": "12314261", "title": "", "text": "will, and can have no breach of contract claim under New York law. See, e.g., Sherman v. HarperCollins Publishers, Inc., 98 Civ. 2809, 1998 WL 437158 at *3-4 (S.D.N.Y. July 31, 1998) (citing cases). CONCLUSION For the reasons set forth above, I recommend that the Court grant defendants’ summary judgment motion. FILING OF OBIECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Sidney H. Stein, 500 Pearl Street, Room 1010, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Stein. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd, 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). . Citations to Defendants' Rule 56.1 Statement also include the record references cited in the Rule 56.1 Statement. The Court notes that plaintiff Douglas' counsel did not file an opposition Rule 56.1 Statement as required by S.D.N.Y. Local Civil Rule 56.1(b), and therefore the statements in defendants’ Rule 56.1 Statement are deemed admitted. See S.D.N.Y. Local Civil Rule 56.1(c); see also, e.g., DiCola v. SwissRe Holding (N. Am.), Inc.," }, { "docid": "1957297", "title": "", "text": "claim in seeking leave to appeal to the Court of Appeals itself was a procedural default barring the claim from federal habeas review absent cause and prejudice (not here present). See, e.g., Jordan v. Lefevre, 22 F.Supp.2d 259, 261-62, 266-69 (S.D.N.Y.1998) (Mukasey, D.J. & Peck, M.J.), and cases cited therein. Veras’s due process sentencing claim is barred from federal habeas review. CONCLUSION For the reasons set forth above, the Court should deny Veras’s petition for a writ of habeas corpus. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Harold Baer, Jr., 500 Pearl Street, Room 2230, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Baer. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert, denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Edüd 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). March 15,1999. . Nancy M. Lopez, a second-year student at New York Law School, assisted in the research and preparation of this opinion. . In that earlier petition, Veras claimed that \"(1) the trial court erred in denying" }, { "docid": "1504178", "title": "", "text": "TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lawrence M. McKen-na, 500 Pearl Street, Room 1640, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge McKenna. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Services, 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). . § 440.10 (l)(h) states in pertinent part: At any time after the entry of judgement, the court in which it was entered may, upon motion of the defendant, vacate such judgement upon the ground that: .... (h) The judgement was obtained in violation of right of the defendant under the Constitution of this state or of the United States. . Prior to amendment by the AEDPA, 28 U.S.C. § 2254(b) provided that: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the court of the State, or that there is either an" }, { "docid": "18027080", "title": "", "text": "by the AEDPA’s one-year statute of limitations. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Deborah A. Batts, 500 Pearl Street, Room 2510 and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Batts. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86(199), 130 L.Ed.2d 38; Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). Aug. 11,1997. . Because there are \"gaps\" during which Roldan did not have direct appeals or collateral attacks pending in state court, the one-year period actually would have elapsed earlier than April 1994. As that exact date has no bearing on the Court's analysis, it is not necessary to calculate it. . See also Valentine v. Senkowski, 966 F.Supp. 239, 240-41 (S.D.N.Y.1997) (Brieant, J.) (pro se petition four months after AEDPA is timely)." }, { "docid": "15176974", "title": "", "text": "amended) (“An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state.”) (emphasis added). CONCLUSION For the reasons set forth above, the Court should deny Johnson’s federal habeas petition without prejudice as a “mixed” petition. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 750 and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). May 22,1997 DATED: New York, New York . It appears from the Petition and a reading of the First Department's decision that Johnson's first and second habeas grounds were raised on direct appeal. Compare Petition ¶ 12(A-B) with People v. Johnson, 220 A.D.2d 277, 632 N.Y.S.2d 107 (1st Dep’t 1995). It is not clear from the Petition and the First Department's decision whether Johnson raised" }, { "docid": "16378520", "title": "", "text": "(“An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state.”) (emphasis added). CONCLUSION For the reasons set forth above, the Court should dismiss with prejudice Fluellen’s petition as barred by the AEDPA’s one-year statute of limitations, or at least deny the petition without prejudice as a “mixed” petition. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Wood. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). May 21,1997 SUPPLEMENTAL REPORT AND RECOMMENDATION To the Honorable Kimba M. Wood, United States District Judge: On May 21, 1997, I issued a Report and Recommendation recommending “that the Court summarily dismiss petitioner George Fluellen’s habeas corpus petition on the ground that he is not entitled to relief, since his petition" }, { "docid": "6264020", "title": "", "text": "Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Harold Baer, Jr., 500 Pearl Street, Room 2230, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Baer. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). November 3, 1998. . Sean Serpe, a second-year student at Ford-ham Law School, assisted in the research and preparation of this decision. . To the extent that Tapia-Garcia challenges the effectiveness of his counsel at trial, his claim is procedurally barred. Since the petitioner did not raise this claim on direct appeal, he is required to show both cause for not earlier raising this issue and prejudice resulting from it. See Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998); Bloomer v. United States, 162 F.3d 187, 191-192 (2d Cir.1998). \"Thus, where the defendant is represented by new appellate counsel on direct appeal, and the ineffective assistance claim is based solely on the record developed at trial, the defendant is required to" }, { "docid": "12247121", "title": "", "text": "REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable William H. Pauley, 40 Foley Square, Room 234, and to my chambers, 600 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Pauley. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL—CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). June 15,1999. . Since the parties have conducted and completed discovery and have submitted documents outside the pleadings for the Court’s consideration, the Court analyzes defendants’ motion only under summary judgment standards. See, e.g., Fed.R.Civ.P. 12(b)(6) (if on a motion made pursuant to Rule 12(b)(6) \"matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 .... ”); Mann v. Meachem, 929 F.Supp. 622, 627-28 (N.D.N.Y.1996) (\"Discovery is nearly completed in this case, and affidavits have been submitted. Accordingly, the Court will treat this motion [to dismiss and for summary judgment] as one for summary judgment.”). . The entire Ali deposition transcript is found at Seymour Aff.Ex." }, { "docid": "15075267", "title": "", "text": "“has no constitutional rights that could have been violated.... She herself has no right to visitation or telephone contact with her inmate husband”). Moreover, as noted above, plaintiffs have not presented any evidence that the named defendants had any involvement in Jackson’s transfer to another prison. Accordingly, defendants should be granted summary judgment dismissing Ruby Jackson’s claims. CONCLUSION For the reasons set forth above, the Court recommends that defendants’ summary judgment motion be granted. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). . Johnson Decl. Ex. A. . Jackson was charged with violation of Rule 113.10 which states that \"[i]nmates shall not make, possess, sell or exchange any item of contraband that may be classified as a weapon by description, use or appearance.” Johnson Aff. ¶ 4 &" }, { "docid": "18233458", "title": "", "text": "CONCLUSION For the reasons set forth above, plaintiffs’ motion to compel the Publications to comply with the subpoenas is GRANTED limited to the reported trade data for the Henry hub, and subject to the additional limitations discussed above. Based on the parties’ agreement at oral argument (11/9/05 Oral Arg. Tr. at 97-98), the Court stays implementation of this Opinion and Order for the ten (10) day period allowed for the filing of objections; if objections are filed, by agreement of the parties, the stay will remain in effect until the objections are decided by Judge Marrero (or until further Court order). FILING OF OBJECTIONS TO THIS OPINION AND ORDER Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Opinion to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Victor Marrero, 40 Centre Street, Room 414, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Marrero. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). SO ORDERED. . According to Platts, “both the daily and monthly indices are subject to editorial and journalistic judgment at every step of" }, { "docid": "17836115", "title": "", "text": "interests of judicial economy demand that parties may bring suit here only by showing a substantial connection between the cause of action and this district. Raines v. Switch Mfg. Corp., 1996 WL 413720 at *3. Here, as in Raines, this case has no connection to New York. It should be transferred to the District of New Mexico. CONCLUSION For the reasons set forth above, the Court recommends that BANTSA’s (1) partial summary judgment motion as to the Third Count of Coker’s complaint (account closing claim) be granted, (2) motion to dismiss for failure to satisfy the amount in controversy requirement be denied, and (3) motion to transfer the case to the District of New Mexico be granted. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable John F. Keenan, 500 Pearl Street, Room 1930, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Keenan. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). . The new" }, { "docid": "3355539", "title": "", "text": "they had gone to buy cigarettes. While the defendant was waiting in his car, the victim was making a phone call on, the corner and an unknown man came and shot him. (Id. at p. 4.) It is significant that, as Justice Crane found, Rodriguez decided to plead guilty after he learned that the eyewitness would be available to testify at trial. (Gov’t Aff. Ex. I: 3/16/90 Opinion at 8-11.) Therefore, it was not objectively unreasonable for appellate counsel to conclude that if he challenged Rodriguez’s guilty plea on appeal, any “victory” in the appellate court would be a Pyrrhic victory. CONCLUSION For the reasons set forth above, I recommend that the Court deny Rodriguez’s habe-as corpus petition on the merits, with prejudice. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable John E. Sprizzo, 40 Centre Street, Room 2201, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Sprizzo. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P." }, { "docid": "1957403", "title": "", "text": "retaliate against his estranged wife for leaving him (e.g., Tr. 1586-602, 1792-93), and that the handwriting evidence was not sufficient to link Franza to the crimes beyond a reasonable doubt (Tr. 1803-08). Accordingly, it was reasonable for Fran-za’s trial counsel to not have pursued the “fabricated evidence” defense, but instead to have argued reasonable doubt based on problems with the handwriting evidence. Trial counsel’s strategy was reasonable; trial counsel was not ineffective. CONCLUSION For the reasons set forth above, Fran-za’s habeas corpus petition should be denied as without merit. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fifteen (15) days from service of this Report to file written objections. See also Fed. R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). June 7,1999. . Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). . See United States v. Gagnon, 470 U.S. 522, 526-27, 105 S.Ct 1482, 84" }, { "docid": "3355540", "title": "", "text": "be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable John E. Sprizzo, 40 Centre Street, Room 2201, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Sprizzo. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). . Implicitly, therefore, Judge Griesa found that Rodriguez's claim of ineffective assistance of appellate counsel was exhausted. This Court agrees, and holds that the government’s half hearted (see Gov't Br. at 15-16) claim that Rodriguez did not exhaust all aspects of his ineffective assistance of appellate counsel claim is without merit and barred by the \"law of the case” doctrine. . Prior to enactment of the Antiterrorism and Effective Death Penalty Act (\"AEDPA”), \"a petition filed after a previously submitted petition was dismissed without prejudice was not considered an abuse of the writ.” Camarano v. Irvin, 98 F.3d 44, 46 (2d Cir.1996). Even after the AEDPA amendments, “a petition filed after a prior petition is dismissed without prejudice for failure to exhaust state remedies is not a 'second or successive' petition within the meaning of § 2244.” Camarano v. Irvin, 98 F.3d at 47. Since Rodriguez's petition predates enactment of the AEDPA on April 24, 1996, it is to be analyzed under the pre-AEDPA habeas corpus rules. Lindh v. Murphy,— U.S. —," }, { "docid": "16881491", "title": "", "text": "admissible evidence that Officer Ruiz called him a snitch, Watson has not established an essential element of his case and thus Officer Ruiz’s summary judgment motion should be granted. CONCLUSION For the reasons set forth above, I recommend that defendant Ruiz’s summary judgment motion be granted. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Amy requests for an extension of time for filing objections must be directed to Judge Kaplan. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). . The Courts prior opinion dismissed the action as to defendants McGinnis and Many, subject to the filing of an amended complaint. Defendant Watson did not serve or file an amended complaint. Plaintiff Watson also was given until June 15, 1997 to serve the complaint on defendant Corrections Officer Decker. He did not do so and the Court recommends dismissal of the action as to Decker without prejudice pursuant to Fed.R.Civ.P. 4(m) See Watson" } ]

[ { "docid": "8467131", "title": "", "text": "and therefore ran afoul of the § 2680(h) exclusion. However, before the action was dismissed, the district court entered a pretrial order, which supersedes the complaint as the basis for disposition of the case. See Hullman v. Board of Trustees of Pratt Community College, 950 F.2d 665, 667 (10th Cir.1991) (“The pretrial order supersedes the pleadings and controls the subsequent course of litigation.”). By this time, a factual dispute had developed over whether Mr. Franklin had in fact signed a consent form prior to his surgery, though without the participation of his wife. In keeping with this development, Mrs. Franklin’s contentions in the pretrial order included the new, alternative allegation that, even if her husband had given his written consent, it was ineffective because he lacked the mental capacity to give a valid consent at the time. Under this view, the surgery was unauthorized regardless of Mr. Franklin’s actions, because Mrs. Franklin’s consent was not obtained. See generally Aplt. Addendum Vol. I, tab 2. On appeal, Mrs. Franklin argues that the incorrect assessment of her husband’s mental competence, and the consequent failure to obtain her substituted consent, constituted negligence giving rise to liability unaffected by § 2680(h). This argument actually raises two separate questions' that must be addressed sequentially. First, should a claim of unauthorized surgery based on incapacity to consent be treated as merely one variant of the lack-of-consent theory and, thus, a medical battery, or should it be grouped with uninformed consent claims under the rubric of negligence? Applying a similar medical battery/informed consent distinction from Illinois law, the Seventh Circuit held in Lojuk v. Quandt, 706 F.2d 1456, that by asserting “because of his mental state he was unable to consent, ... plaintiff in effect alleges a total lack of consent, ... [and thus] the complaint alleges a battery, rather than a tort involving negligence.” Id. at 1460. The court concluded the United States was, consequently, immune from suit under § 2680(h). Id. at 1462. This result properly reflects the general rule that an incompetent consent to the intentional invasion of one’s person has no effect and," } ]

[ { "docid": "22893158", "title": "", "text": "the governmental employers in the amended complaint. II. EFFECT OF AMENDED COMPLAINT As a threshold matter, we must determine whether the Parents’ challenges to the dismissal of the claims asserted against the individual law enforcement officers in the original complaint are properly before us. As a general rule, “an amended pleading ordinarily supersedes the original and renders it of no legal effect.” Crysen/Montenay Energy Co. v. Shell Oil Co. (In re Crysen/Montenay Energy Co.), 226 F.3d 160, 162 (2d Cir.2000); see also 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1476 (2d ed. 1990) (“A pleading that has been amended ... supersedes the pleading it modifies.... Once an amended pleading is interposed, the original pleading no longer performs any function in the case.... ”). According to the Appellees, because the Parents failed to include any claims against the individual officers in the amended complaint, which superseded the original complaint, the Parents have waived their right to challenge the dismissal of the claims against the individual defendants. We disagree. Most circuits refuse to require a plaintiff to replead dismissed claims in order to preserve the right to appeal the dismissal. See Davis v. TXO Prod. Corp., 929 F.2d 1515, 1518 (10th Cir.1991) (“We believe that a rule requiring plaintiffs who file amended complaints to replead claims previously dismissed on their merits in order to preserve those claims merely sets a trap for unsuspecting plaintiffs with no concomitant benefit to the opposing party.... The district court’s dismissal of the claim made clear that any attempt by appellant to re-allege that claim would be futile.” (footnotes and internal citations omitted)); accord In re Crysen/Montenay, 226 F.3d at 162; Dunn v. Air Line Pilots Ass’n, 193 F.3d 1185, 1191 n. 5 (11th Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 2197, 147 L.Ed.2d 233 (2000); see also Wright & Miller, § 1476 (“A rule that a party waives all objections to the court’s dismissal if he elects to amend is too mechanical.... Without more, the action of the amending party should not result in completely denying" }, { "docid": "14630179", "title": "", "text": "this claim is denied. The qualified privilege is defense is an affirmative one, Turner v. Halliburton Co., 240 Kan. 1,7-8, 722 P.2d 1106 (1986), and, as such, must be preserved in the answer to a complaint or, at the very least, in the pretrial order. See Fed. Civ. P. 8(c). Plaintiffs maintain that Black & Veatch failed to preserve this defense in the pretrial order. Although Black & Veatch did not specifically identify any affirmative defenses in the pretrial order, it incorporated by reference the affirmative defenses set forth in its answer to plaintiffs first amended complaint. According to Black & Veatch, it specifically raised the qualified privilege defense in its answer. The court disagrees. Black & Veatch directs the court to an affirmative defense that states, “Black & Veatch is entitled to absolute and/or qualified or good faith immunity.” This defense clearly speaks to plaintiffs’ section 1983 and section 1985 claims. In fact, the defense immediately follows a paragraph in which Black & Veatch denies that it acted under color of state law and immediately precedes a paragraph in which Black & Veatch denies that it conspired with any other party. Moreover, the defense highlighted by Black & Veatch does not mention any “privilege” as contemplated under Kansas law concerning defamation. The court has reviewed the remaining defenses set forth in Black & Veatch’s answer to plaintiffs’ first amended complaint and has found that the qualified privilege defense is simply not preserved. Accordingly, Black & Veatch has waived its right to assert qualified privilege as a defense to plaintiffs’ defamation claim. See Fed. R.Civ.P. 16(e); Tyler v. City of Manhattan, 118 F.3d 1400, 1403 (10th Cir.1997) (citing Hullman v. Board of Trustees, 950 F.2d 665, 668 (10th Cir.1991)). The remaining issue before the court with respect to plaintiffs’ defamation claim is whether plaintiffs have set forth sufficient facts demonstrating that their reputations were damaged by Black & Veatch’s alleged statements. In support of their claim, plaintiffs rely primarily on the affidavit of Mr. Edwards. There, Mr. Edwards testifies that the waiver language in the prime agreement has been circulated" }, { "docid": "6392532", "title": "", "text": "a status hearing on a rescinded complaint. This is not a permissible practice. It is well-established that an amended pleading supersedes the original pleading; facts not incorporated into the amended pleading are considered functus officio. See Duda v. Board of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1057 (7th Cir. 1998); Wellness Community-Nat’l v. Wellness House, 70 F.3d 46, 49 (7th Cir.1995); Lubin v. Chicago Title & Trust Co., 260 F.2d 411, 413 (7th Cir.1958) (“It is hornbook law that an amended complaint complete in itself and making no reference to nor adopting any portion of a prior complaint renders the latter functus officio.”); Nisbet v. Van Tuyl, 224 F.2d 66, 71 (7th Cir.1955) (“An amended pleading ordinarily supersedes the prior pleading. The prior pleading is in effect withdrawn as to all matters not restated in the amended pleading, and becomes functus officio.”) (footnote omitted); see also 3 James Wm. MooRE, et al., Moore’s Fedeeal PRACTICE ¶ 15.17[3] (3d ed. 1997) (“An amended pleading that is complete in itself and does not reference or adopt any portion of the prior pleading supersedes the prior pleading.”). If certain facts or admissions from the original complaint become functus officio, they cannot be considered by the court on a motion to dismiss the amended complaint. A court cannot resuscitate these facts when assessing whether the amended complaint states a viable claim. The Fifth Circuit faced an analogous issue in Hibernia National Bank v. Carner, 997 F.2d 94 (5th Cir.1993). Appellant Carner was one of eight partners in a partnership that defaulted on a mortgage with Hibernia. Hibernia foreclosed on the mortgage and sued the partnership for a deficiency judgment. In Hibernia’s original complaint, the Bank stated that Carner was only liable for 5% of the partnership’s deficiency judgment. Hibernia filed an amended complaint in which this “judicial confession,” as the court called it, was “amended away.” Id. at 101. The Fifth Circuit held that Carner could not rely on Hibernia’s “admission” from the original complaint in refuting the Bank’s motion for summary judgment based on the amended complaint." }, { "docid": "20593055", "title": "", "text": "346 (5th Cir. 1994) (“An amended complaint supersedes the original complaint and renders it of no legal effect unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading.”). We must decide whether, and in what manner, to consider the agents’ affidavits, which were attached to the Defendants’ original motion and were incorporated by reference into their second motion. The district court never ruled on Bosarge’s motion to strike these affidavits, and it is unclear whether the district court considered the affidavits in denying the Defendants’ motion for judgment on the pleadings or for summary judgment. We have held that “[dlocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiffs complaint and are central to her claim.” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir.2004). Given the similarities in the analyses under Rule 12(c) and Rule 12(b)(6), we will apply the same rule to documents attached to the Defendants’ motion for judgment on the pleadings. See Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir.2002). Bosarge’s amended complaint borrows a number of facts from the agents’ affidavits, while disputing other claims made in these affidavits. The Defendants argue that Bo-sarge, by relying on these affidavits, “has elected to incorporate” them into his amended complaint. Bosarge counters that “[w]hile the amended complaint refers to various portions of the affidavits, it never ‘incorporates’ them.” Because the amended complaint relies substantially on the affidavits, we believe these affidavits should be considered as part of the pleadings, such that the motion need not be treated as one for summary judgment. See Fed.R.Civ.P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”). However, while the affidavits may be considered as an aid to evaluating the pleadings, they should not control to the extent that they conflict with Bosarge’s allegations. We distinguish these affidavits from contracts and" }, { "docid": "13914498", "title": "", "text": "GRANTED, and Plaintiffs remaining claims are hereby DISMISSED AS TO ALL DEFENDANTS. Having carefully considered the First Amended Complaint and applicable law, the Court finds that it appears to a certainty that granting leave to amend would be futile, and accordingly DISMISSES Plaintiffs Complaint WITH PREJUDICE. 3. The Clerk of the Court is directed to enter judgment in Defendants’ favor and to deny as moot all remaining motions and ex parte applications [Docket Nos. 4, 19, 21, 26]. IT IS SO ORDERED. . The Court notes that Plaintiff refers to Governor Bush as the \"State of Taxes Governor.” . In this amended pleading, Plaintiff purports to incorporate her entire original complaint into the first amended complaint. An amended pleading, however, supersedes all previous complaints filed or submitted for filing in an action, so all claims not re-alleged in the amended pleading are deemed to have been waived. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir.1989); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987). Further, Civil Local Rule 15.1 provides that an amended pleading must be retyped and filed so that it is complete in itself without reference to the superseded pleading. Civ. L. Rule 15.1. Accordingly, Plaintiff's allegation purporting to incorporate her original complaint is ineffective, and the Court will not consider the allegations in her original complaint. . Unless otherwise noted, all future citations to \"Rule” shall refer to the Federal Rules of Civil Procedure. . The Court notes that Plaintiff’s failure to file an opposition to this motion may constitute consent to the granting of this motion under Civil Local Rule 7.1(f)(3)(c)." }, { "docid": "16078655", "title": "", "text": "the pleadings. See Bankr.R. 7008(b) (“A request for an award of attorney’s fees shall be pleaded as a claim in a complaint, cross-claim, third-party complaint, answer, or reply as may be appropriate.”). Similarly, First Card argues that Federal Rule of Civil Procedure 9(g) (which is made applicable to adversary proceedings by Bankruptcy Rule 7009) requires that claims for “items of special damage” be “specifically stated.” Because Hunt’s answer did not include a request for attorney’s fees, First Card argues that Hunt waived his right to fees. Bankruptcy courts are split on the issue of whether a debtor must request fees in the pleadings, for fees to be awardable under § 523(d). Compare Thorp Credit, Inc. v. Smith (In re Smith), 54 B.R. 299, 303 (Bankr.S.D.Iowa 1985) (holding that no request in the pleadings is required), with Montgomery Ward & Co. v. Blackburn (In re Blackburn), 68 B.R. 870, 881 (Bankr.N.D.Ind.1987) (holding that a request is required). We need not resolve that issue in this case, however, because First Card’s argument fails on independent grounds. Hunt requested attorney’s fees in his pretrial conference statement, and that request was incorporated by reference in the bankruptcy court’s pretrial order. A pretrial order “has the effect of amending the pleadings.” 999 v. C.I.T. Corp., 776 F.2d 866, 871 n. 2 (9th Cir.1985) (holding that the affirmative defense of mitigation of damages had not been waived despite its having been omitted from the pleadings, because it was included in the pretrial order). Moreover, “a pretrial order will be liberally construed to permit consideration of any issues that are embraced within its language.” ACORN v. City of Phoenix, 798 F.2d 1260, 1272 (9th Cir.1986) (citations and internal quotation marks omitted). Because Hunt’s request for attorney’s fees was incorporated by reference in the pretrial order, which had the effect of amending the pleadings, Hunt did not waive his right to fees by omitting the request from his answer, even assuming that a pleaded request for fees were required. The waiver argument therefore fails. First Card’s second argument is that Hunt’s right to fees was waived by certain" }, { "docid": "14751002", "title": "", "text": "1015 (1st Cir.1988). See also Beddall, 137 F.3d at 17. In order for a document to be incorporated into the pleadings, the Court must find that the document is “ ‘referred to in the plaintiffs complaint and ... central to [a] claim.’ ” Id. (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.1993)). A plaintiffs mere reference to a document or limited quotation from a document in a complaint does not render the document incorporated by reference. See Fudge, 840 F.2d at 1015 (citing Goldman v. Belden, 754 F.2d 1059, 1066 (2d Cir.1985)). According to these standards, the Court may consider Bowdoin’s Student Handbook and the signed Social and Hon- or Pledge. These documents are central to Plaintiffs allegation that he has a contractual relationship with Bowdoin — an allegation on which Plaintiffs 42 U.S.C. § 1981, breach of contract, and tortious interference with contract claims depend. The other documents, although possibly relevant to these claims and Plaintiffs § 1981 claim, are not so integrated into or central to Plaintiffs Amended Complaint as to be incorporated by reference. Defendants accurately point out that Plaintiffs Amended Complaint contains quotations from the transcript of the J-Board proceeding, see Amended Complaint ¶¶ 35-40, but these limited quotations do not have the effect of incorporating the transcript into the Amended Complaint. See Fudge, 840 F.2d at 1015. In deciding Defendants’ Motion to Dismiss, therefore, the Court will rely on Plaintiffs Amended Complaint, Bowdoin’s Student Handbook, and the Social and Honor Pledge. B. Whether Plaintiff Has Adequately Pleaded a Claim for Relief under Title 42 U.S.C. §§ 1981 and 2000d Defendants urge the Court to dismiss Plaintiffs 42 U.S.C. §§ 1981 and 2000d claims, arguing that the Court of Appeals for the First Circuit has imposed a heightened pleading standard on civil rights plaintiffs and that Plaintiff has failed to allege the “ ‘specific facts adequate to show or raise a plausible inference that [he] was subject to race-based discrimination’ ” required under this standard. Motion to Dismiss at 7 (quoting Dartmouth Review v. Dartmouth Coll., 889 F.2d 13," }, { "docid": "23275774", "title": "", "text": "affirmative relief from the district court under those provisions”. Our examination of the record, however, reveals that the plaintiffs proceeded to trial solely on a breach of warranty theory, and allegations of violations of the provisions of § 2308 came up only as a response to the defendants’ affirmative defense that they were not liable for the damages sought because of certain disclaimers contained in the limited warranty supplied with the mobile home. The parties filed a joint Proposed Pretrial Order with the trial court two weeks after the amended complaint was filed. The plaintiffs’ own statement of their claims under the MMWA, in a section titled “PLAINTIFF’S CONTENTIONS”, alleges only a breach of warranty: 13. This breach of warranty is cognizable under .several legal theories which impose liability on both of these Defendants: (a) the implied warranty of merchantability under Tex.Bus. & Comm. Code §§ 2.314; (b) the implied warranty of habitability under Texas common law; (c) the Texas Deceptive Trade Practices-Consumer Protection Act § 17.50(a)(2) Tex.Bus. & Comm.Code; and (d) the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301-12. Tr. Vol. VII at 1989. No other mention of the MMWA is made by the plaintiffs in the pretrial order. The omission in the pretrial order of any more specific references to the MMWA is significant, because any such references not contained in the complaint would have been effective to amend the previous pleadings to state a claim under the referenced provisions. Syrie v. Knoll Int’l, 5 Cir.1984, 748 F.2d 304, 308. Both defendant Redman Homes and defendant Republic Homes of Texas raised in the pretrial order the affirmative defense that the “warranty was limited to the obligation to remedy defects or malfunctions upon reasonable written notice, without charge to the Boelens; and liability for consequential damages was excluded.” Tr. Vol. VII at 1993 (Redman), 1997 (Republic). Similarly, the defendants both pleaded as their NINETEENTH affirmative defense in their Second Amended Answer to the plaintiffs’ amended complaint that the plaintiffs’ claims were barred because each defendant, through the warranty, “has ex- eluded liability for consequential and incidental damages and has" }, { "docid": "22071848", "title": "", "text": "one. Such a limitation would leave the relator free to plead a trivial theory of fraud for which he had some direct and independent knowledge and later amend the complaint to include theories copied from the public domain or from materials in the Government’s possession. Even the Government concedes that new allegations regarding a fundamentally different fraudulent scheme require reevaluation of the court’s jurisdiction. See Brief for United States 40; Tr. of Oral Arg. 40. The rule that subject-matter jurisdiction “depends on the state of things at the time of the action brought,” Mollan v. Torrance, 9 Wheat. 537, 539 (1824), does not suggest a different interpretation. The state of things and the originally alleged state of things are not synonymous; demonstration that the original allegations were false will defeat jurisdiction. Anderson v. Watt, 138 U. S. 694, 701 (1891); Morris v. Gilmer, 129 U. S. 315, 326 (1889). So also will the withdrawal of those allegations, unless they are replaced by others that establish jurisdiction. Thus, when a plaintiff files a complaint in federal court and then voluntarily amends the complaint, courts look to the amended complaint to determine jurisdiction. See Wellness Community-Nat. v. Wellness House, 70 F. 3d 46, 49 (CA7 1995); Boelens v. Redman Homes, Inc., 759 F. 2d 504, 508 (CA5 1985). Here, we have not only an amended complaint, but a final pretrial order that superseded all prior pleadings and “confronted] the subsequent course of the action,” Fed. Rule Civ. Proc. 16(e). See Curtis v. Loether, 415 U. S. 189, 190, n. 1 (1974) (where a claim was not included in the complaint, but was included in the pretrial order, “it is irrelevant that the pleadings were never formally amended” (citing Fed. Rules Civ. Proc. 15(b), 16)); Wilson v. Muckala, 303 F. 3d 1207, 1215 (CA10 2002) (“[C]laims, issues, defenses, or theories of damages not included in the pretrial order are waived even if they appeared in the complaint and, conversely, the inclusion of a claim in the pretrial order is deemed to amend any previous pleadings which did not include that claim”); Syrie v." }, { "docid": "2344324", "title": "", "text": "the complaint, they have included such a claim in the Joint Pretrial Document (Doc. 30), which was incorporated as a binding portion of the' court's Pretrial Order (Doc. 26). See Doc. 27; cf. Expertise, Inc. v. Aetna Finance Co., 810 F.2d 968, 973 (10th Cir.1987) (\"When an issue is set forth in a pretrial order, it is not necessary to amend previously filed pleadings.”). In their reply brief in support of the motion for summary judgment (Doc. 20) at p. 13, the defendants argue that because the plaintiffs’ physical modification claim was not raised in the complaint, the claim should be dismissed for lack of proper pleading. Although the defendants' failure to plead defense has some merit, the court finds that defendants’ waived this argument by failing to assert it in the Joint Pretrial Document. At four separate locations- in that document, the defendants address the merits of the physical modification claim. See ¶ 7 at p. 7; ¶ 4 at p. 10; ¶3 p. 15; p. 16. Nowhere in the document, however, do the defendants' assert their defense of failure to plead. As the parties are aware, the pre-trial document (which is part and parcel of the court’s Pretrial Order) controls what facts and legal issues remain in the litigation. See Fed.R.Civ.P. 16(e); see also Mitchell v. Coffey County Hosp., 903 F.Supp. 1415, 1421 (D.Kan.1995) (\"The pretrial order supersedes the pleadings and controls the subsequent course of litigation.”). If a claim or defense is not raised therein, it is lost. See Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1012 (11th Cir.1982) (\"The failure to include an affirmative defense in the answer or have it included in the pre-trial order of the district court, which supersedes the pleadings, will normally result in waiver of the defense.”); see also Funding Sys. Leasing Corp. v. Pugh, 530 F.2d 91, 96 (5th Cir.1976) (“When the defendant has waived his affirmative defense by failing to allege it in his answer, or have it included in a pre-trial order of the district court that supersedes the pleadings, he cannot revive the defense" }, { "docid": "9436297", "title": "", "text": "In Kelley, the plaintiff filed a Family and Medical Leave Act (FMLA) action against his employer. He alleged in his complaint that he had been fired because he took leave from work to “obtain custody of [his] kids.” Id. at 1203. The employer filed a Rule 12(b)(6) motion to dismiss, arguing that seeking custody of one’s own children was not covered by the FMLA. Id. The plaintiff later filed an amended complaint that omitted that assertion. Id. The employer again moved to dismiss, arguing that the admissions contained in the original complaint were binding. Id. at 1203-04. The district court granted the motion. Id. at 1204. The Seventh Circuit reversed. It first noted that “[i]t is well-established that an amended pleading supersedes the original pleading; facts not incorporated into the amended pleading are considered functus officio.” Id. It then explained that “[i]f certain facts or admissions from the original complaint become functus officio, they cannot be considered by the court on a motion to dismiss the amended complaint. A court cannot resuscitate these facts when assessing whether the amended complaint states a viable claim.” Id. at 1205. Applying these principles, the court concluded: Any facts that Kelley had pleaded in his first two complaints were effectively nullified for 12(b)(6) purposes when he filed his Second Amended Complaint, which did not reference those facts. There was no longer any “confession” in the pleadings on which the district court could rely when reviewing Crosfield’s motion to dismiss the Second Amended Complaint. Id. This approach is consistent with how other courts of appeals have treated the issue. See, e.g., InterGen, 344 F.3d at 144-45; Huey, 82 F.3d at 333; Hibernia Nat’l Bank, 997 F.2d at 101. This is not to say, however, that a party’s assertion of contrary factual positions in the pleadings is without consequence. A superseded pleading may be offered as evidence rebutting a subsequent contrary assertion. See Giannone, 238 F.2d at 547; see also InterGen, 344 F.3d at 144-45; 188 LLC, 300 F.3d at 736; Huey, 82 F.3d at 333; Andrews v. Metro N. Commuter R.R. Co., 882 F.2d 705," }, { "docid": "14526266", "title": "", "text": "order following a final pretrial conference shall be modified only to prevent manifest injustice. An order entered pursuant to Rule 16(e) supersedes the pleadings and controls the subsequent course of litigation. The resulting pretrial order “measures the dimensions of the lawsuit, both in the trial court and on appeal.” Tyler v. City of Manhattan, 118 F.3d 1400, 1403 (10th Cir.1997) (internal quotation marks omitted). “Since the whole purpose of Rule 16 is to clarify the real nature of the dispute at issue, attorneys at a pre-trial conference must make a full and fair disclosure of their views as to what the real issues of the trial will be.” Rios v. Bigler, 67 F.3d 1543, 1549 (10th Cir.1995) (internal quotation marks omitted). In assessing whether an issue was preserved where it was omitted from a pretrial oi'der, we have held that because a party “did not include this issue in the pre-trial report, ... it was not part of the case before the district court.” Gowan v. United States Dep’t of Air Force, 148 F.3d 1182, 1192 (10th Cir.1998). Although the defendants included the statute of limitations as\" an affirmative defense in their answer to the complaint, they did not identify the statute of limitations issue in the pretrial order. Notably, there is a section of the pretrial order with the heading “CONTESTED ISSUES OF LAW,” under which the defendants listed three purely legal questions — but the statute of limitations issue was conspicuously not among them. Aplts’ App. at 48 (capitalization in original). Even more notably, the pretrial order was evidently prepared exclusively by the defendants. See Aplts’ Reply Br. at 3 n. 1 (“No joint pretrial order was prepared in this matter.”); Aplts’ App. at 53 (pretrial order with the signatures of Tintic’s counsel and the judge, but not that of Ms. Youren’s counsel). In McGinnis v. Ingram Equipment Co., 918 F.2d 1491 (11th Cir.1990), the Eleventh Circuit considered facts similar to those present here, where a party raised an issue in its first responsive pleading but then omitted reference to the issue in the pretrial order. The court" }, { "docid": "13914497", "title": "", "text": "(J. Cooke ed.1961)). Accordingly, Plaintiffs claim seeking the resignation of President Clinton presents a nonjusticiable political question and must be DISMISSED on this alternative basis. IY. Tax Claims The First Amended Complaint contains allegations challenging Plaintiffs Tax Court proceedings. Defendants contend that this Court is without subject matter jurisdiction to review Plaintiffs tax liabilities. The Court agrees. The Court of Appeals has exclusive jurisdiction over cases seeking review of Tax Court decisions. 26 U.S.C. § 7482(a)(1). Accordingly, Plaintiffs claims arising out of her petitions before the Tax Court are hereby DISMISSED. V. Plaintiff’s Motions and Ex Parte Applications. In light of the Court’s dismissal of Plaintiffs First Amended Complaint, the Court hereby DENIES Plaintiffs motion for preliminary injunction and remaining motions and ex parte applications as MOOT. CONCLUSION Having carefully considered Plaintiffs Complaint, the record, and applicable law, IT IS HEREBY ORDERED: 1. Plaintiffs claims arising out of her Tax Court proceedings are DISMISSED WITHOUT PREJUDICE to being timely and properly presented to the Court of Appeals. 2. The Federal Defendants’ motion to dismiss is GRANTED, and Plaintiffs remaining claims are hereby DISMISSED AS TO ALL DEFENDANTS. Having carefully considered the First Amended Complaint and applicable law, the Court finds that it appears to a certainty that granting leave to amend would be futile, and accordingly DISMISSES Plaintiffs Complaint WITH PREJUDICE. 3. The Clerk of the Court is directed to enter judgment in Defendants’ favor and to deny as moot all remaining motions and ex parte applications [Docket Nos. 4, 19, 21, 26]. IT IS SO ORDERED. . The Court notes that Plaintiff refers to Governor Bush as the \"State of Taxes Governor.” . In this amended pleading, Plaintiff purports to incorporate her entire original complaint into the first amended complaint. An amended pleading, however, supersedes all previous complaints filed or submitted for filing in an action, so all claims not re-alleged in the amended pleading are deemed to have been waived. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir.1989); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987). Further, Civil Local Rule" }, { "docid": "20593054", "title": "", "text": "the harm he has alleged and that defeat a qualified immunity defense with equal specificity.”). We will “accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir.2012) (internal quotation marks, citation, and alteration omitted). In considering a motion for judgment on the pleadings under Rule 12(c), the court is generally limited to “the contents of the pleadings, including attachments thereto.” Brand Coupon Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir.2014) (internal quotation marks and citation omitted) (considering a Rule 12(b)(6) motion); Fed.R.Civ.P. 12(d) (applying the same standard to consideration of matters outside the pleadings in both the Rule 12(c) and Rule 12(b)(6) contexts). The “pleadings” include the complaint, answer to the complaint, and “if the court orders one, a reply to an answer.” Fed.R.Civ.P. 7(a). However, we agree with Bosarge that we should evaluate his claims with reference to his amended complaint, which supersedes his earlier pleadings. See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (“An amended complaint supersedes the original complaint and renders it of no legal effect unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading.”). We must decide whether, and in what manner, to consider the agents’ affidavits, which were attached to the Defendants’ original motion and were incorporated by reference into their second motion. The district court never ruled on Bosarge’s motion to strike these affidavits, and it is unclear whether the district court considered the affidavits in denying the Defendants’ motion for judgment on the pleadings or for summary judgment. We have held that “[dlocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiffs complaint and are central to her claim.” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir.2004). Given the similarities in the analyses under Rule 12(c) and Rule 12(b)(6), we will apply the same rule to documents attached to the Defendants’ motion for judgment on" }, { "docid": "23275775", "title": "", "text": "Act, 15 U.S.C. § 2301-12. Tr. Vol. VII at 1989. No other mention of the MMWA is made by the plaintiffs in the pretrial order. The omission in the pretrial order of any more specific references to the MMWA is significant, because any such references not contained in the complaint would have been effective to amend the previous pleadings to state a claim under the referenced provisions. Syrie v. Knoll Int’l, 5 Cir.1984, 748 F.2d 304, 308. Both defendant Redman Homes and defendant Republic Homes of Texas raised in the pretrial order the affirmative defense that the “warranty was limited to the obligation to remedy defects or malfunctions upon reasonable written notice, without charge to the Boelens; and liability for consequential damages was excluded.” Tr. Vol. VII at 1993 (Redman), 1997 (Republic). Similarly, the defendants both pleaded as their NINETEENTH affirmative defense in their Second Amended Answer to the plaintiffs’ amended complaint that the plaintiffs’ claims were barred because each defendant, through the warranty, “has ex- eluded liability for consequential and incidental damages and has limited its obligation, if any, to the repair” or replacement of defective parts in the mobile home. Tr. Vol. VI at 1872 (Redman); Tr. Vol. VII at 1900-01 (Republic). The plaintiffs responded to this affirmative defense by asserting that the attempt to limit consequential damages was void under § 2308 of the MMWA, and our examination of the record reveals that the only use the plaintiffs made of § 2308 was to remove the asserted defense. For example, the plaintiffs filed a motion in limine, requesting in part that the defendants be prevented from mentioning at trial any disclaimers in the warranty because such disclaimers were void. Similarly, in the PLAINTIFFS’ OBJECTION TO DEFENDANTS’ EXHIBITS, the plaintiffs objected to the introduction of the warranty document “because it purports to contain limiting or disclaiming language which, as a matter of both federal and state law is totally ineffective”. Tr. Vol. VIII at 2221. Although the plaintiffs are correct in asserting that § 2308 was an issue in the case, that fact alone is insufficient to confer" }, { "docid": "200848", "title": "", "text": "concluded that because Count III was not resolved by final order the original complaint could be amended or supplemented. Id. In the case now before this Court, there has been no final order entered resolving the allegations in the Original Complaint and, accordingly, it could be amended. The critical issue is whether the allegations found in the Amended Complaint are barred by the statutes of limitation or whether they relate back to the filing of the Original Complaint pursuant to Fed.R.Bankr.P. 7015, incorporating by reference Federal Rule of Civil Procedure (Fed.R.Civ.P.)15(c). Fed.R.Civ.P. 15(c) provides that “[a]n amendment of a pleading relates back to the date of the original pleading when ... (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleadings ...” It is intended to allow a plaintiff to set forth facts with greater specificity that may have been unknown at the time the original complaint was filed. See Bank Brussels Lambert v. The Chase Manhattan Bank, N.A., 1999 WL 672302 at *2 (S.D.N.Y.1999) (citations omitted); In re Everfresh Beverages, Inc., 238 B.R. 558, 573 (Bankr.S.D.N.Y.1999); In re Gerardo Leasing, Inc., 173 B.R. 379, 388 (Bankr.N.D.Ill.1994). If, however, “ ‘a plaintiff attempts to interject entirely different conduct or different transactions or occurrences into a case, then relation back is not allowed.’ ” Miller v. American President Lines, Ltd., 1999 WL 1338082 at *3 (N.D.Ohio 1999), quoting F.D.I.C. v. Conner, 20 F.3d 1376, 1385 (5th Cir.1994). The cases make it clear that the important consideration is whether the Original Complaint gave the Defendant adequate notice of what must be defended against in the Amended Complaint. See Stevelman v. Alias Research Inc., 174 F.3d 79, 86 (2d Cir.1999); Holdridge v. Heyer-Schulte Corp. of Santa Barbara, 440 F.Supp. 1088, 1093 (N.D.N.Y.1977) (citations omitted) (noting that the main inquiry under Fed.R.Civ.P. 15(c) is whether adequate notice has been given to the opposing party “by the general fact situation alleged in the original pleading.”); McCarthy v. Associated Clearing Bureau, Inc., 1999 WL 1995185 at" }, { "docid": "20778554", "title": "", "text": "complaint does not include claims asserted by plaintiff Medina-Mercado. Despite the court having allowed plaintiffs to file a second amended complaint “precisely to include Mr. Medina’s allegations”, the second amended complaint only added plaintiff Medina-Mercado to the caption and in the “PARTIES” section. (Docket Nos. 84,134 and 137.) As the co-defendants alleged in their first motion to dismiss on March 2, 2009, “ ‘[i]t is black letter law that ‘[a]n amended complaint, once filed, normally supersedes the antecedent complaint’ and that consequently once an amended complaint is filed ‘the earlier complaint is a dead letter and no longer performs any function in the case.’ ” (Docket No. 132, at 2, quoting Connectu LLC v. Zuckerberg, 522 F.3d 82, 91 (1st Cir.2008)). The second amended complaint also does not include plaintiff Medina-Mercado’s allegations. (Docket No. 137.) Plaintiffs did not specify plaintiff Medina-Mercado’s causes of action, and as the co-defendants contended in their prior motion to dismiss, plaintiffs failed to plead “exactly what [their] claims are ... so that defendants could adequately mount a defense against them.” (Docket No. 132, at 4.) It is not sufficient to simply include plaintiff Medina-Mercado in the caption and the “Parties” section of the second amended complaint. See 5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1326 (footnotes omitted) (“references to prior allegations must be direct and explicit, in order to enable the responding party to ascertain the nature and extent of the incorporation.”). Consequently, plaintiff Medina-Mercado’s claims should be dismissed because the second amended complaint lacks any claims alleged by plaintiff Medina-Mercado. See Kolling v. Am. Power Conversion Corp., 347 F.3d 11, 16 (1st Cir.2003) (“By omitting ‘the common law employee claim’ from the amended complaint, Rolling abandoned it.”); see also 6 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane & Richard L. Marcus, Federal Practice & Procedure § 1476 (3d ed.) (“Once an amended pleading is interposed, the original pleading no longer performs any function in the case.... ”). However, assuming that it was error to eliminate plaintiff Medina-Mercado’s claims, a generous assumption, a determination must be made" }, { "docid": "11552", "title": "", "text": "here to something beyond termination. Aplt.App. at 258. On September 29, 2004, the jury returned a verdict in Newton’s favor. The district court entered judgment accordingly. Plaintiffs appealed. II. Analysis A. Hostile Work Environment Plaintiffs argue that the district court abused its discretion in rejecting their hostile-work-environment jury instruction. Specifically, they challenge the district court’s ruling during the pretrial conference that a claim for hostile work environment was not within the lawsuit’s scope. We agree with the district court. Federal Rule of Civil Procedure 16(c)(1) authorizes a district court to “take appropriate action” during the pretrial conference “with respect to ... the formulation and simplification of the issues, including the elimination of frivolous claims or defenses.” The pretrial order, which recites the action taken at the conference, “measures the dimensions of the lawsuit,” Hullman v. Bd. of Trustees of Pratt Cmty. Coll, 950 F.2d 665, 668 (10th Cir.1991) (internal quotation marks omitted), and “controls] the subsequent course of the action unless modified by a subsequent order,” Fed.R.Civ.P. 16(e). In Wilson v. Muckala, 303 F.3d 1207, 1215-16 (10th Cir.2002), we stated that claims or defenses not contained in the pleadings should normally not appear for the first time in the pretrial order because “[s]uch a practice deprives one’s adversary of fair notice, possibly discovery, and the opportunity for motion practice, and is subject to abuse by those who employ a sporting theory of justice.” Consequently, when a district court confronts such claims or defenses, it must “consider whether to approve or deny what is obviously an attempt to amend the pleadings at a rather late date.” Id. at 1216. Plaintiffs’ age-discrimination claim does not mention “hostile work environment.” Although the complaint alleged that Newton “allowed Rainbolt to create an intimidating, hostile and offensive environment,” Aplt.App. at 34, that allegation was contained in their state-law claim for negligent hiring and retention, and was not incorporated into their age-discrimination claim. Their “First Cause of Action” for “Age Discrimination” incorporated only the allegations “heretofore made,” Aplt. App. at 30, and did not incorporate allegations subsequently made, such as those in the “Fifth Cause of" }, { "docid": "22071849", "title": "", "text": "court and then voluntarily amends the complaint, courts look to the amended complaint to determine jurisdiction. See Wellness Community-Nat. v. Wellness House, 70 F. 3d 46, 49 (CA7 1995); Boelens v. Redman Homes, Inc., 759 F. 2d 504, 508 (CA5 1985). Here, we have not only an amended complaint, but a final pretrial order that superseded all prior pleadings and “confronted] the subsequent course of the action,” Fed. Rule Civ. Proc. 16(e). See Curtis v. Loether, 415 U. S. 189, 190, n. 1 (1974) (where a claim was not included in the complaint, but was included in the pretrial order, “it is irrelevant that the pleadings were never formally amended” (citing Fed. Rules Civ. Proc. 15(b), 16)); Wilson v. Muckala, 303 F. 3d 1207, 1215 (CA10 2002) (“[C]laims, issues, defenses, or theories of damages not included in the pretrial order are waived even if they appeared in the complaint and, conversely, the inclusion of a claim in the pretrial order is deemed to amend any previous pleadings which did not include that claim”); Syrie v. Knoll Int’l, 748 F. 2d 304,308 (CA5 1984) (“[incorporation of a [new] claim into the pre-trial order ... amends the previous pleadings to state [the new] claim”). In these circumstances, we look to the allegations as amended — here, the statement of claims in the final pretrial order — to determine original-source status. The Government objects that this approach risks driving a wedge between the Government and relators. It worries that future relators might decline to “acquiesc[e]” in the Government’s tactical decision to narrow the claims in a case if that would eliminate jurisdiction with respect to the relator. Brief for United States 44. Even if this policy concern were valid, it would not induce us to determine jurisdiction on the basis of whether the relator is an original source of information underlying allegations that he no longer makes. IV Judged according to the principles set forth above, Stone’s knowledge falls short. The only false claims ultimately found by the jury (and hence the only ones to which our jurisdictional inquiry is pertinent to the" }, { "docid": "22465856", "title": "", "text": "of the district court. Richardson v. Henry, 902 F.2d 414, 417 (5th Cir.1990). Once a motion for summary judgment has been filed, a nonmoving party may seek a continuance if she believes that additional discovery is necessary to respond to the motion. Fed.R.Civ.P. 56(f); International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1266 (5th Cir.1991). The nonmoving party must show how the additional discovery will defeat the summary judgment motion. International Shortstop, 939 F.2d at 1267. King did not seek a continuance requesting additional discovery and has failed to show that discovery was necessary to establish any issue of material fact that would preclude summary judgment. See, NGS American, Inc. v. Barnes, 998 F.2d 296, 300 (5th Cir.1993). A plaintiffs verified complaint can be considered as summary judgment evidence to the extent that it comports with the requirements of Fed.R.Civ.P. 56(e). Barker v. Norman, 651 F.2d 1107, 1114-15 (5th Cir.1981). King’s original complaint was verified as true and correct under penalty of perjury and could have been considered as competent summary judgment evidence. However, King subsequently filed two amended complaints which were not so verified. An amended complaint supersedes the original complaint and renders it of no legal effect unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading. Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir.1985). Applying this rule, King’s second amended complaint is the only effective complaint, and because it is unverified, it does not constitute competent summary judgment evidence. In granting summary judgment for Dees, the district court determined, citing King’s deposition, that King failed to produce evidence that Dees presented any testimony before the grand jury, much less false testimony. It held that Dees, as a police investigator, was protected by absolute immunity from civil liability for testimony given in a criminal proceeding. It also noted that King admitted in her deposition that she had no proof that Dees threatened or coerced any witnesses. It is clear after a review of the record that King failed to present any summary judgment evidence in support of her" } ]

[ { "docid": "18675660", "title": "", "text": "BB & T permission to hold a foreclosure sale. See, N.C. Gen.Stat. § 45-21.16 to § 45-21.17. The foreclosure sale was held on December 28, 1995, and the debtors filed their chapter 13 petition five days later, on January 2, 1996, during the statutory upset bid period prescribed by North Carolina law. N.C. Gen.Stat. § 45-21.27. The debtors now want to cure their mortgage default and maintain their regular mortgage payments through their chapter 13 plan pursuant to 11 U.S.C. § 1322(b)(5). BB & T contends that the debtors lost these rights when the foreclosure sale was held and that it is entitled to relief from the automatic stay. The Bankruptcy Code provides that chapter 13 debtors may modify the rights of secured creditors, but not of a creditor “secured only by a security interest in real property that is the debtor’s principal residence];.;]” 11 U.S.C. § 1322(b)(2). However, § 1322(b)(5) further provides that “notwithstanding” § 1322(b)(2), chapter 13 debtors may cure a default and maintain payments during the bankruptcy case of a debt on which the last payment is due after the final plan payment. 11 U.S.C. § 1322(b)(5). Pri- or to the 1994 amendments, the Bankruptcy Code gave no guidance as to when the right to cure a mortgage default that is granted under § 1322(b)(5) terminates, and the cases on this subject were conflicting. In In re DiCello, 80 B.R. 769 (Bankr.E.D.N.C.1987), this court held that expiration of the right to cure a mortgage default under § 1322(b)(5) occurs in North Carolina when the foreclosure sale is held because that is the time at which the mortgagor’s rights were altered. DiCello reasoned that after a foreclosure sale a mortgagor could still redeem the property by paying the entire indebtedness, but a mortgagor could not cure a mortgage default because following a foreclosure sale there is no longer any default to cure. DiCello was decided in the absence of any guidance from Congress as to the point during the foreclosure process when the right to cure a mortgage expires. The amendments made to the Bankruptcy Code in 1994" } ]

[ { "docid": "13952731", "title": "", "text": "160-62; In re Bobo, 246 B.R. 453, 456-59 (Bankr.D.C. 2000); see also Commercial Fed. Mortg. Corp. v. Smith (In re Smith), 85 F.3d 1555, 1558 n. 3 (11th Cir.1996) (dicta). In contrast, the other courts, who have adopted the deed-delivery rule, have usually concluded that § 1322(c)(1) is ambiguous and requires looking at legislative history, that when property is “sold at a foreclosure sale” refers to the entire foreclosure process, and that the debtor’s right to cure survives until title passes to the purchaser (i.e., when the debtor no longer has any interest in the property) under state law, which is typically when a deed is delivered or recorded. See, e.g., In re Jenkins, 422 B.R. 175, 181-82 (Bankr. E.D.Ark.2010); In re Beeman, 235 B.R. 519, 524-26 (Bankr.D.N.H.1999); see also Colon v. Option One Mortg. Corp., 319 F.3d 912, 920-21 (7th Cir.2003) (suggesting that debtor has right to cure until at least expiration of all rights of redemption). This Court agrees with those courts adopting the gavel rule. The language in § 1322(c)(1) is clear and unambiguous. “[T]he preposition ‘at’ in ‘sold at a foreclosure sale’ signifies a discrete event, rather than an ongoing process,” Connors, 497 F.3d at 320, and that discrete event must be the “auction at which the highest bidder purchases the property,” Cain, 423 F.3d at 620; accord Connors, 497 F.3d at 322 (holding that “foreclosure sale” is “ ‘completed’ with the fall of the gavel and the vesting of equitable title in the winning bidder”). “To define the word ‘sold’ as the point at which a deed is transferred to the prevailing bidder subsequent to the date of the auction ... removes the words ‘foreclosure sale’ from the statute.” In re Crichlow, 322 B.R. 229, 234 (Bankr.D.Mass. 2004). Thus, “[t]he language of section 1322(c)(1) is clear and unambiguous in establishing the date of the actual foreclosure sale as the cut-off for curing a ... default under section 1322(b).” McCarn, 218 B.R. at 160. Because there is no ambiguity in the statute, the Court has no need to consult the legislative history. See United States v." }, { "docid": "19074923", "title": "", "text": "(1) a default with respect to, or that gave rise to, a lien on the debtor’s princi pal residence may be cured under paragraph (3) or (5) of subsection (b) until such residence is sold at a foreclosure sale that is conducted in accordance with applicable nonbankruptey law.... 11 U.S.C. § 1322(b)(2), (3), & (5), and (c)(1). Thus, under section 1322(b), a plan may provide for the cure of defaults, but if the default involves a hen on the debtor’s principal residence, under section 1322(c)(1), the cure may only be made prior to the time that the property is sold at a foreclosure sale conducted in accordance with applicable nonbank-ruptey law. The language of section 1322(c)(1) is clear and unambiguous in establishing the date of the actual foreclosure sale as the cut-off for curing a mortgage default under section 1322(b), and supports the bankruptcy court’s conclusion that the debtors had no right to cure their default to the Credit Union because their home had been sold at a foreclosure sale prior to the time that they filed chapter 13. In re Sims, 185 B.R. 853, 864-66 (Bankr.N.D.Ala.1995) (section 1322(c)(1) clearly and unambiguously sets a bright-line date, the date of the actual foreclosure sale, as the cut-off to cure a default under a mortgage), cited with approval in Commercial Fed. Mortgage Corp. v. Smith (In re Smith), 85 F.3d 1555, 1558 n. 3 (11th Cir.1996); accord Cottrell v. United States (In re Cottrell), 213 B.R. 378, 381 (Bankr.M.D.Ala.1996); Krawczyk v. United States (In re Krawczyk), 201 B.R. 589, 591 (Bankr.N.D.Ga.1996); In re Little, 201 B.R. 98, 108 (Bankr.D.N.J.1996); In re Ziyambe, 200 B.R. 790, 799 (Bankr.D.N.J.1996); In re Blair, 196 B.R. 477, 480 (Bankr.E.D.Ark.1996); see In re Simmons, 202 B.R. 198, 202-203 (Bankr.D.N.J.1996) (“[I]t is reasonable to assume that Congress used the term foreclosure sale in its customary sense[,]” i.e., the date of the actual sale.); accord In re Hric, 208 B.R. 21, 25 (Bankr.D.N.J.1997). Finding that a debtor’s ability to cure a mortgage default under section 1322(b) is terminated under section 1322(c)(1) on the date of a foreclosure sale is" }, { "docid": "18547493", "title": "", "text": "adopting the date of the foreclosure sale as the termination date of the debtor’s right to cure arrearages on the mortgage. The Sims Court held that the debtor lost the ability to reinstate the mortgage, decelerate the indebtedness and resume payments according to the mortgage contract’s pre-default terms under § 1322(b). The Sims Court explained that, as a matter of statutory construction, legislative history will not be considered unless the language of the statute is ambiguous. Id. at 863-64 (citing United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240-41, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989)). The Sims Court found that the phrase “until such residence is sold at a foreclosure sale” was clear and unambiguous. Id. at 864. The Sims Court, therefore, did not address any conflict between the statutory language of Section 1322 and that section’s legislative history. In Sims, the bankruptcy court turned to state law to determine when the property is deemed “sold at a foreclosure sale that is conducted in accordance with applicable nonbankruptey law”, Id. at 865-866, but noted that § 1322(c)(1) abrogated the need of courts to analyze the state property rights of the Debtor in the property to determine whether a cure is available. Id. at 866. The Sims court concluded that after foreclosure sale, the only way the debtor could “cure” the default was to exercise the statutory right of redemption through a lump sum payment which includes the principal, interest and certain other charges as mandated by Alabama state law. Id. at 866-867. See also In re Jaar, 186 B.R. 148 (Bankr.M.D.Fla.1995) (applying Florida law, holding mortgagor could no longer cure default and reinstate mortgage under § 1322(c)(1) where certificate of sale is filed by the clerk in the state court before the filing of the Chapter 13 petition); In re Smith, 85 F.3d 1555, 1561 and fn. 3 (11th Cir.1996) (applying pre-Re-form Act § 1322(b) and Alabama law, holding that debtor could no longer cure default and reinstate mortgage under Chapter 13 plan following foreclosure sale and opining that result would be the same under new" }, { "docid": "14139325", "title": "", "text": "In re Ziyambe, 200 B.R. 790 (Bankr. D.N.J.1996); In re Little, 201 B.R. 98 (Bankr.D.N.J.1996); In re Simmons, 202 B.R. 198 (Bankr.D.N.J.1996); In re Hric, 208 B.R. 21 (Bankr.D.N.J.1997). By contrast, two other courts have decided that a chapter 13 debtor may cure and reinstate a residential mortgage until the actual delivery of a sheriff’s deed to the successful purchaser. Matter of Ross, 191 B.R. 615 (Bankr.D.N.J.1996); In re Macavia, No. 95-34118 (unpublished)(Bankr.D.N.J.1995). In the instant case Ford urges reasoning under the Ziyambe line of cases and the debtors argue that the Ross progeny is apposite. In In re Ziyambe, the debtors defaulted on their home mortgage and the property was auctioned at a foreclosure sale. In re Ziyambe, 200 B.R. at 791. On the day immediately following the auction, the debtors filed a Chapter 13 petition and sought to cure the default under their Chapter 13 plan. Id. The court determined that the debtors’ right to cure terminated at the completion of the auction sale relying on its interpretation of the legislative history of the subsection and New Jersey foreclosure law. In its examination of the legislative history of § 1322(c)(1), the court reviewed caselaw and Congressional testimony and decided that the 1994 Reform Act had codified cases which adopted a “bright line” test to cut off the right to cure at the time of the auction sale. Id. at 798. The court relied on the analysis in In re Sims, 185 B.R. 853 (Bankr. N.D.Ala.1995), which held that although a court is compelled to rely on state law to determine when property is sold at a foreclosure sale, it does not need to analyze the state property rights of a debtor in property to determine whether a cure is available. Id. at 798. The Sims court concluded that for chapter 13 purposes, the variations of the “laws of different states to govern the effect of an acceleration and its curability” would defeat Congress’ preemptive bankruptcy powers to provide a “uniform national reme dy to adjust the debts of individuals” as an alternative to a chapter 7 liquidation. Id." }, { "docid": "19074927", "title": "", "text": "the debtor to protect the right to cure), cert. denied, 474 U.S. 849, 106 S.Ct. 144, 88 L.Ed.2d 119 (1985). The debtors argue that we should disregard the plain language of section 1322(c)(1) and look to its legislative history. This approach is not appropriate under the well-established rule of statutory construction that when the language of a statute is clear the court should not look to legislative history. See, e.g., Connecticut Nat’l Bank v. Germain, 508 U.S. 249, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992); United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240-41, 109 S.Ct. 1026, 1029-30, 103 L.Ed.2d 290 (1989). Some courts have held that section 1322(c)(1) is ambiguous, requiring an analysis of when property is “sold” or when the sale is “complete” under applicable non-bankruptcy law. See, e.g., Christian v. Citibank, F.S.B., 214 B.R. 352, 355-56 (N.D.Ill.1997) (state-law approach applied); McEwen v. Federal Nat’l Mortgage Ass’n, 194 B.R. 594, 596 (N.D.Ill.1996) (without addressing issue, court looks to Illinois law to determine when sale occurs); In re Downing, 212 B.R. 459, 462 (Bankr.D.N.J.1997); In re Rambo, 199 B.R. 747, 751 (Bankr.W.D.Okla.1996) (state-law approach applied); In re Barham, 193 B.R. 229, 232 (Bankr.E.D.N.C.1996) (same); In re Ross, 191 B.R. 615, 618 (Bankr.D.N.J.1996) (same); In re Jaar, 186 B.R. 148, 152 & n. 4 (Bankr.M.D.Fla.1995) (same); 8 Collier on Bankruptcy ¶ 1322.15 (Lawrence P. King ed., 15th ed. rev. 1997) (same). As noted above, we do not agree that section 1322(c)(1) is ambiguous. But, even if we were to turn to Wyoming law to determine when the sale occurred, we find that the bankruptcy court did not err in concluding that the property was “sold” or the sale was “complete” on the date of the foreclosure sale. The Wyoming courts have not directly addressed when property is “sold” at a foreclosure sale. However, in Wyoming, there is no requirement that a foreclosure sale be confirmed or approved by a court. Thus, on the date of the foreclosure sale, the substantive rights of the parties are fixed: the mortgagor retains legal title until the expiration of the three-month redemption" }, { "docid": "4621737", "title": "", "text": "§ 101 et seq., unless the context requires otherwise. . Rambo, 196 B.R. at 183-186. . Rambo, 196 B.R. at 186-187. . Rambo, 196 B.R. at 188. . Rambo, 196 B.R. at 184-185. . Rambo, 196 B.R. at 188, n. 14. . Debtors’ petition herein was filed after the foreclosure sale of their property was held, but before the hearing on confirmation of that sale. . Sims, 185 B.R. at 864. . 5 King, Collier on Bankruptcy ¶ 1322.14A, pgs. 1322.49-51, (15th ed. 1995). . References in Collier to the legislative history with regard to § 1322(c)(1) are in each instances to remarks of Rep. Jack Brooks, and may be found at 140 Cong.Rec.H 10769 (daily ed. October 4, 1994). . United States v. Ron Pair, 489 U.S. 235, 240-41, 109 S.Ct. 1026, 1029-30, 103 L.Ed.2d 290 (1989). . Sims, 185 B.R. at 855. . Sims, 185 B.R. at 866. . Rambo, 196 B.R. at 186-188. . Accord, see McEwen v. Federal Nat. Mortg. Ass'n., supra (confirmation); In re Blair, 196 B.R. 477 (Bankr.E.D.Ark.1996) (confirmation); In re Barham, supra (ten day upset bid period); In re Crime Free, 196 B.R. 116 (Bankr.E.D.Ark. 1996) (confirmation); Matter of Ross, 191 B.R. 615 (Bankr.D.N.J.1996) (delivery of sheriff’s deed)." }, { "docid": "19074926", "title": "", "text": "time providing certain protections to mortgagees. Prior to any foreclosure sale, debtors must be given notice of the sale. By the time of the sale, therefore, the debtors have had a reasonable opportunity to retain their residence by filing chapter 13 and proposing a plan to cure any defaults under their mortgage. Cottrell, 213 B.R. at 381; Simmons, 202 B.R. at 204; see Smith, 85 F.3d at 1560 (in pre-section 1322(c)(1) case, court found that bright-line test setting foreclosure sale as the cut-off date to cure a mortgage debt under section 1322(b) struck a “balance between the rights of a debtor ... and the legitimate economic interest in encouraging lenders to invest in home mortgages”); Federal Land Bank v. Glenn (In re Glenn), 760 F.2d 1428, 1435 (6th Cir.) (pre-section 1322(c)(1) ease finding that terminating cure rights under section 1322(b) on the date of foreclosure sale was a necessary compromise made to protect creditors, and also takes into account the fact that the debtor has had ample notice of foreclosure sale so as to allow the debtor to protect the right to cure), cert. denied, 474 U.S. 849, 106 S.Ct. 144, 88 L.Ed.2d 119 (1985). The debtors argue that we should disregard the plain language of section 1322(c)(1) and look to its legislative history. This approach is not appropriate under the well-established rule of statutory construction that when the language of a statute is clear the court should not look to legislative history. See, e.g., Connecticut Nat’l Bank v. Germain, 508 U.S. 249, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992); United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240-41, 109 S.Ct. 1026, 1029-30, 103 L.Ed.2d 290 (1989). Some courts have held that section 1322(c)(1) is ambiguous, requiring an analysis of when property is “sold” or when the sale is “complete” under applicable non-bankruptcy law. See, e.g., Christian v. Citibank, F.S.B., 214 B.R. 352, 355-56 (N.D.Ill.1997) (state-law approach applied); McEwen v. Federal Nat’l Mortgage Ass’n, 194 B.R. 594, 596 (N.D.Ill.1996) (without addressing issue, court looks to Illinois law to determine when sale occurs); In re Downing, 212 B.R. 459," }, { "docid": "13984298", "title": "", "text": "the preposition “at” in the phrase “sold at a foreclosure sale” might signify the intention of Congress to situate the termination point at a defined and certain event, i.e. the foreclosure auction. On the other hand, the phrase “that is conducted in accordance with applicable non-bankruptcy law” modifies “foreclosure sale,” and requires resort to state law to determine the procedural regularity of the actual sale. The term “sold” might refer to the process employed in each state to complete a foreclosure sale. We accept the latter construction, i.e. that a “final” sale, as determined by applicable state law, controls as the termination point for the right to cure default under § 1322(c)(1), for several reasons. First, the legislative history confirms that a debtor may cure home mortgage defaults “at least through completion of a foreclosure sale under applicable non-bankruptcy law.” H.R.Rep. 103-835, 103rd Cong., 2nd Sess. 52 (Oct. 4, 1994) U.S. Code Cong. & Admin. News 1994 pp. 3340, 3361; 140 Cong. Rec. 10752-01, 10769 (Oct. 4, 1994). (emphasis added). Second, other courts have construed the section in this way, including In re Sims, 185 B.R. at 866 (The cut-off point is the execution of the foreclosure deed, because “Alabama law treats the foreclosure sale as complete when the foreclosure deed is executed.”) and In re Jaar, 186 B.R. 148, 154 (Bankr.M.D.Fla.1995) (The filing of the certificate of sale, rather than the acceptance of the high bid at the public bidding, marks the conclusion of the foreclosure sale under Florida law, and therefore serves as the termination point for curing default under § 1322(c)(1)). The question thus becomes what is a “final” sale under New Jersey foreclosure law. Under New Jersey law, to foreclose on a mortgage, the mortgagee must file an action to foreclose upon the mortgage, N.J.S.A. § 2A:50-2, obtain a judgment of foreclosure and a writ of execution directing the sale of the mortgaged property, N.J.S.A. § 2A:50-36, and sell the property, through the sheriff or other authorized person, to the highest bidder. N.J.S.A. § 2A:50-37. Pursuant to state court rule, the sheriff is directed to “deliver" }, { "docid": "6002747", "title": "", "text": "mortgage contract’s pre-default terms under § 1322(b). The Sims Court explained that, as a matter of statutory construction, legislative history will not be considered unless the language of the statute is ambiguous. Id. at 863-64 (citing United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 249-41, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989)). The Sims Court found that the phrase “until such residence is sold at a foreclosure sale” was clear and unambiguous. Id. at 864. The Sims Court, therefore, did not address conflict between the statutory language of Section 1322 and that section’s legislative history. In Sims, the bankruptcy court turned to state law to determine when the property is deemed “sold at a foreclosure sale that is conducted in accordance with applicable non-bankruptcy law”, Id. at 865-866, but noted that § 1322(c)(1) abrogated the need of courts to analyze the state property rights of the Debtor in the property to determine whether a cure is available. Id. at 866. The Sims court concluded that after foreclosure sale, the only way the debtor could “cure” the default was to exercise the statutory right of redemption through a lump sum payment which includes the principal, interest and certain other charges as mandated by Alabama state law. Id. at 866-867. See also In re Jam, 186 B.R. 148 (Bankr.M.D.Fla.1995) (applying Florida law, holding mortgagor could no longer cure default and reinstate mortgage under § 1322(c)(1) where certificate of sale is filed by the clerk in the state court before the filing of the Chapter 13 petition); In re Smith, 85 F.3d 1555, 1561 and fn. 3 (11th Cir.1996) (applying pre-Re-form Act § 1322(b) and Alabama law, holding that debtor could no longer cure default and reinstate mortgage under Chapter 13 plan following foreclosure sale and opining that result would be the same under new Section 1322(c)(1)). The Sims court, in finding that the Reform Act had, in effect, codified eases which had adopted a “bright line” test to cut off the right to cure, noted: In Grubbs v. Houston First Am. Savs. Ass’n, 730 F.2d 236, 241-42 n. 9" }, { "docid": "14139330", "title": "", "text": "Little, 201 B.R. at 107. In In re Hric, the court agreed with the Simmons analysis declaring that the phrase “conducted in accordance with applicable nonbankruptcy law” modifies the term “foreclosure sale” which simply requires that the sale be conducted in a procedurally correct manner. In re Hric, 208 B.R. at 25. Thus, the court’s interpretation of “sold at foreclosure sale” was examined relying on the language of N.J. Court R. 4:65-5 which repeatedly refers to the event of the auction as the “sale” and distinguishes the “sale” from “delivery of the deed”. Id. Accordingly, the court held that the sheriff’s sale as the termination date to cure a default. While this court is mindful of the arguments set forth in Ziyambe, Simmons, Little, and Hric, it respectfully chooses instead to follow the reasoning of in Matter of Ross, 191 B.R. at 615, the first of the published opinions within this district to address the meaning of § 1322(c)(1). In Ross, the court found that a debtor’s right to cure a default and reinstate a mortgage terminates upon the actual delivery of the sheriffs deed to the successful purchaser. Id. at 621. First, the court distinguished the rights of a debtor to cure a default under § 1322(c)(1) from the right of redemption held by a mortgagor under state law. Id. at 617-18. The Ross court noted that a debtor’s right to cure a default under § 1322(c)(1) terminates when the property is “sold at foreclosure sale.”. Id. (citing Matter of Roach, 824 F.2d at 1372, n. I) . On the other hand, the debtor’s state law right of redemption, to the extent that it exists when a bankruptcy petition is filed, extends for sixty (60) days beyond the state law time frame by operation of 11 U.S.C. § 108(b) upon the filing of a petition . Id. Concurring with the proposition in- In re Sims that Congress intended to establish a “bright line” point of termination for a debt- or’s right to cure, the court reviewed the language of § 1322(c)(1) to determine when that time occurred. Id. Finding" }, { "docid": "19733549", "title": "", "text": "a matter of policy. In In re McCarn, 218 B.R. 154, 160 (10th Cir. BAP 1998), a bankruptcy appellate panel in the Tenth Circuit acknowledged that the foreclosure sale, in contrast to the delivery of the deed, must be preceded by notice to the debtor. Such notice affords the debtor ample opportunity to protect his or her interests by filing a bankruptcy petition before the foreclosure sale and exercising the right to cure under § 1322(c)(1). See also Simmons, 202 B.R. at 203-04. To the extent that debtors’ rights are not sufficiently protected, states remain free to provide them with additional post-sale remedies by virtue of § 108(b). See, e.g., Justice v. Valley Nat’l Bank, 849 F.2d 1078, 1082 (8th Cir.1988). Meanwhile, the gavel rule protects purchasers by avoiding an interpretation that turns § 1322(c)(1) into a federal vehicle for divesting them of property rights acquired at foreclosure sales. Increased uncertainty of ownership may also translate to lower foreclosure bids, a factor that New Jersey courts consider when confirming foreclosure sales. See N.J. Ct. R. 4:65-5 (permitting court to confirm sale if it “is satisfied that the real estate was sold at its highest and best price at the time of the sale”). IV. We, therefore, hold that under 11 U.S.C. § 1322(c)(1), a Chapter 13 debtor does not have the right to cure a default on a mortgage secured by the debtor’s principal residence between the time the residence is sold at a foreclosure sale and the time the deed is delivered. We will, accordingly, affirm. . Connors v. Deutsche Bank Nat’l Trust Co., No. Civ. A. 05-2236, 2006 WL 1722609, at *2 (D.N J. June 20, 2006); In re Maricic, No. 02-37500, slip op. (Bankr.D.N.J.2002); In re Mangano, 253 B.R. 339, 344-45 (Bankr.D.N.J.2000); In re Veltre, No. 99-40669, 2000 Bankr.LEXIS 1409, at *4-6 (Bankr.D.N.J. May 31, 2000); In re Hric, 208 B.R. 21, 26 (Bankr.D.N.J. 1997); In re Simmons, 202 B.R. 198, 203, 205-06 (Bankr.D.N.J.1996); In re Ziyambe, 200 B.R. 790, 794 (Bankr.D.N.J.1996); In re Little, 201 B.R. 98, 105 (Bankr.1996). The Sixth Circuit has also adopted this" }, { "docid": "18547475", "title": "", "text": "under the plan is due. In that case, the Third Circuit held that subsequent to foreclosure judgment, a chapter 13 debtor cannot provide for a mortgage debt by paying the full amount of the allowed secured claim in accordance with Bankruptcy Code section 1325(a)(5), because doing so would constitute an impermissible modification of the mortgage holder’s right to immediate payment under section 1322(b)(2) of the Bankruptcy Code. Id. (emphasis added). In interpreting the above legislative history, this Court must address two issues: (1) the meaning of section 1322(c)(l)’s phrase “until such residence is sold at a foreclosure sale”; and (2) whether New Jersey “provides the debtor more extensive ‘cure’ rights (through, for example, some later redemption period),” and if so, what are those rights that “the debtor would continue to enjoy ... in bankruptcy.” The Court notes that the issue presently before this Court was recently addressed by two bankruptcy courts in the District of New Jersey. See In re Ross, 191 B.R. 615 (Bankr.D.N.J.1996) (Wizmur, J.) and In re Macavia, No. 95-34118 (Bankr.D.N.J. date decided October 19, 1995) (Ferguson, J.) (unpublished opinion). The Ross and Macavia courts held that a New Jersey homeowner may under Section 1322(e)(1) provide in his or her Chapter 13 plan for cure of any defaults and reinstatement of the mortgage on his primary residence following the entry of a foreclosure judgment and conduct of a sheriffs sale until the actual delivery of the sheriffs deed to the successful purchaser. See In re Ross, 191 B.R. at 621 (“We conclude that a New Jersey foreclosure sale is complete when the sheriff delivers the deed to the successful purchaser. Therefore, in New Jersey, under § 1322(c)(1), a Chapter 13 debtor may cure a default and reinstate a residential mortgage following the entry of a foreclosure judgment and the conduct of a sheriffs sale, until the actual delivery of a sheriffs deed to the successful purchaser”) See In re Macavia, id. at 5 (“[A]t the time of the filing the Debtors retained an interest in the property in that the deed had not been delivered under New" }, { "docid": "13952730", "title": "", "text": "debtor’s principal residence is permitted but only “until such residence is sold at a foreclosure sale that is conducted in accordance with applicable nonbankruptcy law.” 11 U.S.C. § 1322(c)(1). Courts are split on when a “residence is sold at a foreclosure sale,” with many adopting the “gavel rule” and others adopting the “deed-delivery rule.” The courts adopting the gavel rule, including most of the courts of appeals and the BAPs that have considered § 1322(c)(1), conclude that the statutory language is unambiguous, that when property is “sold at a foreclosure sale” refers to a specific event and not to a multistep process, and that this provision cuts off a debtor’s right to cure a default at the conclusion of the foreclosure auction, rather than a later point in time. See, e.g., In re Connors, 497 F.3d 314, 319-21 (3d Cir.2007); Cain v. Wells Fargo Bank, N.A. (In re Cain), 423 F.3d 617, 620-21 (6th Cir.2005); TD Bank, N.A. v. LaPointe (In re LaPointe), 505 B.R. 589, 597 (1st Cir. BAP 2014); McCarn, 218 B.R. at 160-62; In re Bobo, 246 B.R. 453, 456-59 (Bankr.D.C. 2000); see also Commercial Fed. Mortg. Corp. v. Smith (In re Smith), 85 F.3d 1555, 1558 n. 3 (11th Cir.1996) (dicta). In contrast, the other courts, who have adopted the deed-delivery rule, have usually concluded that § 1322(c)(1) is ambiguous and requires looking at legislative history, that when property is “sold at a foreclosure sale” refers to the entire foreclosure process, and that the debtor’s right to cure survives until title passes to the purchaser (i.e., when the debtor no longer has any interest in the property) under state law, which is typically when a deed is delivered or recorded. See, e.g., In re Jenkins, 422 B.R. 175, 181-82 (Bankr. E.D.Ark.2010); In re Beeman, 235 B.R. 519, 524-26 (Bankr.D.N.H.1999); see also Colon v. Option One Mortg. Corp., 319 F.3d 912, 920-21 (7th Cir.2003) (suggesting that debtor has right to cure until at least expiration of all rights of redemption). This Court agrees with those courts adopting the gavel rule. The language in § 1322(c)(1) is clear" }, { "docid": "19733550", "title": "", "text": "4:65-5 (permitting court to confirm sale if it “is satisfied that the real estate was sold at its highest and best price at the time of the sale”). IV. We, therefore, hold that under 11 U.S.C. § 1322(c)(1), a Chapter 13 debtor does not have the right to cure a default on a mortgage secured by the debtor’s principal residence between the time the residence is sold at a foreclosure sale and the time the deed is delivered. We will, accordingly, affirm. . Connors v. Deutsche Bank Nat’l Trust Co., No. Civ. A. 05-2236, 2006 WL 1722609, at *2 (D.N J. June 20, 2006); In re Maricic, No. 02-37500, slip op. (Bankr.D.N.J.2002); In re Mangano, 253 B.R. 339, 344-45 (Bankr.D.N.J.2000); In re Veltre, No. 99-40669, 2000 Bankr.LEXIS 1409, at *4-6 (Bankr.D.N.J. May 31, 2000); In re Hric, 208 B.R. 21, 26 (Bankr.D.N.J. 1997); In re Simmons, 202 B.R. 198, 203, 205-06 (Bankr.D.N.J.1996); In re Ziyambe, 200 B.R. 790, 794 (Bankr.D.N.J.1996); In re Little, 201 B.R. 98, 105 (Bankr.1996). The Sixth Circuit has also adopted this view. See In re Cain, 423 F.3d 617, 619 (6th Cir.2005). . Chisholm v. Cendant Mortgage Corp., No. Civ. 04-6398, 2005 WL 1522232, at *1 (D.N.J. June 27, 2005); In re Randall, 263 B.R. 200, 201 (D.N.J.2001); In re Downing, 212 B.R. 459, 467 (Bankr.D.N.J.1997); In re Ross, 191 B.R. 615, 621 (Bankr.D.N.J.1996); In re Macavia, No. 95-34118, 1995 Bankr.LEXIS 2103, at *7-8 (Bankr.D.N.J.1995). .Connors asks us to consider Wright v. Union Central Life Insurance Co., 304 U.S. 502, 58 S.Ct. 1025, 82 L.Ed. 1490 (1938), a case in which the Supreme Court upheld the constitutionality of a provision of the Bankruptcy Code that extended any state-law right of redemption that a debtor possessed at the time he or she filed a petition in bankruptcy. That holding is inapplicable here because § 1322(c)(1) does not purport to extend any state-law right; it simply recognizes a federal right to cure that extends until the property is “sold at a foreclosure sale.\" The provision that did extend Connors's state-law right to redeem, § 108(b), expired 60 days" }, { "docid": "11665927", "title": "", "text": "their earlier intent, in 1994, Congress amended section 1322 to add new subsection (c). Under new subsection 1322(c)(1), the debtor may only cure the default until such time as the residence is sold at a foreclosure sale. Thus, the Bankruptcy Reform Act of 1994 clarified to what point in Chapter 13 cases a debtor may cure a default in a residential mortgage. This amendment did not change the rule in most circuits, including the Eighth Circuit, but had the effect of overruling Roach in the Third Circuit. Thus, in Arkansas, a debtor’s right to cure a default of a mortgage until the time of “sale” remained the same before and after passage of the Bankruptcy Reform Act of 1994. The passage of this section did not change the law that the debtor had the right to cure until the time of sale. For purposes of section 1322(b)(2), the security interest taken by the mortgagee survives. In re Pinto, 191 B.R. 610 (Bankr.D.N.J.1996). The term “default” as used in both subsections 1322(b) and 1322(c) necessarily encompasses the time past entry of a judgment of foreclosure because the statute provides for cure until the residence is actually sold at a foreclosure sale. To argue that a mortgage cannot be cured beyond entry of the judgment has the effect of nullifying section 1322(c)(1). For purposes of sections 1322(b)(5) and 1322(c)(1), the fact that the debt merged into the judgment under state law does not obviate the debtor’s right to cure the default of the mortgage obligations. That which is to be cured under the plan is not the judgment, as argued by the United States, but, rather, the default in the mortgage, despite entry of the foreclosure judgment. In re Pinto, 191 B.R. 610 (Bankr.D.N.J.1996); Johns v. Rousseau Mortgage Corp. (In re Johns), 37 F.3d 1021 (3d Cir. 1994). Determination of whether the sale is final is made under state law. In re Ross, 191 B.R. 615 (Bankr.D.N.J.1996) (“We accept the latter construction, i.e., that a ‘final’ sale, as determined by applicable state law, controls as the termination point for the right to" }, { "docid": "14139324", "title": "", "text": "1322(c)(1). The legislative history suggests that the debtor may cure a residential mortgage default “at least through completion of a foreclosure sale under applicable nonbankruptey law.” 140 CONG. REC. 110,-769 (daily ed. October 4, 1994)(remarks of Rep. Jack Brooks)(emphasis added). Thus, the statutory language and the legislative history defer to state law to answer the question concerning the time at which the foreclosure sale has been completed. Although the addition of § 1322(c)(1) was intended to establish clear guidelines as to the termination of a debtor’s right to cure a default on a home mortgage, the conflicting decisions in the district of New Jersey alone indicate that although this may have been Congress’ intent, such was not the result. B. Survey of Caselaw The bankruptcy courts in the district of New Jersey are split in their interpretation of this subsection. Four cases have held that a foreclosure proceeding conducted in accordance with New Jersey law terminates a debtor’s right to cure a mortgage when the hammer goes down at the time of the auction sale. In re Ziyambe, 200 B.R. 790 (Bankr. D.N.J.1996); In re Little, 201 B.R. 98 (Bankr.D.N.J.1996); In re Simmons, 202 B.R. 198 (Bankr.D.N.J.1996); In re Hric, 208 B.R. 21 (Bankr.D.N.J.1997). By contrast, two other courts have decided that a chapter 13 debtor may cure and reinstate a residential mortgage until the actual delivery of a sheriff’s deed to the successful purchaser. Matter of Ross, 191 B.R. 615 (Bankr.D.N.J.1996); In re Macavia, No. 95-34118 (unpublished)(Bankr.D.N.J.1995). In the instant case Ford urges reasoning under the Ziyambe line of cases and the debtors argue that the Ross progeny is apposite. In In re Ziyambe, the debtors defaulted on their home mortgage and the property was auctioned at a foreclosure sale. In re Ziyambe, 200 B.R. at 791. On the day immediately following the auction, the debtors filed a Chapter 13 petition and sought to cure the default under their Chapter 13 plan. Id. The court determined that the debtors’ right to cure terminated at the completion of the auction sale relying on its interpretation of the legislative history of" }, { "docid": "19733551", "title": "", "text": "view. See In re Cain, 423 F.3d 617, 619 (6th Cir.2005). . Chisholm v. Cendant Mortgage Corp., No. Civ. 04-6398, 2005 WL 1522232, at *1 (D.N.J. June 27, 2005); In re Randall, 263 B.R. 200, 201 (D.N.J.2001); In re Downing, 212 B.R. 459, 467 (Bankr.D.N.J.1997); In re Ross, 191 B.R. 615, 621 (Bankr.D.N.J.1996); In re Macavia, No. 95-34118, 1995 Bankr.LEXIS 2103, at *7-8 (Bankr.D.N.J.1995). .Connors asks us to consider Wright v. Union Central Life Insurance Co., 304 U.S. 502, 58 S.Ct. 1025, 82 L.Ed. 1490 (1938), a case in which the Supreme Court upheld the constitutionality of a provision of the Bankruptcy Code that extended any state-law right of redemption that a debtor possessed at the time he or she filed a petition in bankruptcy. That holding is inapplicable here because § 1322(c)(1) does not purport to extend any state-law right; it simply recognizes a federal right to cure that extends until the property is “sold at a foreclosure sale.\" The provision that did extend Connors's state-law right to redeem, § 108(b), expired 60 days after he filed his petition. . Cf. NJ.S.A. § 2A:61-16 (allowing purchaser relief from bid if defect of title renders title unmarketable, or if title is subject to lien or encumbrance). . In rare circumstances, as when the mortgagor has received insufficient notice of foreclosure proceedings, the right to redeem may be asserted even after delivery of the deed. Mercury Capital Corp. v. Freehold Office Park, Ltd., 363 N.J.Super. 235, 832 A.2d 369, 378 n. 10 (N.J.Sup.Ct. Ch. Div.2003) (citing cases relying on the inherent equity power of the Chancery Court). An equity of redemption that continues beyond the delivery of the deed would undermine any suggestion that the delivery of the deed is the only true \"point of finality’' in the foreclosure process. Cf. Chisholm, 2005 WL 1522232, at *5. A \"finality\" requirement, moreover, has no basis in the language of the statute. . Some courts suggest that § 108(b) extends the state-law grace period by an additional 60 days. See, e.g., Ross, 191 B.R. at 617-18. We are bound by our holding in" }, { "docid": "19074928", "title": "", "text": "462 (Bankr.D.N.J.1997); In re Rambo, 199 B.R. 747, 751 (Bankr.W.D.Okla.1996) (state-law approach applied); In re Barham, 193 B.R. 229, 232 (Bankr.E.D.N.C.1996) (same); In re Ross, 191 B.R. 615, 618 (Bankr.D.N.J.1996) (same); In re Jaar, 186 B.R. 148, 152 & n. 4 (Bankr.M.D.Fla.1995) (same); 8 Collier on Bankruptcy ¶ 1322.15 (Lawrence P. King ed., 15th ed. rev. 1997) (same). As noted above, we do not agree that section 1322(c)(1) is ambiguous. But, even if we were to turn to Wyoming law to determine when the sale occurred, we find that the bankruptcy court did not err in concluding that the property was “sold” or the sale was “complete” on the date of the foreclosure sale. The Wyoming courts have not directly addressed when property is “sold” at a foreclosure sale. However, in Wyoming, there is no requirement that a foreclosure sale be confirmed or approved by a court. Thus, on the date of the foreclosure sale, the substantive rights of the parties are fixed: the mortgagor retains legal title until the expiration of the three-month redemption period set forth in Wyoming Statutes Ann. § 1-18-103(a), and the mortgagee obtains a lien on the property that, by operation of law, converts into legal title at the expiration of the redemption period. Wyo. Stat. Ann. § 1-18-102 (“The certificate [of purchase] shall state that the purchaser is entitled to a deed for the property at the expiration of the period of redemption, unless the property is redeemed prior to that date as provided by law.”) & § 1-18-110 (a deed conveys to the grantee all the title of the mortgagor); First Southwestern Fin. Servs. v. Laird, 882 P.2d 1211, 1216 (Wyo.1994) (purchaser obtains hen and mortgagor retains legal title during redemption period); see Federal Land Bank v. Miller, 730 P.2d 122 (Wyo.1986) (the purchaser of property at a foreclosure sale cannot later contest hen priorities). As such, the property was “sold” or the sale was “complete” on the date of the foreclosure sale. The debtors argue that the foreclosure sale was not complete on the date of the foreclosure sale because they had" }, { "docid": "6002729", "title": "", "text": "to immediate payment under section 1322(b)(2) of the Bankruptcy Code. Id. (emphasis added). In interpreting the above legislative history, this Court must address two issues: (1) the meaning of section 1322(e)(l)’s phrase “until such residence is sold at a foreclosure sale”; and (2) whether New Jersey “provides the debtor more extensive ‘cure’ rights (through, for example, some later redemption period),” and if so, what are those rights that “the debtor would continue to enjoy ... in bankruptcy.” The Court notes that the issue presently before this Court was recently addressed by two bankruptcy courts in the District of New Jersey. See In re Ross, 191 B.R. 615 (Bankr.D.N.J.1996) (Wizmur, J.) and In re Macavia, No. 95-34118 (Bankr.D.N.J. date decided October 19,1995) (Ferguson, J.) (unpublished opinion). The Ross and Macavia courts held that a New Jersey homeowner may under Section 1322(c)(1) provide in his or her Chapter 13 plan for cure of any de faults and reinstatement of the mortgage on his primary residence following the entry of a foreclosure judgment and conduct of a sheriffs sale until the actual delivery of the sheriffs deed to the successful purchaser. See In re Ross, 191 B.R. at 621 (“We conclude that a New Jersey foreclosure sale is complete when the sheriff delivers the deed to the successful purchaser. Therefore, in New Jersey, under § 1322(c)(1), a Chapter 13 debtor may cure a default and reinstate a residential mortgage following the entry of a foreclosure judgment and the conduct of a sheriffs sale, until the actual delivery of a sheriffs deed to the successful purchaser.”) See In re Macavia, Id. at 5 (“[A]t the time of the filing the Debtors retained an interest in the property in that the deed had not been delivered under New Jersey law the equity of redemption was not extinguished. Section 1322(c)(1) allows a debtor to cure until the foreclosure sale is complete. Since the sale is not complete until the delivery of the deed ' and the Debtors filed before delivery, they retain their right to cure the default through their Chapter 13 plan.”). For the reasons" }, { "docid": "19074924", "title": "", "text": "they filed chapter 13. In re Sims, 185 B.R. 853, 864-66 (Bankr.N.D.Ala.1995) (section 1322(c)(1) clearly and unambiguously sets a bright-line date, the date of the actual foreclosure sale, as the cut-off to cure a default under a mortgage), cited with approval in Commercial Fed. Mortgage Corp. v. Smith (In re Smith), 85 F.3d 1555, 1558 n. 3 (11th Cir.1996); accord Cottrell v. United States (In re Cottrell), 213 B.R. 378, 381 (Bankr.M.D.Ala.1996); Krawczyk v. United States (In re Krawczyk), 201 B.R. 589, 591 (Bankr.N.D.Ga.1996); In re Little, 201 B.R. 98, 108 (Bankr.D.N.J.1996); In re Ziyambe, 200 B.R. 790, 799 (Bankr.D.N.J.1996); In re Blair, 196 B.R. 477, 480 (Bankr.E.D.Ark.1996); see In re Simmons, 202 B.R. 198, 202-203 (Bankr.D.N.J.1996) (“[I]t is reasonable to assume that Congress used the term foreclosure sale in its customary sense[,]” i.e., the date of the actual sale.); accord In re Hric, 208 B.R. 21, 25 (Bankr.D.N.J.1997). Finding that a debtor’s ability to cure a mortgage default under section 1322(b) is terminated under section 1322(c)(1) on the date of a foreclosure sale is in accord with the policy of establishing a uniform set of laws governing consumer bankruptcy. See, e.g., Grubbs v. Houston First Am. Sav. Ass’n, 730 F.2d 236, 241 n. 9 (5th Cir.1984), quoted in Ziyambe, 200 B.R. at 798; see also Wright v. Union Ins. Co., 304 U.S. 502, 517, 58 S.Ct. 1025, 1033-34, 82 L.Ed. 1490 (1938) (Congress has the power to modify and affect the property rights established under state law in bankruptcy); Jim Walter Homes, Inc. v. Spears (In re Thompson), 894 F.2d 1227, 1230 & 1231 (10th Cir.1990) (interpretation of section 1322 is a question of federal law) (Baldoek, J., concurring) (pre-section 1322(c)(1) case recognizing that Art. I, § 8 of the Constitution empowers Congress to establish uniform bankruptcy laws, and this “provision undoubtedly authorizes Congress to promulgate a federal statute delineating a time limitation on the right to cure a defaulted residential mortgage under § 1322(b)”). It also does not offend the goals of chapter 13 of affording wage earners an opportunity to retain their homes while at the same" } ]

[ { "docid": "22281884", "title": "", "text": "a firearm. See United States v. Funches, 135 F.3d 1405, 1407 (11th Cir.)(stating that a § 922 offense is a strict liability offense and a defendant’s state of mind is generally irrelevant), cert. denied, 524 U.S. 962, 118 S.Ct. 2389, 141 L.Ed.2d 754 (1998). The mandatory sentence of 15 years was not grossly disproportionate to his offense. We add that every circuit to have considered this issue has concluded that the 15-year minimum mandatory sentence under ACCA is neither disproportionate to the offense nor cruel and unusual punishment. See e.g., United States v. Cardoza, 129 F.3d 6, 18 (1st Cir.1997)(affirming sentence of 235-month imprisonment for possession of a single bullet in light of previous felony convictions); United States v. Presley, 52 F.3d 64, 68 (4th Cir.1995)(hold-ing that a 15-year sentence under the ACCA is neither disproportionate to the offense nor cruel and unusual punishment); United States v. Warren, 973 F.2d 1304, 1311 (6th Cir.1992)(upholding 15-year sentence where the defendant had pawned a pistol and later retrieved it, allegedly for a friend); United States v. Mitchell, 932 F.2d 1027, 1028 (2d. Cir.1991)(dismissing claim that 15 years’ imprisonment for violations of 18 U.S.C. § 922(g) is cruel and unusual punishment under the Eighth Amendment); United States v. Hayes, 919 F.2d 1262, 1266 (7th Cir.1990)(holding that “ ‘[a] mandatory minimum sentence of fifteen years for a defendant with three prior felony convictions (and who has now been convicted of yet another felony) is not constitutionally disproportionate.’ ’’)(quoting United States v. Dombrowski, 877 F.2d 520, 526 (7th Cir.1989), cert. denied, 496 U.S. 907, 110 S.Ct. 2592, 110 L.Ed.2d 272 (1990)); United States v. Baker, 850 F.2d 1365, 1372 (9th Cir.1988)(upholding 15-year sentence in face of Eighth Amendment challenge even though defendant testified that he did not know the guns were in his car). We are also satisfied that the district court did not err in denying Reynolds a downward departure based on a lesser harms theory under U.S.S.G. § 5K2.11. Generally, a defendant may not appeal a district court’s refusal to depart downward. See United States v. Webb, 139 F.3d 1390, 1394 (11th Cir.1998)." } ]

[ { "docid": "7168628", "title": "", "text": "or that the juror be questioned about sleeping. Rafidi’s counsel did not object to the district court’s proposed solution nor did counsel move for a mistrial. Because defense counsel did not request any further action and did not raise the issue again during trial, we cannot say that the district court plainly erred in addressing defense counsel’s sleeping-juror allegation. D. Rafidi’s Sentence Does Not Violate the Eighth Amendment Lastly, Rafidi argues that the application of 18 U.S.C. § 924(c)(1)(A)’s sentencing enhancement to his § 111 charge violates the Eighth Amendment. Appellant Br. at 41. We review constitutional challenges to a sentence de novo. United States v. Jones, 569 F.3d 569, 573 (6th Cir. 2009). Under the Eighth Amendment, “there is no requirement of strict proportionality” between crime and sentence; rather, under the “narrow proportionality principle,” “the eighth amendment is offended only by an extreme disparity.” Id. (internal quotation marks omitted); see Harmelin v. Michigan, 501 U.S. 957, 996-1009, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring). According to Rafidi, his sentence “is grossly disproportionate to the severity of his momentary offense conduct” and is thus unconstitutional. Appellant Br. at 43. We disagree. Section 924(e)(1)(A)(ii) imposes a minimum sentence of seven years, to be served consecutively, if a firearm is brandished “during and in relation to any crime of violence or drug trafficking crime.” The district court sentenced Rafidi to 84 months of imprisonment on the § 924(c) count. R. 61 (Sentencing Tr. at 21) (Page ID # 981). “In general, Eighth Amendment jurisprudence grants ‘substantial deference’ to the legislatures who determine the types and limits of punishments.” United States v. Moore, 643 F.3d 451, 456 (6th Cir. 2011) (quoting Harmelin, 501 U.S. at 999, 111 S.Ct. 2680). As the government addresses, “[a] sentence within the statutory maximum set by statute generally does not constitute ‘cruel and unusual punishment.’ ” Id. at 455 (alteration in original) (internal quotation marks omitted); see Appellee Br. at 54. Here, the jury found Rafidi guilty of § 924(c) for brandishing a firearm at federal officers; Congress chose to impose a mandatory minimum sentence" }, { "docid": "22594653", "title": "", "text": "counsel cross-examined each government witness about his or her potential biases and credibility issues, and the district court instructed the jury about how to utilize co-conspirator and paid-informant testimony during Goodwin’s testimony and after Payne testified, respectively. See Doc. 123 (Trial Tr. # 1 at 34); Doc. 124 (Trial Tr. #2 at 98). Graham stated on the record, outside the jury’s presence, that he understood his right to testify and that he did not want to testify. Doc. 125 (Trial Tr. # 3 at 55-56). From our review of the entire trial transcript, we conclude that there was sufficient evidence, viewed in the light most favorable to the government, from which a reasonable jury could have found the essential elements of Counts One, Six, and Seven beyond a reasonable doubt. B. Denial of Graham’s Motion to Disregard Life Sentence 1. Impact of United States v. Hill We review de novo a constitutional challenge to a sentence. United States v. Jones, 569 F.3d 569, 573 (6th Cir.2009). Graham argues that the district court erred because his sentence, pursuant to 21 U.S.C. § 841(b)(1)(A)(iii), is grossly disproportionate under the Eighth Amendment as a result of an over-stated criminal history and in comparison to his co-defendants’ sentences. Graham acknowledges this court’s decision in United States v. Hill that mandatory minimum sentences under 21 U.S.C. § 841(b)(1)(A)(iii) do not constitute cruel and unusual punishment. United States v. Hill, 30 F.3d 48, 50-51 (6th Cir.), cert. denied, 513 U.S. 943, 115 S.Ct. 350, 130 L.Ed.2d 305 (1994), 513 U.S. 1025, 115 S.Ct. 597, 130 L.Ed.2d 508 (1994). Hill confirmed that this court adheres to the Supreme Court’s “ ‘narrow proportionality principle’ ” announced in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), stating that “the Eighth Amendment only prohibits] ‘extreme sentences that are “grossly disproportionate” to the crime.’ ” Hill, 30 F.3d at 50 (quoting Harmelin, 501 U.S. at 995-97, 1001, 111 S.Ct. 2680); Harmelin, 501 U.S. at 994-95, 111 S.Ct. 2680 (“Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense.... ”). Graham attempts" }, { "docid": "22573588", "title": "", "text": "Rather, it forbids only extreme sentences that are grossly disproportionate to the crime.’ ” United States v. Layne, 324 F.3d 464, 473 (6th Cir.2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., joined by O’Connor, J., and Souter, J., concurring)) (second set of internal quotation marks omitted). Further, the Constitution does not require comparative proportionality. Layne, 324 F.3d at 474. A mandatory life sentence for a drug violation does not, per se, offend the Eighth Amendment. See Harmelin, 501 U.S. at 1005, 111 S.Ct. 2680 (Kennedy, J., joined by O’Connor, J., and Souter, J., concurring) (stating that mandatory a life sentence for possession of 672 grams of cocaine “does not give rise to an inference of gross disproportionality”). Walls does not directly argue that his sentence is disproportionate and in violation of the Eighth Amendment. Rather, Walls asks this court to “require a proportionality review by district courts in cases ... [where] a life sentence is not required.” Walls Br. at 17. He asserts that his case should be remanded because the district court failed to make such a review. Walls concedes that this argument is subject to plain-error review. Id. at 16. Regardless of the level of review, however, Walls’s argument is unpersuasive. Walls cites a Fourth Circuit case, United States v. Kratsas, 45 F.3d 63 (4th Cir.1995), for the proposition that a proportionality review should be required before a court can impose a life sentence. Kratsas, 45 F.3d at 67. The Kratsas Court applied a three-part test when conducting such a review, which looked to “(1) the gravity of the offense and the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions.” Id. at 66 (citing Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)). Kratsas is not relevant in light of recent sentencing developments. Kratsas was decided before the sentencing guidelines became advisory in 2005 as a result of the Supreme Court’s decision" }, { "docid": "6637188", "title": "", "text": "remarked that, if he had the authority to do so, he would consider imposing a sentence below the statutory minimum due to the circumstances of the offense and Moore’s mental deficiencies. R. 49 at 32. He nevertheless acknowledged that he did not possess that authority and proceeded to sentence Moore to 180 months’ imprisonment. Moore filed a timely appeal. II. Moore argues that his mandated minimum sentence of fifteen years’ imprisonment violates the Eighth Amendment’s ban on cruel and unusual punishment. At the heart of his argument is the belief that a unique mitigating factor — his reduced culpability resulting from mental retardation — transforms an otherwise constitutional sentence into an unconstitutional one. In United States v. Tucker, we held that “[ijmposing a mandatory minimum sentence on a defendant with limited mental capabilities does not violate the Eighth Amendment ban against cruel and unusual punishment.” 204 Fed.Appx. 518, 521 (6th Cir.2006). We see no reason to depart from Tucker. Further, all of the circumstances of this case, including Moore’s mildly diminished mental capacity, convince us that the district court’s sentence was not grossly disproportionate to the crime committed. A. As an initial matter, “[a] constitutional challenge to a sentence is a question of law and reviewed de novo.” United States v. Jones, 569 F.3d 569, 573 (6th Cir.2009) (quoting United States v. Marks, 209 F.3d 577, 583 (6th Cir.2000)). While it appears that Moore may not have raised this issue below, we need not decide whether plain error review is appropriate because his argument fails even under de novo review. B. The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend. VIII. Moore is correct that the Supreme Court has interpreted the Eighth Amendment to contain a “narrow proportionality principle.” Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring); United States v. Layne, 324 F.3d 464, 474 (6th Cir.2003). But that interpretation “does not require strict proportionality between crime and sentence.” Harmelin, 501 U.S. at 1001, 111 S.Ct. 2680" }, { "docid": "23369817", "title": "", "text": "punishment. Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (quoting Solem v. Helm, 463 U.S. 277, 289-290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (quoting Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (“Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.”)))- Two consecutive sentences of 25 years to life-with parole eligibility only after the minimum 50 years-is obviously severe. Nevertheless, it is the sentence mandated by the citizens of California through the democratic initiative process and, additionally, legislated by their elected representatives. Cal. Pen.Code § 667(e)(2)(A) (“three strikes” provision mandating minimum term of 25 years for recidivist felon); Cal. Pen.Code § 1170.12 (codifying state-wide initiative identical to “three strikes” legislation). It has long been the law of this Circuit that, “[generally, as long as the sentence imposed on a defendant does not exceed statutory limits, this court will not overturn it on Eighth Amendment grounds.” U.S. v. Parker, 241 F.3d 1114, 1117 (9th Cir.2001) (citing United States v. Zavala-Serra, 853 F.2d 1512, 1518 (9th Cir.1988) (citing United States v. Washington, 578 F.2d 256, 258 (9th Cir.1978))). This case presents no opportunity to set aside, or qualify, this long-established and sound precedent. I In reversing Appellant’s sentence, the majority purports to rely on the opinion of Justice Kennedy in Harmelin v. Michigan, 501 U.S. at 996, 111 S.Ct. 2680 (Kennedy, J., concurring in the judgment). That opinion (joined by two other members of the court) held that the Eighth Amendment “forbids extreme sentences that are ‘grossly disproportionate’ to the crime.” Id. at 1001, 111 S.Ct. 2680. While recognizing that the Eighth Amendment includes a “proportionality principle,” Justice Kennedy also acknowledged that “its precise contours are unclear.” Id. at 998, 111 S.Ct. 2680. He attempted to “give content to the uses and limits of proportionality review” by identifying four principles that inform the Court’s application of the Eighth Amendment to lengthy prison terms. Id. Each of the four principles underlying Harmelin’s “gross disproportionality” analysis favors the affirmance of Appellant’s sentence." }, { "docid": "6637196", "title": "", "text": "at 999, 111 S.Ct. 2680 (Kennedy, J., concurring). It is settled that legislatures may define criminal punishments without giving courts sentencing discretion. Id. at 1006, 111 S.Ct. 2680 (citing Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991)). In fact, this Court has previously held that the very punishment Moore received — fifteen years under the Armed Career Criminal Act — withstands Eighth Amendment review as applied to the facts of those cases. United States v. Warren, 973 F.2d 1304, 1311 (6th Cir.1992); United States v. Pedigo, 879 F.2d 1315, 1320 (6th Cir.1989). Other courts of appeals have reached the same conclusion. See, e.g., United States v. Cardoza, 129 F.3d 6, 18 (1st Cir.1997); United States v. Presley, 52 F.3d 64, 68 (4th Cir.1995); United States v. Hayes, 919 F.2d 1262, 1266 (7th Cir.1990); United States v. Baker, 850 F.2d 1365, 1372 (9th Cir.1988); United States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir.2000). And we are aware of no court of appeals decision that has struck down the Armed Career Criminal Act as violative of the Eighth Amendment. Because a “threshold comparison” of the gravity of Moore’s offense and the severity of his sentence does not reveal an inference of gross disproportionality, we need not engage in the second step of the proportionality analysis by comparing his sentence with those of offenders in this and other jurisdictions. Harmelin, 501 U.S. at 1005, 111 S.Ct. 2680 (Kennedy, J., concurring). C. Moore’s suggestion that his sentence is rendered unconstitutional by the decision in Graham v. Florida, — U.S. -, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010), is also unavailing. The Graham Court’s holding was narrow: The Eighth Amendment prohibits the sentence of life without parole for juvenile offenders who do not commit homicide. Id. at 2030. In adopting a categorical approach, the Court drew a line exempting a specific class of offender (juveniles who do not commit homicide) from a specific punishment (life without the possibility of parole). But this approach does not apply in every Eighth Amendment challenge. To begin, the penalty was" }, { "docid": "11179569", "title": "", "text": "who have been convicted previously of three violent felonies or serious drug offenses are subject to its minimum fifteen-year sentence.” United States v. Gilliard, 847 F.2d 21, 26 (1st Cir.1988) (quoting ELR.Rep. No. 1073, at 2 (1984), reprinted in 1984 U.S.C.C.A.N. 3661, 3662). Other circuits have held that mandatory ACCA sentences are not grossly disproportionate to the offense of being a felon in possession of a firearm. See, e.g., United States v. Presley, 52 F.3d 64, 68 (4th Cir.1995) (“[A] fifteen-year sentence under ACCA is neither disproportionate to the offense nor cruel and unusual punishment, and thus does not violate the Eighth Amendment.”); United States v. Johnson, 22 F.3d 674, 683 (6th Cir.1994) (“Under the totality of the circumstances, the fifteen-year sentence does not constitute cruel and unusual punishment.”). Having rejected Orona’s argument that he is less culpable for his present offense based on the juvenile predicate offense, we see no reason to depart from that view with respect to Orona’s specific Eighth Amendment challenge. We accordingly hold that the use of Orona’s juvenile adju dication as a predicate offense for ACCA purposes does not violate the Eighth Amendment’s ban on cruel and unusual punishment. Ill In addition to his Eighth Amendment claim, Orona contends that the residual clause of ACCA is unconstitutionally vague. We review whether a statute is unconstitutionally vague de novo. United States v. Michel, 446 F.3d 1122, 1135 (10th Cir.2006). “The void-for-vagueness doctrine provides that a penal statute must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Id. (quotation omitted). ACCA defines “violent felony” as including any crime that is “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B). In Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), the Supreme Court held that felony driving under the influence did not qualify because it was not “roughly similar, in kind as well as\" in degree" }, { "docid": "6637189", "title": "", "text": "that the district court’s sentence was not grossly disproportionate to the crime committed. A. As an initial matter, “[a] constitutional challenge to a sentence is a question of law and reviewed de novo.” United States v. Jones, 569 F.3d 569, 573 (6th Cir.2009) (quoting United States v. Marks, 209 F.3d 577, 583 (6th Cir.2000)). While it appears that Moore may not have raised this issue below, we need not decide whether plain error review is appropriate because his argument fails even under de novo review. B. The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend. VIII. Moore is correct that the Supreme Court has interpreted the Eighth Amendment to contain a “narrow proportionality principle.” Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring); United States v. Layne, 324 F.3d 464, 474 (6th Cir.2003). But that interpretation “does not require strict proportionality between crime and sentence.” Harmelin, 501 U.S. at 1001, 111 S.Ct. 2680 (Kennedy, J., concurring) (citing Solem v. Helm, 463 U.S. 277, 288, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)); see also Rummel v. Estelle, 445 U.S. 263, 271, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (Eighth Amendment “prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime”); Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (Eighth Amendment prohibits “grossly disproportionate” sentences); Weems v. United States, 217 U.S. 349, 371, 30 S.Ct. 544, 54 L.Ed. 793 (1910) (Eighth Amendment prohibits “greatly disproportioned” sentences) (quoting O’Neil v. Vermont, 144 U.S. 323, 340, 12 S.Ct. 693, 36 L.Ed. 450 (1892) (Field, J., dissenting)). Nor does it require consideration of a defendant’s mitigating factors. Harmelin, 501 U.S. at 995, 111 S.Ct. 2680. Rather, “only an extreme disparity between crime and sentence offends the Eighth Amendment.” Layne, 324 F.3d at 474 (quoting Marks, 209 F.3d at 583). While we have traditionally not engaged in proportionality review when the sentence is a term of years, see United States v. Thomas, 49" }, { "docid": "7818489", "title": "", "text": "cellular telephone to the residence in question while the undercover agent was waiting to complete the sale. The beeper had the telephone number for the residence stored in its memory. Defendants have charged a number of assignments of error on appeal. First, Hickey argued that his mandatory sentence of life imprisonment violated the Eighth Amendment’s prohibition against cruel and unusual punishment. Hickey was sentenced pursuant to 21 U.S.C. § 841(b)(l)(A)(iii) which provides that a third felony drug conviction will subject a defendant to a mandatory term of life imprisonment without release. Although this circuit has considered and rejected a number of collateral attacks questioning the constitutionality of sentencing alternatives available under 21 U.S.C. § 841(b), see e.g., United States v. Williams, 962 F.2d 1218 (6th Cir.) (penalty scheme providing for a 100:1 ratio of crack or cocaine base to cocaine powder does not violate Equal Protection Clause of Fifth Amendment), cert. denied, - U.S. -, 113 S.Ct. 264, 121 L.Ed.2d 194 (1992); United States v. Pickett, 941 F.2d 411 (6th Cir.1991) (100:1 ratio of crack to cocaine does not violate substantive due process and does not constitute cruel and unusual punishment under the Eighth Amendment); United States v. Dunson, 940 F.2d 989 (6th Cir.1991) (mandatory 20-year sentence for second felony drug offense does not violate Eighth Amendment’s prohibition against cruel and unusual punishment), cert. denied, — U.S. -, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992), overruled by, United States v. Ferguson, 8 F.3d 385 (6th Cir.1993) (overruled on other grounds); United States v. Levy, 904 F.2d 1026 (6th Cir.1990) (failure to define “cocaine base” did not render 841(b) impermissibly vague), cert. denied sub nom., Black v. United States, 498 U.S. 1091, 111 S.Ct. 974, 112 L.Ed.2d 1060 (1991), it has not directly decided if a mandatory term of life imprisonment without release upon a third felony drug conviction violates the Eighth Amendment’s prohibition against cruel and unusual punishment. In reviewing Eighth Amendment challenges, this circuit has adhered to the “narrow proportionality principle” articulated in Harmelin v. Michigan, 501 U.S. 957, 995-97, 111 S.Ct. 2680, 2702, 115 L.Ed.2d 836 (1991) (Kennedy," }, { "docid": "7209858", "title": "", "text": "photos and the description of his vehicle. He was arrested by the Louisville Metro Police Crimes Against Children Unit, and indicted on the charge of attempting to persuade, induce, or entice a 14-year-old girl to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). The statute carries a mandatory minimum sentence of ten years of imprisonment. 18 U.S.C. § 2422(b). Hughes filed a motion to dismiss the indictment or delete the mandatory minimum sentence, claiming that the sentence constituted cruel and unusual punishment and violated his due process and equal protection rights. In a short order, the district court denied the motion, stating that the minimum sentence under 18 U.S.C. § 2422(b) is “rationally related to the legitimate interest of Congress in curtailing the coercion or enticement of minors over the internet,” and “[wjhile acknowledging the severity of a ten year sentence, the Court cannot conclude that such a sentence is grossly disproportionate to the alleged offense conduct in this case.” Hughes reserved the right to appeal and pled guilty. He was sentenced to the ten-year minimum and timely appealed. II “‘A constitutional challenge to a sentence is a question of law and reviewed de novo.’ ” United States v. Jones, 569 F.3d 569, 573 (6th Cir.2009) (quoting United States v. Marks, 209 F.3d 577, 583 (6th Cir.2000)). We have not previously addressed in a published opinion whether the mandatory minimum in 18 U.S.C. § 2422(b) is constitutional. We now hold that it is. A Hughes argues that the ten-year mandatory minimum is grossly disproportionate to his offense, thereby violating the Eighth Amendment’s protection against cruel and unusual punishment. The Supreme Court has adopted a “narrow proportionality principle” in evaluating Eighth Amendment claims. Harmelin v. Michigan, 501 U.S. 957, 997, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in the judgment). In that case, Justice Kennedy wrote that, “[t]he Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Id. at 1001, 111 S.Ct. 2680. A defendant challenging" }, { "docid": "19347596", "title": "", "text": "Claim Davis argues that the 162-year sentence, which obviously amounts to a life sentence, constitutes cruel and unusual punishment. In support of this proposition, he stresses that he was eighteen and nineteen years old at the time of the commission of the offenses, and suffered from bipolar disorder and a severe learning disability, and had no prior convictions. While these are no doubt significant factors, we can grant no relief on this issue. Allegations of cruel and unusual punishment are legal questions subject to our de novo review. United States v. Haile, 685 F.3d 1211, 1222 (11th Cir.2012), cert. denied, — U.S. -, 133 S.Ct. 1723, 185 L.Ed.2d 785 (2013). Davis argues that the mandatory consecutive nature of his sentence violated the Eighth Amendment’s prohibition on cruel and unusual punishment. He views his sentence, totaling nearly 162 years, as grossly disproportionate when considering his youth, intellectual disability, and emotional maturity, and as especially harsh for a non-homicide offense. For its part, the Government relies on the rarity of successful proportionality cases for adult offenders outside the capital context. As applied to noncapital offenses, the Eighth Amendment encompasses at most only a narrow proportionality principle. United States v. Brant, 62 F.3d 367, 368 (11th Cir.1995) (citing Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)). We accord substantial deference to Congress: “In general, a sentence within the limits imposed by statute is neither excessive nor cruel and unusual under the Eighth Amendment.” United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir.2006) (quotation omitted). We must first make the determination whether a total sentence is grossly disproportionate to the offenses committed. Id. In United States v. Farley, 607 F.3d 1294, 1339 (11th Cir.2010), we held that the mandatory nature of a non-capital penalty is irrelevant for proportionality purposes, and observed that we have never found a term of imprisonment to violate the Eighth Amendment. Id. at 1343. Nor do we do so now. Here, Davis’s total sentence is unmistakably severe. However, a gross proportionality analysis necessarily compares the severity of a sentence to the crimes of con" }, { "docid": "6637195", "title": "", "text": "a defendant’s culpability is irrelevant in non-capital cases. In considering whether a punishment is grossly disproportionate, culpability plays a role. Solem, 463 U.S. at 293, 103 S.Ct. 3001. For example, a murder-by-contract may be viewed more seriously than other types of murder. Id. at 293-94, 103 S.Ct. 3001. A juvenile’s reduced culpability most certainly played a role in Graham v. Florida, — U.S. -, 130 S.Ct. 2011, 2026, 176 L.Ed.2d 825 (2010). And even here, Moore’s diminished culpability played a role in the district court’s decision to impose the minimum penalty under the statute. Still, we cannot say Moore’s mildly diminished mental capacity warrants a finding of gross disproportionality- Fifteen years is by any measure a considerable amount of time. But while “[s]evere, mandatory penalties may be cruel, ... they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation’s history.” Harmelin, 501 U.S. at 994-95, 111 S.Ct. 2680. In general, Eighth Amendment jurisprudence grants “substantial deference” to the legislatures who determine the types and limits of punishments. Id. at 999, 111 S.Ct. 2680 (Kennedy, J., concurring). It is settled that legislatures may define criminal punishments without giving courts sentencing discretion. Id. at 1006, 111 S.Ct. 2680 (citing Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991)). In fact, this Court has previously held that the very punishment Moore received — fifteen years under the Armed Career Criminal Act — withstands Eighth Amendment review as applied to the facts of those cases. United States v. Warren, 973 F.2d 1304, 1311 (6th Cir.1992); United States v. Pedigo, 879 F.2d 1315, 1320 (6th Cir.1989). Other courts of appeals have reached the same conclusion. See, e.g., United States v. Cardoza, 129 F.3d 6, 18 (1st Cir.1997); United States v. Presley, 52 F.3d 64, 68 (4th Cir.1995); United States v. Hayes, 919 F.2d 1262, 1266 (7th Cir.1990); United States v. Baker, 850 F.2d 1365, 1372 (9th Cir.1988); United States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir.2000). And we are aware of no court of appeals decision that has struck down the" }, { "docid": "1391060", "title": "", "text": "error harmless. James conceded throughout the trial that he grew the marijuana in Maine. Moreover, the jury had already heard, without objection, the recorded interview of James, in which he discussed the Massachusetts growing operation. Under these circumstances, therefore, we are confident the verdict would not have been different if the district court had excluded Bruce’s testimony. See United States v. Hicks, 575 F.3d 130, 143 (1st Cir. 2009). D. Eighth Amendment Claim Lastly, James contends his ten-year mandatory-minimum sentence for manufacturing marijuana is grossly disproportionate to the offense and, therefore, violates the Eighth Amendment. He points to the public’s evolving views on marijuana, including state-law decriminalization and legalization (medicinal and recreational) measures. He also cites the federal government’s general policy of not prosecuting cultivation and distribution activities that are in compliance with “strong and effective [state marijuana] regulatory and enforcement systems.” Memorandum from James M. Cole, Deputy Att’y Gen., U.S. Dep’t of Justice, for All U.S. Att’ys 2 (Aug. 29, 2013), available at https://www.justice. gov/iso/opa/resources/3052013829132756857 467.pdf. We review this Eighth Amendment challenge de novo. United States v. Raymond, 697 F.3d 32, 40 (1st Cir. 2012). “The Eighth Amendment, which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ ” Ewing v. California, 538 U.S. 11, 20, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (plurality opinion) (quoting Harmelin v. Michigan, 501 U.S. 957, 996-97, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in judgment)). This principle, however, “‘does not require strict proportionality between crime and sentence’ but rather ‘forbids only extreme sentences that are grossly disproportionate to the crime.’ ” Graham v. Florida, 560 U.S. 48, 60, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (quoting Harmelin, 501 U.S. at 997, 1000-01, 111 S.Ct. 2680 (Kennedy, J., concurring in part and concurring in judgment)). In determining whether a sentence is grossly disproportionate, we first undertake a threshold comparison between “the gravity of the offense and the severity of the sentence.” Id. at 60, 130 S.Ct. 2011. If, after making this threshold comparison, “we conclude there is no ‘gross disproportionality" }, { "docid": "8049332", "title": "", "text": "the Supreme Court’s decision in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), arguing that his sentence, like the life sentence imposed in Helm under a recidivist statute for writing a $100 “no-account” check, is “significantly disproportionate to his crime, and is therefore prohibited by the Eighth Amendment,” id. at 303, 103 S.Ct. at 3016-17. He acknowledges that we have rejected a facial challenge to the constitutionality of the ACCA, United States v. Gilliard, 847 F.2d 21, 27 (1st Cir.1988), and instead questions only the constitutionality of the ACCA provisions as applied to him, given that his possessory offense involved only one bullet. Although the Court in Helm stated that “[t]he constitutional principle of proportionality has been recognized explicitly in the Court for almost a century,” Helm, 463 U.S. at 286, 103 S.Ct. at 3007-08, it also recognized that “prior convictions are relevant to the sentencing decision”, id. at 296 n. 21, 103 S.Ct. at 3013 n. 21. Similarly, the Court’s most recent examination of proportionality has, at the very least, cast doubt on the exact method by which a reviewing court should approach such challenges in non-capital cases. In the plurality opinion of Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), two justices sought to limit proportionality review to capital cases only, id. at 994, 111 S.Ct. at 2701 (opinion of Scalia, J., joined by Rehnquist, C.J.), three justices recognized a “narrow proportionality principle,” id. at 997, 111 S.Ct. at 2702 (opinion of Kennedy, J., joined by O’Connor and Souter, JJ.), and three justices dissented on the grounds that Helm’s three-factor proportionality review controlled, id. at 1021, 111 S.Ct. at 2715-16 (White, J., dissenting, joined by Blackmun and Stevens, JJ.). We have interpreted Harmelin to require a defendant seeking proportionality review to demonstrate, at the threshold, an “initial inference of gross dis-proportionality,” Tart v. Commonwealth of Massachusetts, 949 F.2d 490, 503 n. 16 (1st Cir.1991), between the “gravity of [the] criminal conduct and the severity of the ... penalty” imposed, United States v. Bucuvalas, 970 F.2d 937, 946 (1st" }, { "docid": "23176096", "title": "", "text": "that Wiest committed the robberies, and used the gun to do them. C. Wiest argues that the mandatory minimum sentence of 684 months (57 years) for his three 18 U.S.C. § 924(c) convictions violates the Eighth Amendment. This court reviews de novo an Eighth Amendment challenge to a sentence. United States v. Paton, 535 F.3d 829, 837 (8th Cir.2008). Under 18 U.S.C. § 924(c)(1)(B) and (C), Wiest’s first conviction for a § 924(c) offense required a sentence of not less than 7 years, and the subsequent two convictions each required a 25-year sentence. All of the § 924(c) sentences must be served consecutively to one another and to Wiest’s robbery counts. 18 U.S.C. § 924(c)(l)(D)(ii). The “second or subsequent” conviction can occur in the same proceeding. Deal v. United States, 508 U.S. 129, 134-36, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). “The Eighth Amendment, which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ ” Ewing v. California, 538 U.S. 11, 20, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (rejecting an argument that California’s three-strikes law violated the Eighth Amendment in a case when Ewing was sentenced to 25-years-to-life after stealing three golf clubs) (quoting Harmelin v. Michigan, 501 U.S. 957, 996-97, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in the judgment)). It is exceedingly rare for an offense that does not have a capital sentence to violate the Eighth Amendment. Paton, 535 F.3d at 838 (upholding a life sentence for five counts of production of child pornography). This court has adopted Justice Kennedy’s analysis in Harmelin to determine whether a sentence is “grossly disproportionate” to a crime and thus violates the Eighth Amendment. See Henderson v. Norris, 258 F.3d 706, 708-09 (8th Cir. 2001). The following principles inform the proportionality analysis: “the primacy of the legislature, the variety of legitimate penological schemes, the nature of the federal system, and the requirement that proportionality review be guided by objective factors.” Harmelin, 501 U.S. at 1001, 111 S.Ct. 2680. These principles inform the final principle that the “Eighth" }, { "docid": "23369767", "title": "", "text": "with several previous convictions for non-violent offenses. The California Court of Appeal, in its 1997 decision affirming Andrade’s conviction, concluded that it did not. The constitutionality of life sentences for non-violent recidivists is controlled by several decisions rendered by the Supreme Court in the two decades prior to the state court’s decision. In Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), the Court upheld a sentence of life in prison with the possibility of parole for a three-time nonviolent felony recidivist. Three years later, in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), the Court reversed a sentence of life in prison without the possibility of parole for a seven-time non-violent felony recidivist. Finally, in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), a decision without a majority opinion, Justice Kennedy, writing for himself and two other justices, reconciled the Court’s prior decisions in Rummel and Solem and articulated a revised test. Under this test, the “Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Harmelin, 501 U.S. at 1001, 111 S.Ct. 2680 (Kennedy, J., concurring) (quoting Solem, 463 U.S. at 288, 303, 103 S.Ct. 3001). Our circuit and others regard Justice Kennedy’s test as “the rule of Harmelin” because it is the “position taken by those Members who concurred in the judgment! 1 on the narrowest grounds.... ” United States v. Bland, 961 F.2d 123, 128-29 (9th Cir.1992) (internal citation and quotation marks omitted); see also Henderson v. Norris, 258 F.3d 706, 709 (8th Cir.2001) (“Since Harmelin, our courts and others have applied the principles outlined in Mr. Justice Kennedy’s opinion to [Eighth Amendment] cases....”); United States v. Jones, 213 F.3d 1253, 1261 (10th Cir.2000) (“We have ruled that Justice Kennedy’s plurality opinion ... sets forth the applicable Eighth Amendment test.”); United States v. Harris, 154 F.3d 1082, 1084 (9th Cir.1998) (“Our court follows the narrow proportionality rule established by Justice Kennedy’s concurrence in Harme-lin ....”). A. Review of" }, { "docid": "23149250", "title": "", "text": "MacEwan contends that the 15-year mandatory minimum sentence required by § 2252A(b)(l) is unconstitutional because it violates the Eighth Amendment prohibition on cruel and unusual punishment, the separation of powers doctrine and the Fifth Amendment Due Process Clause right to an individualized sentence. We exercise plenary review over these constitutional challenges to the 15-year mandatory minimum sentence of § 2252A(b)(l). See Rodia, 194 F.3d at 469 (exercising plenary review over constitutional questions). We will deal with each contention in turn. A. MacEwan argues that the 15-year mandatory minimum sentence of § 2252A(b)(l) offends the Eighth Amendment as “cruel and unusual punishment,” because it is grossly disproportionate to the offenses that MacEwan committed and is at odds with the “evolving standards of decency” that are a part of American society. See Atkins v. Virginia, 536 U.S. 304, 311-312, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). In arguing that the mandatory minimum provision of § 2252A(b)(l) offends the Eighth Amendment, MacEwan cites no cases where any court has found that such a mandatory minimum non-lifetime sentence offends the Eighth Amendment. We will therefore begin our Eighth Amendment proportionality analysis by examining the framework presented by the Supreme Court in Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003), and Solem, v. Helm, 463 NS. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), and our own court in United States v. Rosenberg, 806 F.2d 1169 (3d Cir.1986). In Ewing, the plurality opinion states that the “Eighth Amendment, which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ ” 538 U.S. at 20, 123 S.Ct. 1179 (quoting Harmelin v. Michigan, 501 U.S. 957, 996-997, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in judgment)). When evaluating proportionality challenges to sentences under the Eighth Amendment, courts must examine three factors: (1) “the gravity of the .offense and the harshness of the penalty”; (2) “the sentences imposed on other criminals in the same jurisdiction”; and (3) “the sentences imposed for commission of the same crime in other jurisdictions.” Solem, 463" }, { "docid": "22573587", "title": "", "text": "as long as [it] remanded] consistent with the remand.” United States v. Tocco, 306 F.3d 279, 294 (6th Cir.2002) (internal quotation marks omitted). However, Walls does not specify what issues were left unresolved by the district judge. This is likely because there were no unresolved issues. The district judge stated that “much of what [the court] determined today ” may not be subject to appeal. Id. (emphasis added). This statement implicitly asserts that the district court did in fact determine things that day, during the resentencing hearing. Review of the transcript shows that the district judge did evaluate and determine every issue raised by Walls at the resen-tencing hearing; the district judge answered all of Walls’s objections, explained the necessary steps a district court must follow in sentencing after Booker, followed all of those steps, and explained why he was imposing a life sentence. Walls’s argument is not supported by the record. We therefore conclude that this argument is meritless. D. Proportionality Review “[T]he Eighth Amendment ‘does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime.’ ” United States v. Layne, 324 F.3d 464, 473 (6th Cir.2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., joined by O’Connor, J., and Souter, J., concurring)) (second set of internal quotation marks omitted). Further, the Constitution does not require comparative proportionality. Layne, 324 F.3d at 474. A mandatory life sentence for a drug violation does not, per se, offend the Eighth Amendment. See Harmelin, 501 U.S. at 1005, 111 S.Ct. 2680 (Kennedy, J., joined by O’Connor, J., and Souter, J., concurring) (stating that mandatory a life sentence for possession of 672 grams of cocaine “does not give rise to an inference of gross disproportionality”). Walls does not directly argue that his sentence is disproportionate and in violation of the Eighth Amendment. Rather, Walls asks this court to “require a proportionality review by district courts in cases ... [where] a life sentence is not required.” Walls Br. at 17. He asserts that his" }, { "docid": "7818490", "title": "", "text": "to cocaine does not violate substantive due process and does not constitute cruel and unusual punishment under the Eighth Amendment); United States v. Dunson, 940 F.2d 989 (6th Cir.1991) (mandatory 20-year sentence for second felony drug offense does not violate Eighth Amendment’s prohibition against cruel and unusual punishment), cert. denied, — U.S. -, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992), overruled by, United States v. Ferguson, 8 F.3d 385 (6th Cir.1993) (overruled on other grounds); United States v. Levy, 904 F.2d 1026 (6th Cir.1990) (failure to define “cocaine base” did not render 841(b) impermissibly vague), cert. denied sub nom., Black v. United States, 498 U.S. 1091, 111 S.Ct. 974, 112 L.Ed.2d 1060 (1991), it has not directly decided if a mandatory term of life imprisonment without release upon a third felony drug conviction violates the Eighth Amendment’s prohibition against cruel and unusual punishment. In reviewing Eighth Amendment challenges, this circuit has adhered to the “narrow proportionality principle” articulated in Harmelin v. Michigan, 501 U.S. 957, 995-97, 111 S.Ct. 2680, 2702, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring). See United States v. Hopper, 941 F.2d 419 (6th Cir.1991). In Harmelin, a plurality rejected the argument that the Eighth Amendment required a strict proportionality between crime and sentence and instead concluded that the Eighth Amendment only prohibited “extreme sentences that are ‘grossly disproportionate’ to the crime.” Harmelin, 501 U.S. at 1001, 111 S.Ct. at 2705. Applying its narrow proportionality principle, the plurality in Harmelin rejected defendant’s assertion that his life term without parole was disproportionate because it was his first felony conviction. Instead, the plurality observed that defendant had been convicted of possession of more than 650 grams of cocaine and determined that the seriousness of the offense warranted the severe sentence. Accordingly, the plurality concluded that Harmelin’s life term without parole was not “grossly disproportionate” to the crime for which he was convicted. In the instant case, Hickey was a third time offender, accountable for a violation involving 177.8 grams of cocaine base. Applying the narrow proportionality principle of Harmelin, this court concludes that Hickey’s mandatory life sentence without parole was" }, { "docid": "7209859", "title": "", "text": "to the ten-year minimum and timely appealed. II “‘A constitutional challenge to a sentence is a question of law and reviewed de novo.’ ” United States v. Jones, 569 F.3d 569, 573 (6th Cir.2009) (quoting United States v. Marks, 209 F.3d 577, 583 (6th Cir.2000)). We have not previously addressed in a published opinion whether the mandatory minimum in 18 U.S.C. § 2422(b) is constitutional. We now hold that it is. A Hughes argues that the ten-year mandatory minimum is grossly disproportionate to his offense, thereby violating the Eighth Amendment’s protection against cruel and unusual punishment. The Supreme Court has adopted a “narrow proportionality principle” in evaluating Eighth Amendment claims. Harmelin v. Michigan, 501 U.S. 957, 997, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in the judgment). In that case, Justice Kennedy wrote that, “[t]he Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Id. at 1001, 111 S.Ct. 2680. A defendant challenging his sentence under the Eighth Amendment has a tremendously difficult burden to meet. In the last century, the Supreme Court has struck down only a handful of non-capital sentences under the Eighth Amendment, and those cases have been egregious in the extreme. For example, the Court found a life sentence without the possibility of parole unconstitutional for the crime of uttering a “no account” check for $100. Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). In Harmelin, by contrast, the Supreme Court upheld a mandatory life sentence without the possibility of parole for possession of more than 650 grams of cocaine even where the defendant had no prior felony convictions. 501 U.S. at 961, 994, 111 S.Ct. 2680. In light of this precedent, Hughes’s ten-year sentence for attempting to entice a minor into sexual relations raises no inference that it is “grossly disproportionate.” The penalty in Solem was much more severe than the ten-year term to which Hughes was sentenced, and the defendant’s conduct in that case was relatively trivial." } ]